Essay: The One Percent Court

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A version of this essay will appear in an upcoming issue of The Nation, focusing on the Supreme Court. It will be available on newsstands Sept. 20, 2012.

Why a special issue of The Nation devoted to the Supreme Court? Because with partisan gridlock paralyzing both the president and Congress, the Court has more than ever become “the decider” — the most powerful branch of government, and one at the center of a controversy whose outcome may shape the course of democracy for generations to come.

By a paradox both historical and constitutional, the political appointees on the Roberts Court will never have to answer for their decisions to voters like you and me. Nor to the president or Congress: once they are confirmed, the Supreme Court’s justices, like all federal judges, serve for life or “good behaviour.”

The Constitution’s framers meant to secure the Court against political pressure from the electorate and arbitrary dismissal of its members from on high by presidents dissatisfied with their decisions. As the third branch of the new national government — one whose powers were to be divided to block overreach by any one of them — the Court would be equal to the executive and legislative arms, even though the president appointed its members with the concurrence of the Senate.

Second Justice of the U.S. Supreme Court John Marshall.

Fourth Chief Justice of the U.S. Supreme Court John Marshall.

That changed dramatically when John Marshall became the fourth chief justice in 1801, shortly before Thomas Jefferson took office. The two brilliant men were bitter rivals, members of opposing parties. Marshall was a Federalist, Jefferson a Republican (no kin to the present GOP). So the supposedly neutral Court has been thrown since its infancy onto the partisan battleground, where it remains to this day.

In a landmark case in 1803, Marshall refused to apply a 1789 law giving Congress a power not strictly authorized in the Constitution and therefore “unconstitutional.” With that decision, the Court was no longer merely equal to the other two branches. It had become superior — the last word on how the Constitution should be interpreted — and its lifelong members would never risk their jobs, no matter how much they fell out of step with changing times and values.

Marshall served for thirty-four years, exercising deft leadership and cementing two of his most cherished concerns into constitutional law. One was the supremacy of the national government over the states; the other, a hospitality to the interests of the manufacturing, commercial and financial corporations whose wealth swelled as the country expanded. Various decisions that he handed down sheltered them from state regulation, either by invoking the clause of the Constitution that forbade impairing the obligation of contracts, or by insisting on exclusive federal primacy in regulating interstate commerce.

During the Gilded Age the identity of the justices changed, but the Court’s romance with big business flourished.
During the Gilded Age the identity of the justices changed, but the Court’s romance with big business flourished. Reformist efforts to reconcile democracy and industrialism were generally rebuffed. The Court endowed corporations with personhood under the Fifth and Fourteenth Amendments — which guaranteed the rights to life, liberty, and due process of law — and interpreted the commerce clause so as to strike down legislation that tried to inflict on capitalism such “socialistic” and un-American horrors as forbidding the employment of small children in factories. The Court also looked unfavorably on limiting work hours in especially grueling or dangerous and disease-causing jobs; on breaking up the powerful trusts that steamrollered small competitors out of existence; on taxing incomes progressively; and on the right of workers to organize and strike. The Court’s mantra became “Just say no” to anything that smacked of progressive reform — including efforts to ameliorate the real-life misery of everyday people. By the turn of the twentieth century, populist and progressive forces were calling in vain for constitutional amendments or new legislation to end judicial review, but the majority on the Court remained hostile to democracy.

Even the national emergency of the Great Depression did not budge the Court’s majority, which began to invalidate the building blocks of the New Deal. But fortune and a Democratic landslide in 1936 broke the Court’s blockade. After Roosevelt tried and failed to add six extra justices, a series of resignations and deaths created vacancies that he quickly exploited. Eventually, in his twelve years in office, Roosevelt named not six but eight new justices. After almost 130 years of shielding those whom Roosevelt dubbed “economic royalists” from the effects of human suffering and popular discontent, the Court swung left, where it more or less stayed for some four decades, including more than 20 years of Republican administrations.

Chief justice Earl Warren addresses a national crime conference in 1967. (AP Photo)

Chief justice Earl Warren addresses a national crime conference in 1967. (AP Photo)

Under Chief Justice Earl Warren, an Eisenhower appointee, a shower of socially liberal decisions refreshed the roots of “liberty and justice for all”: Brown v. Board of Education, Baker v. Carr, Griswold v. Connecticut, Miranda v. Arizona, New York Times Co. v. Sullivan. These rulings in the aggregate ended segregation, decreed “one person, one vote” representation in state and federal election districts, guaranteed the right of couples to choose contraception, strengthened the rights of criminal suspects against governmental coercion, and shielded the freedom of the press from libel prosecutions. In the generally liberal atmosphere of the 1960s, frustrated conservatives could only grind their teeth and flaunt their opposition to changing values and mores with “Impeach Earl Warren” billboards and bumper stickers, but no attempt to do so ever made it to the floor of Congress.

