Apolitical Justices

The reason the Founders created a Supreme Court whose justices are appointed for life was to insulate the justices from political pressure. Lifetime appointment meant no campaigning for office, no glad handing double-talk, no political favors to repay, no voters to please or be accountable to. In principle, it was probably a good call– though “lifetime” is a bit problematic in a democracy where the will of the populace changes from time to time.

It’s true you had former slaveholders, in the years after the Civil War, unappealably ruling things like “the day of the Negro as special favorites of the law is at an end,” [1] (effectively ending enforcement of human rights for the descendants of slaves in the U.S. for a century).

It’s also true that the constitutional amendment (the Fourteenth) that the Supreme Court placed in a judicially-induced coma for human beings, over the century after its enactment, conferred a cornucopia of expanded rights on corporations, those legally created eternal money-making entities. Our highest court has ruled that corporations are persons, just like the rest of us, with human feelings and inviolable human rights too, like the right to political expression.

And so on, there are many examples of deeply political decisions, but, the original idea of the Founders the so-called Originalists always cite was to have an apolitical court.

Of course, the reverent conservative Originalists of the Federalist Society, who go back to the intent of the Framers in the Constitutional debates while the original document was being negotiated, tend to play down the significance of the later Civil War, and the post-war Amendments that, between 1865 and 1868, gave us, essentially, a new constitution.

The original intent of the Founders, for example, was to quietly compromise with wealthy slaveholders in forming a democratic republic. The Constitution protected “the importation of other such persons” until 1807, and apportioned representation in Congress based on each of “such persons” being counted as 3/5 of a person. These discreet compromises to protect “The Peculiar Institution” were explicitly rejected as unlawful when the Constitution was amended after a bloody and protracted rebellion was finally won by the United States.

Except, as you know, that former slaveholders retained political power and got the final say on how these laws would be interpreted in their own localities for the next century or so. They are still litigating their right to do so in 2020.

The original vision of justice in our checks and balances republic, though, was an apolitical court to decide matters of what was constitutional and what was not.

In other eras, Supreme Court justices were not always nakedly partisan ideologues. An Eisenhower appointee, Earl Warren, presided over the most progressive court in our history. Warren, a lifelong Republican, was insulated from politics, though there was an outcry by some for his impeachment after his court ruled (in a unanimous decision) that segregated schools were inherently unequal. The Framers, we note, were completely silent on the matter of racial segregation at law.

The shit-storm that immediately followed the Warren Court’s 1954 Brown v. Board of Education decision to enforce equality under the law, as the amended Constitution required (albeit in tortured, somewhat ambiguous legalese [2]), was in hindsight, predictable. Over six decades, the anti-democratic lunatic fringe John Birch Society, an extremist outfit, has, with literally billions shrewdly invested to achieve this remarkable result, morphed into the present day Trump/Republican party.

This right-wing zealot that Mr. Trump is poised to force down the throats of America for a generation (the court must be expanded under president Biden if McConnell manages to ram her 51-49 nomination through, as he is expected to) is the latest in what Senator Susan Collins hoped Kavanaugh would provide — an end to partisan 5-4 decisions, (hello partisan 6-3 decisions!) .

We hear the sound bytes from a Judge Amy Coney Barrett speech, explaining what she learned at Antonin Scalia’s knee when she clerked for him — that the original intent of the wealthy white men who wrote the Constitution more than two hundred years ago is the only thing that truly matters when interpreting the document. Sounds fair enough. Except, of course, that the world has changed a bit since the end of the nineteenth century.

Here is a recent example of a non-political 5-4 party line Supreme Court ruling, to show how well the original intent of the Framers about an apolitical court has been carried on into our time. The case arose out of a partisan dispute in Wisconsin about what precautions were reasonable to accommodate voters during a surging pandemic [3].

A federal court had ruled that during a pandemic, when there was a spike in requests for mail-in ballots and ballots for many voters to mail back would not be received by voting day, it was reasonable for that the State of Wisconsin to extend by six days the postmarking and counting of mail-in ballots, to allow for fuller distribution and return of such ballots. The RNC appealed and the appeals court agreed with the lower court that the slight extension of the deadline be extended.

However, the RNC was determined, since a majority Republican Wisconsin state supreme court hung in the balance (one Republican judge was up for re-election), to have the case heard by the Supreme Court.

Remarkably, it was immediately taken up. and the quickly rendered decision stopping the extended mail-in balloting was handed down the day before voting day

As Boof “51-49” Kavanaugh, writing for the 5-4 conservative majority, frames the issue. Kavanaugh decided that the pandemic, though serious, is not an issue that may be taken into consideration, as Wisconsin’s Republican court and state senate had decreed when the governor unsuccessfully tried to postpone the state election during a surge in Covid-19 cases:

The question before the Court is a narrow, technical question about the absentee ballot process.

