Suasion and the Supreme Court...

 Politics are an integral part of American politics. It's 'the nature of the beast' so to speak. It's a, one could reasonably argue, a natural part of civil discourse and debate. For the legislative and executive branches of government, that is. The judicial branch was intended to interpret the constitution and to apply the rule of law equitably, so that everyone was treated equally under the law. With the doctrine of separation of powers, political ideologies and priorities were meant to be exclusive of the workings of the judicial branch. For the most part, a couple of centuries passed and things went as planned. I emphasize, for the most part...

Politics can be like a contagious disease, it tends to spread to places where it wasn't supposed to be. Like the Supreme Court. Thomas Jefferson and his Secretary of State, James Madison refused to even send a lawyer to argue Marbury vs Madison. M vs M was one of the most important and foundational cases in U.S. legal history. Chief Justice John Marshall and the court in this case established the principle of judicial review; the power of the court to declare laws unconstitutional. The is ruling gave the Supreme Court the power to the court to rule a law enacted by congress as unconstitutional. The Supreme Court has done so on numerous occasions; Brown vs Board of Education, Roe vs Wade...

Of course, today we are not dealing with a law enacted by Congress. We are dealing with Executive Orders, while being legal instruments of the executive branch are subject to judicial review. Were Congress to quit sitting on its hands and do what it should be doing, this might not be happening. The monkey wrench comes in deciding does the ruling of a federal district court constitute proper and appropriate  judicial review? In effect, a federal district judge is issuing a ruling binding on the entire nation when the entire nation is not the jurisdiction of that judge. 

Difficult as it may be to believe, there was a time when the Supreme Court decided it was not necessary to decide a case dealing with federal authority to ban slavery. The greatest irony of history? Perhaps... 19th century lawyers tended to regard precedent as a series of decisions affirming a principle, as opposed to modern day lawyers viewing a single decision as a binding precedent. 

History considers our most authoritarian president to be Franklin D. Roosevelt. Roosevelt devised a 'court-packing' plan to de-legitimize the court to disable the opinions of its four conservatives at the time. They had a record of striking down his 'New Deal' programs. He denounced the court in his famous 'fireside chat' radio programs and his court-packing proposal was so baleful that his own Democratic Party rejected it resoundingly. But the suasion of his campaign was so effective the court bent its jurisprudence to allow Roosevelt to do what he wanted. 

In 2010, deja vu revisits, all over again. In his state of the union address, Obama openly derided the justices for siding with "special interests" in the Citizens United decision. In 2012, Obama upped the pressure in advance of the court's decision on the constitutionality of Obamacare, waring against the extraordinary step of overturning a law that was passed by a strong majority of a democratically elected congress. He claimed this was a good example of illegitimate judicial activism, a group of unelected people overturning a duly constituted and passed law. Sound familiar? Obamacare was passed unilaterally. Not one single Republican vote. Not. One. 

These were not arguments on the proper role of the court, they were efforts to intimidate the court against going against the will of the people. And it worked. Chief Justice John Roberts changed his vote to rule Obamacare as constitutional. Such had never happened in the history of Supreme Court rulings. 

The court has been unduly influenced on the topic of gun control. In March 2020, Chuck Schumer stood on the steps of the Supreme Court building to bellow, "I want to tell you Gorsuch, I want to tell you Kavanaugh, you have unleashed the whirlwind, and you will pay the price. You won't know what hit you if you go forward with these awful decisions." Waves of protests followed targeting the justices at their homes. The Biden admin responded by conspicuously resisting providing law enforcement protection to the justices. The 2020 presidential candidates including Buttigieg and Harris endorsed court-packing. Biden attacked the court when it struck down his unconstitutional student loan plan to spend a half trillion dollars to forgive student loans without congressional approval. On the campaign trail he bragged, "The Supreme Court blocked it, but that didn't stop me." Lest we forget...

Trump's defiance of court orders are not unprecedented, not by any means. In fact, the threats to the judiciary have typically come from the democrats throughout the past century. The democrats are simply playing on the ignorance of the voters to history. 

#supremecourt #courtshopping #politicalhipocrasy