But the days of dominant social liberalism were numbered. The last important victory scored by the shrinking number of progressive Democrats in the Senate was to defeat Ronald Reagan’s nomination of Robert Bork to the Court in 1987. In his confirmation hearings, Bork proved himself a vigorous and intellectually skilled opponent of almost every one of the Court’s rights-guaranteeing decisions for the preceding fifty years. His appointment would have pushed the Court toward a resurrection of the good old days when the captains of industry ruled politics and devout practitioners of the dominant Christian orthodoxy governed the lives of others.

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  • http://www.facebook.com/people/Barbara-Jarvis/100000447560556 Barbara Jarvis

    This corporate greedy domination is why our nation and the rest of the world is in such a mess today. It will destroy the earth as the uber riche do not have enuf sense or decency to reform themselves

  • barbarajeanmcwms

    Although 99% to 1% odds, favor “We the People” , positive results demands Action (not just thinking/complaining) by each and every one of the 99%!

  • Jonetta Kurtz

    Just another reason why this election is so important. Heaven forbid an appointee like Roberts or Scalia to join the current court.

  • Sscg831

    Thank you for giving the history of the court and there’s on for same. We All need to be part of the change back to WE THE PEOPLE.

  • linda hatfield-southern

    is anyone going to really listen and facilitate change?

  • Voter Power

    Thanks for the Artcle in Nation and the TV coverage of the issue. It is a critical issue. Petitions for an Ammendment to the Constitution are circulating to effectively overturn the Citizeb’s United ruling and prevent such decisions in the future. We must work together for success.

  • jim

    the Court like all government institutions has been purchased…signed, sealed and delivered. Wrote my congressman about how fed up I am about a do nothing, just say no Congress who cares less about people and most about money and got a letter back stating nothing…same old stuff. Too bad our government has lost sight of the common person and the oath to represent the people in a fair and honest way. Isn’t it sad that a political candidate for the presidency can make up lies, communicate them and do it with a smile…and worse…not even discuss the specifics of his campaign….but low and behold people but the bull#%^&.

  • http://twitter.com/Santamoniker Santamoniker

    Scalia the cow and Thomas the mute attend Koch events “playing Empire”.

  • Jan White

    Perhaps someone can shame these originalists into realizing that the Constitution is not intended to be merely a satisfying intellectual experiment, fantasy or pastime for old cronies in the twilight of their lives who have nothing better to do but sit around and cook up pet theories, but is rather intended to somehow improve our very real world. On the other hand, I suppose there is nothing to stop them from rendering their decisions in Chinese and basing their interpretations on Chinese law if they so desire(call it Chinese originalism), as long as in so doing, they themselves do not break any of our own laws. Pathetic, but likely true.

  • Jan White

    Given that in our system of government the Supreme Court, by definition, automatically has 100% supremacy, 100% legitimacy, and 100% authenticity, it is hard to understand what the originalist Justices are attempting to gain by creating a new theory such as originalism and trying to hold the other Justices to it. . In other words, they are already legally omnipotent, the Law of the Land, so why the need to justify their decisions at all with a brand new theory like this one? The only thing Justices can possibly hope to gain by originalism is the power to persuade or influence each other into voting the same way, by alliance, on the Court, since after all, theirs is supposedly the one identical way that the original framers of the Constitution would have voted. Or is it? How can anyone ever know with certainty how any of the original framers would have voted?
    Going further, since originalism suggests that there is theoretically only one correct way to vote on matters before the Court, why not simply program a computer to do their voting, assigning weights and percentages to legal precedents based on originalist theory, and then letting the computer decide the only one, correct, infallible outcome from there? Because in a real world and a real Court there will always be disagreement among humans. So on that basis alone, how can anyone argue that originalism serves any real purpose at all? I suppose the game is entirely given away whenever Justices are found to vote entirely along party lines, despite all their fancy theorizing. No need for a computer after all it turns out!
    Now think ahead to the next hundred or next thousand years on the Court, and ask yourself if future Justices will feel obligated in any way to the theory of originalism when making their decisions? Of course not! In reality, each will always make his or her own way, as well as his or her own reputation on the Court, as all past Justices have done, and as all of them have been chosen to do. Furthermore, the originalists do not have the power to hold future Supreme Court Justices to any premises at all. So again, originalism is shown to be nothing but intellectual hot air and nothing more than a completely redundant, and unnecessary display of arrogance and ego on the part of the originalists! It is a mere abberation of our unique day and time.