The sole question before the Court is whether absentee ballots now must be mailed and postmarked by election day, Tuesday, April 7, as state law would necessarily require, or instead may be mailed and
postmarked after election day, so long as they are received
by Monday, April 13.

This Court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.

The dissent is quite wrong on several points.

The Court’s decision on the narrow question before the
Court should not be viewed as expressing an opinion on the
broader question of whether to hold the election, or whether
other reforms or modifications in election procedures in
light of COVID–19 are appropriate. That point cannot be
stressed enough.

From Justice Ginsburg’s “quite wrong” dissent (worth a read, the entire dissent is only a few pages):

The District Court, acting in view of the dramatically evolving COVID–19 pandemic, entered a preliminary injunction to safeguard the availability of absentee voting in Wisconsin’s spring election. This Court now intervenes at the eleventh hour to prevent voters who have timely requested absentee ballots from casting their votes. I would not disturb the District Court’s disposition, which the Seventh Circuit allowed to stand.

A Wisconsin’s spring election is scheduled for tomorrow, Tuesday, April 7, 2020. At issue are the presidential primaries, a seat on the Wisconsin Supreme Court, three seats on the Wisconsin Court of Appeals, over 100 other judgeships, over 500 school board seats, and several thousand other positions.

As of April 2, Wisconsin had 1,550 confirmed cases of COVID–19 and 24 deaths attributable to the disease, “with evidence of increasing community spread.” On March 24, the Governor ordered Wisconsinites to stay at home until April 24 to slow the spread of the disease. Because gathering at the polling place now poses dire health risks, an unprecedented number of Wisconsin voters—at the encouragement of public officials—have turned to voting absentee. About one million more voters have requested absentee ballots in this election than in 2016. Accommodating the surge of absentee ballot requests has heavily burdened election officials, resulting in a severe backlog of ballots requested but not promptly mailed to voters.

The Court’s order requires absentee voters to postmark their ballots by election day, April 7—i.e., tomorrow—even if they did not receive their ballots by that date. That is a novel requirement. Recall that absentee ballots were originally due back to election officials on April 7, which the District Court extended to April 13. Neither of those deadlines carried a postmark-by requirement. While I do not doubt the good faith of my colleagues, the Court’s order, I fear, will result in massive disenfranchisement. A voter cannot deliver for postmarking a ballot she has not received. Yet tens of thousands of voters who timely requested ballots are unlikely to receive them by April 7, the Court’s postmark deadline. Rising concern about the COVID–19 pandemic has caused a late surge in absentee ballot requests.

The Court’s suggestion that the current situation is not “substantially different” from “an ordinary election” boggles the mind. Some 150,000 requests for absentee ballots have been processed since Thursday, state records indicate. The surge in absentee ballot requests has overwhelmed election officials, who face a huge backlog in sending ballots. As of Sunday morning, 12,000 ballots reportedly had not yet been mailed out. It takes days for a mailed ballot to reach its recipient—the postal service recommends budgeting a week—even without accounting for pandemic induced mail delays.

It is therefore likely that ballots mailed in recent days will not reach voters by tomorrow; for ballots not yet mailed, late arrival is all but certain. Under the District Court’s order, an absentee voter who receives a ballot after tomorrow could still have voted, as long as she delivered it to election officials by April 13.

… the Court’s order cites Purcell, apparently skeptical of the District Court’s intervention shortly before an election. Never mind that the District Court was reacting to a grave, rapidly developing public health crisis. If proximity to the election counseled hesitation when the District Court acted several days ago, this Court’s intervention today—even closer to the election—is all the more inappropriate.

… the Court notes that the District Court’s order allowed absentee voters to cast ballots after election day. If a voter already in line by the poll’s closing time can still vote, why should Wisconsin’s absentee voters, already in line to receive ballots, be denied the franchise?

The majority of this Court declares that this case presents a “narrow, technical question.” That is wrong. The question here is whether tens of thousands of Wisconsin citizens can vote safely in the midst of a pandemic. Under the District Court’s order, they would be able to do so. Even if they receive their absentee ballot in the days immediately following election day, they could return it. With the majority’s stay in place, that will not be possible. Either they will have to brave the polls, endangering their own and others’ safety. Or they will lose their right to vote, through no fault of their own. That is a matter of utmost importance—to the constitutional rights of Wisconsin’s citizens, the integrity of the State’s election process, and in this most extraordinary time, the health of the Nation.

