Back in last October, just a month before the election the Covid virus was raging and Congress was unable to agree on a relief package for the millions of unemployed, those soon to be evicted from their homes, the airline industry etc. but the Senate was full speed ahead to confirm another Theo-fascist to the Supreme Court, Since Supreme Court Justices are appointed for life, her confirmation will cement minority rule in this nation for decades to come.
The Republican controlled Senate, led by the odious Mitch McConnel pushed a Supreme Court Justice through just 2 weeks before Trump’s defeat. This is the same GOP that refused a hearing for a year to an Obama nominee, arguing that “the next President should pick the nominee.”
Everything she supported is opposed by the majority of the citizens of this nation. Makes no difference. The Court has been thoroughly politicized. Once I believed, and rightly so, that the Court’s first responsibility was to protect the individual and a minority from the tyranny of the majority. In the space of a decade the Court has changed to where it now imposes the tyranny of a minority.
The table has been turned since 2010 as Citizens United v. Federal Election Commission gave corporations the right to spend unlimited amounts in elections – as if corporations were people. And Shelby County v. Holder gave states the right to change election laws without the Federal government’s approval. Both were 5 – 4 decisions.
And let us not forget Bush v. Gore but let us recall previous Senate votes on nominees.
Sandra Day O’Connor was appointed by Reagan and got 99 votes. Antonim Scalia, also a Reagan appointee was confirmed 98 – 0. Anthony M. Kennedy got 97 votes. Ruth Bader Ginsburg got 96. Stephen Breyer got 87 votes. There was a clear bi-partisanship for highly qualified nominees.
As the Court as become politicized the yea votes have fallen – Clarence Thomas was confirmed 52-48. Sam Alito only 58 while Neil Gorsuch got only 52 votes.
And Brett Kavanaugh was “confirmed” with only 50 votes. Amy Coney-Barret got 52.
The left wing of the Democratic Party has begun mentioning the possibility of adding judges to the Court – “packing the Court” as the right characterizes it. The right also wants you to believe that this is a completely revolutionary idea.
It is not. It was been considered at least twice before; once by Theodore Roosevelt and once by FDR. In both instances the Court was striking down legislation passed by Congress and supported by the vast majority of Americans.
With lifetime appointments, it’s not unusual for Supreme Court justices to serve well past the average U.S. retirement age of 63. (Ruth Bader Ginsberg died at age 87 while still serving on the court and Antonin Scalia died at age 79 while still a Supreme Court justice.)
In the late 1930s, President Franklin D. Roosevelt wanted to put restrictions on the court when it came to age. Largely seen as a political ploy to change the court for favorable rulings on New Deal legislation, the Judicial Procedures Reform Bill of 1937, commonly referred to as the “court-packing plan,” was Roosevelt’s attempt to appoint additional justices to the Supreme Court for every justice older than 70 years, 6 months, who had served 10 years or more and refused to retire..
“We were in the midst of the worst economic crisis in our history. Roosevelt’s response to this economic crisis was to engage in a series of programs designed to manage a capitalist system in such a way as to make it work for the average American. And because he wasn’t particularly ideological, he was willing to try all kinds of things.”
Over the course of the Depression, Roosevelt was pushing through legislation and, beginning in May 1935, the Supreme Court began to strike down a number of the New Deal laws. “Over the next 13 months, the court struck down more pieces of legislation than at any other time in U.S. history. Roosevelt’s first New Deal program—in particular, its centerpiece, the National Recovery Administration, along with parts of the Agricultural Adjustment Act—had been struck down by unanimous and near-unanimous votes.
And so FDR began to think of adding justices to the Court. His idea met with instant opposition. When he won the election of 1936 in a landslide, Roosevelt decided to float the plan.
The plan was never voted on in Congress but it roused the Court. The Supreme Court justices went public in their opposition to it. “The chief justice (Charles Evans Hughes) testified before Congress that the Court was up to date in its work, countering Roosevelt’s stated purpose that the old justices needed help with their caseload.”
But the Court heard the music. Several justices switched sides allowing much of Roosevelt’s future legislation, including Social Security to be upheld when challenged.
When I was a kid grandparents lived with their children and their grandchildren. One of the kids took in their mom and pop while the rest of the kids were expected to kick into the pot to provide for their support.
That’s the way it was before Social Security.
Folks were expected to work until they died which usually wasn’t long. The average life expectancy for a male in the 1920s was 49 years. If you lived longer there was no expected retirement age. You worked until you could no longer work or until you could no longer find work.
Then you were expected to live on your savings. Home ownership at the time was below 20% in the lower working class and the average wage adjusted for inflation in today’s dollars was around $13,000. Usually old folks didn’t have sufficient resources to live on.
So you went to your children if you had any. It was expected. Grandma usually got one of the children’s bedrooms. Lacking family to fall back on old folks relied on charity, churches or became “wards” of the county poor house.
The Great Depression effectively put an end to living with your kids – your kids were now unemployed too and the elderly especially were in shocking economic free fall.
FDR desperate to make jobs and faced with massive unemployment came up with 2 ideas. Cut the workday from 8 hours to 6 or begin sending older folks money to get them out of the job market and shrink the labor force. He decided on the latter but insisted that workers pay for the program, to be known as Social Security.
The right immediately declared that this was socialism and an impingement on individual freedom and therefore unconstitutional. After all, why should I give you my money so that you can give it back to me when I am old? I can take care of myself thankyou!
Sounds familiar don’t it?
With a Supreme Court likely to strike it down, FDR turned up the heat with his plan to add justices. Congress DOES have the right to change the composition of the Court. The Court is in fact the most undemocratic institution of the U.S government. Its members are appointed, not elected. They are appointed for life. And their word is law. Kind of like 9 Kings and Queens.
The Court felt the heat and let the Social Security Act stand though it was challenged twice.
Amy Coney-Barrett was confirmed to the Court. She was sent on a mission by Donald Trump to strike down the Affordable Care Act which would cause some 20 million to lose their health benefits. There was no plan to replace it coming from Congress or the White House. She has also characterized abortion as barbaric.
With the death of Ruth Bader Ginsburg and the nomination of a polar opposite replacement, only one response makes any sense: Expand the Supreme Court. The only real question is by how much. There are other responses that can do some good — perhaps even more good. But without court expansion, the existing court can, and almost certainly will, strike them down.
Yes, some call it an extreme step. But there’s a more extreme step: Simply ignore the court’s decisions — as some Republicans argued in the 1850s, in response to the Dred Scott decision. More to the point, this is an extreme situation that demands extreme responses. As Boston College law professor Kent Greenfield tweeted on Sept. 21:
15 of the last 19 appointments were made by GOP Presidents. (16/20 when Trump got another.)
The last year a majority of the justices were Dem appointees: 1969. Meanwhile, the GOP won the popular vote in the presidential election only once in 30 years (2004).
In order to save our democracy it may be necessary to expand the Court.
It’s also been more than 20 years since Republicans represented a majority of voters in the Senate, making the condition of minority rule even more extreme. It’s also self-reinforcing.
American political elites have generally supported the strong form of judicial review that emerged in the late 19th century because the Supreme Court generally tracked with the constitutional views of the dominant political coalition. A Supreme Court representing an entrenched, unpopular minority faction that refuses to allow the popular majorities from the other party to effectively govern would be neither democratically legitimate nor politically stable.
Reform the Court. Abandon the Electoral College.
Comments are welcome.