December 6, 2023

falter and fall of the Court

IMMEDIATE RELEASE 4 May 2023
WASHINGTON MERRY-GO-ROUND
Today’s Events in Historical Perspective
America’s Longest-Running Column Founded 1932
The falter and fall of the Court
By Douglas Cohn and Eleanor Clift         
 
          WASHINGTON — Today’s Supreme Court has been defined and diminished by two bad bookend decisions and two equally bad decisions in between. It went awry when justices failed to distinguish between judicial philosophy and political philosophy. Liberal and conservative judges follow, interpret, and revere the law, whereas liberal and conservative politicians vote their political ideologies. So, when enough Supreme Court judges supplanted judicial philosophy with political ideology the highest court in the land began to falter and fall in the public’s faith and in history’s judgement.
         The ruling to halt the recount in Florida of the 2000 election is remembered as the worst Supreme Court decision in modern memory, that is until last year’s decision to overturn Roe in the Dobbs decision. Where the 2000 Bush v. Gore decision removed the election dispute from the Florida courts and thereby declared the presidential victor, the Roe ruling took away a constitutional right from women to control their own bodies, a right that had been in place for almost 50 years.
          In between are two other landmark decisions that dramatically affected our country, and not for the better. The Heller decision in 2008 changed the gun culture by re-interpreting and replacing the Second Amendment’s right of a “well-regulated militia” to be armed with an individual’s right to own unlimited firearms.
          The 5-4 decision was Justice Antonin Scalia’s pet project, part of his originalist intentions to closely model modern life after what he claims the Founders intent—an intent he appears to have discovered in the unspoken depths of their minds rather than in the written words of their Constitution.  Under Scalia’s tutelage, the Supreme Court in effect rewrote the Second Amendment to usher in the rampant gun violence we see today, and to put a stranglehold on any significant gun regulation.
          Citizens United in 2010 completes the picture from Bush v. Gore to Dobbs. President Barack Obama warned Congress in his January 2020 State of the Union message, just days after the Court’s 5-4 ruling, that Citizens United “will open the floodgates for special interests – including foreign corporations – to spend without limit in our elections.” Justice Samuel Alito, seated with several other justices in the front row, shook his head and was seen to say, “Not true.”
          These four decisions have come to define the country, and it is not a stretch to say that each in its own way has lowered the public’s trust in the Supreme Court.
          Much of what the Court does is shielded from public view, which is why just-released batches of the late Justice John Paul Stevens’ private papers are so valuable. Stevens was appointed to the Court in 1975 by President Gerald Ford, and by the time he retired in 2010, a revered member of the Court, he was noted for his liberal views of jurisprudence, and his devotion to the law.
          The papers are from 1984 to 2005, and of particular interest are the notes the justices exchanged when debating Bush v. Gore in 2000. The notes are informal, referring to each other by their first names, but they reveal the schism over the decision with Justices Sandra Day O’Connor and Anthony Kennedy challenging Chief Justice William Rehnquist, who took the position that the Florida’s legislature, not the courts, should not have the final say in the election results, an opinion used 20 years later by outgoing President Donald Trump and Republicans in their efforts to overturn the 2020 election results.
          O’Connor and Kennedy rejected Rehnquist’s argument but voted with him nonetheless in the 5-4 decision that halted the Florida recount and handed the election to George W. Bush. The papers reveal O’Connor, a known Republican operative who had served as Speaker of the House in Arizona, played a stronger role than realized in steering the result. She later regretted the decision, saying she wished they had never taken the case, acknowledging it was bad law.
          Among the four scathing dissenters, the dissent authored by Stevens, was most prescient: “Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.”
 
          See Eleanor Clift’s latest book Selecting a President, and Douglas Cohn’s latest books The President’s First Year: The Only School for Presidents Is the Presidency and World War 4: Nine Scenarios (endorsed by seven flag officers).
          Twitter:  @douglas_cohn
          © 2023 U.S. News Syndicate, Inc.
          Distributed by U.S. News Syndicate, Inc.
END WASHINGTON MERRY-GO-ROUND

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