Essay: The One Percent Court

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Reagan Republicans, skillful and abundantly financed, fought their way back from defeat. Rejecting the conservatism of Eisenhower-style Republicanism, which tended to respect the established norms of cultural tradition while seeking to serve the interests of business, they visualized an agenda for the Supreme Court of their dreams, which Jeffrey Toobin, in his 2007 book The Nine, neatly summed up: “Reverse Roe v. Wade and allow states to ban abortion. Expand executive power. End racial preferences intended to assist African Americans. Speed executions. Welcome religion into the public sphere.”

The Court today is far from a collection of neutral arbiters: it is divided almost equally along partisan lines.
To promote that agenda, they fashioned a compelling narrative based on a judicial philosophy called “originalism” and espoused by the intellectual soulmates of Bork, whom they reinvented as a martyr to leftist extremism. The task of Supreme Court justices was to stick to the text of the Constitution as faithfully as a fundamentalist clergyman to the word of God as revealed in Scripture. The words of the founding fathers should be applied precisely as they had understood them in 1787, in order to divine their “original intent.”

The effort to find “rights” not explicitly mentioned in the Constitution in order to expedite the purposes listed in the preamble — such as promoting the general welfare and establishing justice — was, in Bork’s view, a “heresy” practiced by liberal justices trying to cram radical social programs down the nation’s gullet. Never mind that said preamble seems to define that “original intent” more clearly and eloquently than any other source; after all, the framers wrote it.

Donning the robes and language of populism, the originalists insisted that wicked liberals who “made” new constitutional law were stealing the prerogative of the people to see their will enacted into law by elected representatives. Convincing as this was to the conservative mindset, it isn’t quite that simple. The Court today is far from a collection of neutral arbiters: it is divided almost equally along partisan lines. Of the four remaining reliably liberal justices, two were named by Clinton and two by Obama. Then there are two chosen by Reagan, one by the first President Bush, and two by George W. Bush. In important cases decided five to four, it is usually the Republican-chosen quintet that provides the victory.

Chief Justice John Roberts, left, and Associate Justice Antonin Scalia sit for a new group photograph, Tuesday, Sept. 29, 2009. (AP Photo/Charles Dharapak)

Chief Justice John Roberts, left, and Associate Justice Antonin Scalia sit for a new group photograph, Tuesday, Sept. 29, 2009. (AP Photo/Charles Dharapak)

Of course, many decisions do not follow a precise pattern; there are shifting alliances and surprising switches. But two facts stand out. One is that the “strict construction” members seem to have no trouble with ideological inconsistency. Chief Justice Roberts, in his confirmation hearings, announced that the justices were not to be rulemakers but merely “umpires,” while neglecting to mention that, although he was not among them, the “umpires” in Bush v. Gorehad called the game before it was over and awarded victory to the team they favored. Nor is it believable that justices who, like the dogmatic and authoritarian Scalia, freely admit in their opinions to a loathing of abortion or homosexuality have not let those deeply religious prejudices seep into their readings of the Constitution. Or that, when any of the justices defer to sweeping new executive powers in the presidentially launched and conducted “war on terror,” they aren’t aware that they are flatly contradicting the crystal-clear intention of the framers to avoid giving any president the authority of a monarch.

The right-wing counterrevolution promoted by Reagan set out to remake the judiciary in its own image. By now, it has almost completely succeeded. One evident proof of its achievement is the tendency of the Roberts Court to affirm the rights of property and organized wealth — especially of corporations — over the individual or the public interest in almost any contest with regulators or victims of abuse. Now, with its Citizens United decision, which virtually permits corporations to buy the government they desire through an election process incredibly and needlessly voracious for money, the Court has given a jet-powered boost to the move toward plutocratic control over our lives and fortunes.

The moral: Elections matter.
Once again, history rhymes. One of the Court’s greatest blunders was the 1857 Dred Scott decision, which legitimized the spread of slavery through all the territories destined for future statehood, thwarting expectations that “the peculiar institution” was on a gradual road to extinction. Outrage at the prospect of permanent dominance by the Slave Power spurred the election of Abraham Lincoln and the Civil War. It is no exaggeration to say that Citizens United creates the threat of our subjugation to a Money Power, against which democracy must struggle for its very life.

This is why the arbitrary and uncontested power of the Supreme Court is the subject of this special issue of The Nation. The moral: Elections matter. Does anyone think Barry Goldwater would have chosen Thurgood Marshall for the Supreme Court? Or John Kerry, Samuel Alito?

But the battle is on many fronts, and will be won not only by voters on election day but by citizens engaged at every level of democracy and in every peaceful form of protest. The nation imagined by its founders — those authors of “We the People,” who clearly intended this experience in self-government to include the many, not just the privileged few — is under siege by extraordinary concentrations of corporate power and private wealth, aided and abetted by an autocratic judiciary. There can be only one response to this usurpation of democracy: defiance.

So read on, sign on and join the resistance.

 

Bill Moyers and Bernard Weisberger, who has taught history at the University of Chicago and the University of Rochester, are longtime collaborators on books and television series, including A Walk Through the 20th Century and Report From Philadelphia: The Constitutional Convention of 1787. They are now working on The Fighting Spirit: The People vs. The First Gilded Age .

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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