  • Jan White

    Is the Constitution merely an experiment to the originalists?
    I think the deepest flaw of Antonin Scalia and the other originalists on the Supreme Court is that they treat the US Constitution fundamentally as an experiment, and, as such, one that may either ultimately succeed or fail, it really isn’t up to them which. Their job, in other words, is merely to interpret it theoretically as it was intended in the eyes of the original framers, as seen in their day and time. And if America falls apart as a result of their intellectual pastime, then so be it. They fail to realize that they are charged not with theorizing, but with ensuring that the Constitution succeeds, and that it must in fact succeed at all costs, for all our sakes. By playing theorists only, they shirk their most basic duty as Supreme Court justices. Scalia, for example, can write the most obtuse law books endlessly discussing the most subtle points of law, yet he fails to realize that what he does on the Court is an everyday make or break test for America. The future and success of America are not merely theoreticals that should be taken for granted by any of the intellectuals on the Supreme Court.

    Perhaps, as a last resort, someone can shame these originalists into realizing that the Constitution is not intended to be merely a satisfying intellectual experiment, fantasy or pastime for old cronies in the twilight of their lives who have nothing better to do but sit around and cook up pet theories, but is rather intended to somehow improve our very real world. On the other hand, I suppose there is nothing to stop them from rendering their decisions in Chinese and basing their interpretations on Chinese law if they so desire(call it Chinese originalism), as long as in so doing, they themselves do not break any of our own laws, although they can no doubt overturn the ones they don’t like. Pathetic, but likely true.

    Given that in our system of government the Supreme Court, by definition, automatically has 100% supremacy, 100% legitimacy, and 100% authenticity, it is hard to understand what the originalist Justices are even attempting to gain by creating a new theory such as originalism and trying to steer the other Justices to it. In other words, they are already legally omnipotent, the Law of the Land, so why the need to justify their decisions at all with a brand new theory like this one? The only thing Justices can possibly hope to gain by originalism is the power to persuade or influence other Justices into voting the same way by alliance, since after all, theirs is supposedly the one and only way that the original framers of the Constitution would have voted. Or is it? How can anyone ever know with certainty how any of the original framers would have voted?

    Going further, since originalism suggests that there is theoretically only one correct way to decide on matters before the Court, why not simply program a computer to do their voting for them, assigning weights and percentages to legal precedents based on originalist theory, and then letting the computer decide the only one, correct, infallible outcome from there? Because in a real world and a real Court there will always be human disagreement. So on that basis alone, how can anyone argue that originalism serves any real purpose at all? The game is entirely given away whenever Justices are found to vote entirely along party lines, despite all their fancy theorizing. No need for a computer after all it turns out!

    Now, think ahead to the next hundred or next thousand years on the Court, and ask yourself if future Justices will feel obligated in any way to the theory of originalism when making their decisions? Of course not! In reality, each Justice will always make his or her own way, as well as his or her own reputation on the Court, as all past Justices have always done, and as all of them have been appointed to do. The idea that one Justice or a group of Justices can force guidelines on the others in the form of a theory is very presumptuous, and assumes that the other Justices are somehow not up to the task of making up their own minds without such guidance. How transparently silly! In fact, the originalists do not have the power to hold future Supreme Court Justices to originalism or to any premises whatsoever. So again, originalism is shown to be nothing but intellectual hot air and nothing more than a completely redundant, and unnecessary display of arrogance and ego on the part of its creators. It is a mere abberation of our unique day and time.

  • Steve Manning

    I agree that Supreme Court justices are really just voting their party or prejudices, which they attempt to explain away and justify with a lot of obtuse theorizing.

  • James Hires

    The Supreme Court is really just a 3rd branch of politics.

