Political reality of the court

Dear Readers, Chief Justice John Roberts defends the federal jurists as fair-minded and “just calling balls and strikes.”  The baseball analogy is not necessarily positive, given the torturous reality of Angel Hernandez (his picture should be hung in Cooperstown with a plaque reading “History’s Worst Umpire”).  More importantly, what is true of trial and appellate jurists has never been true of the Supreme Court.

During the nation’s formation, the Federalist Party saw the political handwriting on the wall as Thomas Jefferson’s Democrat-Republican party was in ascendancy. To preserve political relevance, John Adams tried to stack the federal bureaucracy and judiciary with loyalists to entrench the Federalist political philosophy in the government beyond his Presidency.

This spawned the famous dispute of Marbury vs. Madison when Thomas Jefferson refused a political appointee of President Adams’ office.  In a famous decision that forever altered the power of the Supreme Court, Chief Justice John Marshall declared the Supreme Court the ultimate authority on Constitutional interpretation while side-stepping the fraught political hot legal topic by not ordering President Jefferson to award the prior administration’s choice of officiant.  

The Federalist sway in the judiciary died off over the next few decades.  Thanks to our unbalanced allotment of Senators (and the 3/5 Constitution’s counting of slaves as people), the South was over-represented in the judiciary for over a century, just as today, with Republican-appointed Supreme Court justices overrepresented – this is both a political accident of minority Republican Presidents and Senator Mitch McConnell’s power plays.

During this epoch, we saw a series of horrific judicial decisions as a reactionary Southern perspective of preserving the Institution of Slavery and then giving life to Jim Crow after Reconstruction from the Supreme Court.  

Dred Scott was a free man living in a free state, and Southern bounty hunters were given the right to hunt him down, capture him, and return him to bondage.  

Plessy v. Ferguson declared the Constitution permitted “separate but equal” civil institutions did not violate the Equal Protection clause of the 14th Amendment.  This caused decades of inequality; minorities (black Americans) were poorly educated, abused by law enforcement, faced insurmountable voting barriers, used separate restrooms and water fountains, and were shoved to the back of the bus.

The stranglehold of a reactionary court was broken by two (2) events.  First, the Depression proved the need for a more robust national economic response, breaking the back of the “old” establishment in the “switch in time that saved nine.”  This ushered in fifty (50) years of a more modern judicial philosophy, which was only possible because of twenty (20) years of “New Deal” Democratic Presidencies.  

When Richard Nixon was elected President in 1968, thanks to the bone-headed decision by Lyndon Johnson to try to elevate his crony, Abe Fortas, to Chief Justice, the tide started turning.  Slowly, Republicans stacked the Court with “conservative” justices supposedly hewing to a “pure” legal philosophy.  

Except, they don’t really; this Court hacks at precedent, reversing decades of established law.  The beautiful framework of our legal system is our historical precedent, allowing us to maintain consistent growth built on prior decisions.  Hacking at precedent is not “conservative,” this is judicial activism, inviting a counter-weight pendulum in successor courts.  Plessy v. Ferguson lives in spirit!

This Court sneers at precedent, leaving us in the wake of legal disruption.  We see this in removing constitutional protections for abortion; we are going to see it in this Court’s decision to revoke the Reagan-Era administrative deference afforded by the “Chevron Doctrine.”  The federal judiciary has now been tasked by this Court with reviewing every administrative rule when Congress authorized it.  Our regulatory decisions are ripe for judicial “Monday morning quarterbacking.”  Even worse, Congress is told to take an active role in issuing regulatory authority when it lacks a consensus on what to order for lunch.

It is also not afraid to make law when it wants.  Presidents and former Presidents have been granted “absolute immunity” for ill-defined “core Presidential activities.”  Congress has never legislated on this issue, and the Constitution does not tell us this exists. Yet, we are saddled with presidents and former presidents who maintain king-like status above the law.

We are “Back to the Past,” with a Supreme Court preserving reactionary views of society.  This is not a good example for the world; it is what dictators do, squashing reform and political evolution.  It is the political reality of the current Supreme Court.

Warner Robins attorney Jim Rockefeller is the former Chief Assistant District Attorney for Houston County and a former Assistant State Attorney in Miami.  Owner of Rockefeller Law Center, Jim has been in private practice since 2000.  E-mail your comments or confidential legal questions to ajr@rockefellerlawcenter.com.