You can judge for yourself whose position is more rooted in the facts of the case, the applicable law, justice, reason and common sense. Never mind any of that, 5-4!

The RNC’s Hail Mary and Kavanaugh’s lightning quick 5-4 order didn’t work, at least as far saving the seat of the Wisconsin Republican up for reelection to the Wisconsin Supreme Court. The fight continues, for certain.


Justice Joseph Bradley:

“When a man has emerged from slavery, and, by the aid of beneficent legislation, has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen and ceases to be the special favorite of the laws, and when his rights as a citizen or a man are to be protected in the ordinary modes by which other men’s rights are protected.”

Ruling in the “Civil Rights Cases of 1883″

I defamed Bradley, he was not a former slaveholder, neither were his 7 colleagues who voted to strike down a law intended to enforce the Civil War Amendments . By 1883 only one Justice on the court was. That judge wrote a powerful dissent:

The opinion ends with Justice Bradley saying, “There comes a time when, after the emergence of slavery, a person must take on the role of mere citizen and cease being a special favorite of the law.” And what the Court is announcing then is, “Reconstruction is over. You’re just like anyone else.”

There was only one justice who refused to join the majority. He was a starch-collared, fundamentalist Presbyterian and former slave holder from Kentucky named John Marshall Harlan. He was also the only justice who’d seen slavery and Reconstruction up close.

As attorney general of Kentucky just after the Civil War, Harlan had been a vocal opponent of the Thirteenth and Fourteenth Amendments. He’d been among the office holders who stirred white rage against freed slaves. In Harlan’s hometown of Frankfort alone, there were 64 catalogued acts of white supremacist terror against freed blacks and their political allies. When Harlan saw the bitter fruit of his politics, he’d been shamed.

Even though he was raised as a white supremacist, raised as a slave holder, at the same time he firmly believed that his father had been an honorable white man, that he had never abused power. That may be a myth, but that’s what he believed. And he wanted to live up to that kind of honor. And so people threw his history back in his face. And he said, “I would rather be right than consistent.”

The Northern members of the Court could talk in generalities about how the freedmen had become equal in the eyes of the law, and no longer needed the special help of the federal government. But Harlan knew better. He knew the predicament that blacks faced in the South. And he knew that civil rights could not be protected simply with the abstractions of the language of equality — that civil rights required the federal government to give the aid that was necessary.

Harlan determined to dissent in the Civil Rights Cases and to dissent loudly, but once he began to write, he found himself paralyzed … until his wife pulled from storage a strange memento the Harlans had bought: the inkstand Chief Justice Roger Taney had used to write his infamous Dred Scott decision, a decision in which he had observed that blacks had no rights a white man was bound to respect.

She cleaned it. She filled it with ink and she put it on his desk so that when he came home from church one Sunday it was sitting there. And in effect, what she was reminding her husband was that the Dred Scott case needed to be undone.

Harlan’s dissent in the Civil Rights Cases says, we the Court protected the rights of slave masters and upheld congressional laws protecting slave masters. And now, when the Constitution has been amended to protect the rights of former slaves, we’re striking down congressional laws designed to enforce that right. We are not treating the former slaves with the same kind of generosity that we once treated slave masters, and that’s hypocrisy.

Harlan is that one voice on the Court that still embodies that previous commitment that was made just a few years earlier to that goal, to the goal of racial equality. But the rest of the country, and the Court, had moved on.

The country doesn’t want to continue with this experiment in coerced reform of race relations in the South. And I think the Supreme Court is basically putting its stamp of approval on that. They’re saying the national government is not going to intervene anymore in Southern race relations. We are restoring home rule on the race issue to the South. We’re gonna return to the status quo, which is: upper-class whites in the South get to decide what race relations are gonna look like.


[2} the text of the 14th Amendment:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.[1]

[3] Wikipedia:

On April 6, 2020, amid the COVID-19 pandemic, the Wisconsin Supreme Court ruled, virtually due to the pandemic, that Governor Tony Evers could not delay the state’s 2020 primary elections, despite public fears of COVID-19.[9]

On May 13, 2020, in response to a lawsuit brought by the Republican-led state legislature, the Court ruled 4-3 to strike down an order issued by Secretary-designee of the Department of Health Services Andrea Palm, which extended the stay-at-home order previously issued by Governor Tony Evers.[10] The portion of the order that kept all K-12 schools closed for the remainder of the school year remained in effect.[11] The deciding vote to strike down the Secretary-designee’s order was by Daniel Kelly, who had recently lost his bid for re-election to Jill Karofsky.[12]

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