  • Jan White

    Why originalism is wrong–

    Is the Constitution merely an experiment to the originalists?
    I think the deepest flaw of Antonin Scalia and the other originalists on the Supreme Court is that they treat the US Constitution fundamentally as an experiment, and, as such, one that may either ultimately succeed or fail, it really isn’t up to them which. Their job, in other words, is merely to interpret it theoretically as it was intended in the eyes of the original framers, as seen in their day and time. And if America falls apart as a result of their intellectual pastime, then so be it. They fail to realize that they are charged not with theorizing, but with ensuring that the Constitution succeeds, and that it must in fact succeed at all costs, for all our sakes. By playing theorists only, they shirk their most basic duty as Supreme Court justices. Scalia, for example, can write the most obtuse law books endlessly discussing the most subtle points of law, yet he fails to realize that what he does on the Court is an everyday make or break test for America. The future and success of America are not merely theoreticals that should be taken for granted by any of the intellectuals on the Supreme Court.
    Perhaps, as a last resort, someone can shame these originalists into realizing that the Constitution is not intended to be merely a satisfying intellectual experiment, fantasy or pastime for old cronies in the twilight of their lives who have nothing better to do but sit around and cook up pet theories, but is rather intended to somehow improve our very real world. On the other hand, I suppose there is nothing to stop them from rendering their decisions in Chinese and basing their interpretations on Chinese law if they so desire(call it Chinese originalism), as long as in so doing, they themselves do not break any of our own laws, although they can no doubt overturn the ones they don’t like. Pathetic, but likely true.

    Given that in our system of government the Supreme Court, by definition, automatically has 100% supremacy, 100% legitimacy, and 100% authenticity, it is hard to understand what the originalist Justices are even attempting to gain by creating a new theory such as originalism and trying to steer the other Justices to it. In other words, they are already legally omnipotent, the Law of the Land, so why the need to justify their decisions at all with a brand new theory like this one? The only thing Justices can possibly hope to gain by originalism is the power to persuade or influence other Justices into voting the same way by alliance, since after all, theirs is supposedly the one and only way that the original framers of the Constitution would have voted. Or is it? How can anyone ever know with certainty how any of the original framers would have voted?

    Going further, since originalism suggests that there is theoretically only one correct way to decide on matters before the Court, why not simply program a computer to do their voting for them, assigning weights and percentages to legal precedents based on originalist theory, and then letting the computer decide the only one, correct, infallible outcome from there? Because in a real world and a real Court there will always be human disagreement. So on that basis alone, how can anyone argue that originalism serves any real purpose at all? The game is entirely given away whenever Justices are found to vote entirely along party lines, despite all their fancy theorizing. No need for a computer after all it turns out!

    Now, think ahead to the next hundred or next thousand years on the Court, and ask yourself if future Justices will feel obligated in any way to the theory of originalism when making their decisions? Of course not! In reality, each Justice will always make his or her own way, as well as his or her own reputation on the Court, as all past Justices have always done, and as all of them have been appointed to do. The idea that one Justice or a group of Justices can force guidelines on the others in the form of a theory is very presumptuous, and assumes that the other Justices are somehow not up to the task of making up their own minds without such guidance. How transparently silly! In fact, the originalists do not have the power to hold future Supreme Court Justices to originalism or to any premises whatsoever. So again, originalism is shown to be nothing but intellectual hot air and nothing more than a completely redundant, and unnecessary display of arrogance and ego on the part of its creators. It is a mere abberation of our unique day and time.

    I’d like to add 3 more points to the above rationale:

    Is Originalism asking the question “How would the Framers have voted in their own day and time?”, or is it asking instead “How would they have voted in our modern day given the modern context?” which is something we can never know. Obviously, the modern context does matter, although apparently not to the Originalists.

    Further, it puts things into revealing perspective to realize that by recruiting other omnipotent Justices using the theory of Originalism as a basis or framework for consensus, any Justice thereby multiplies his own omnipotence , thus doubling, tripling, quadrupling, etc. his own omnipotence by as many votes as he can garner that way using Originalism. Question: What could be more powerful that being omnipotent oneself? Why, recruiting omnipotent others, as only Supreme Court Justices are able to do! Such is the ultimate power, and the real and only reason for employing Originalism in the first place: to extend and multiply one’s own power by recruiting omnipotent others.

    Finally, isn’t it damningly suspicious that it always turns out that the original Framers would have voted, in every case, the same identical way as the Justice appealing to Originalism would have voted? What further proof is needed that Originalism is nothing more than self-promoting phoney baloney?

  • Rob Misek

    Neglected was the single most tragic manipulation of the Supreme Court and the American people of the twentieth century

    The unusual and contested appointment of the leader of the American Zionist organization Louis Brandeis to be the anti war president Woodrow Wilson’s special counsel to ww1

    They were soon lying to the world that the Lusitania wasn’t carrying ammunition

    Samuel landman the solicitor to the uk zionist organization wrote in his published. 1936 paper entitled the Balfour declaration that it was a definite contract between global zionists and the uk government to bring the us into ww1 in exchange for Palestine

    That Zionist betrayal of Germany entrenched nazism and made hitler what he was

    After ww2 Israel was declared by the allies and all our current Middle East problems born