Wake Up, Y’all: The Supreme Court Is Political AF

During the first day of Supreme Court nominee Ketanji Brown Jackson’s Senate confirmation hearings, Dianne Feinstein, who was present, read Judge Jackson’s resume back to her (the worst part of any job interview) and declared that she possessed "the qualifications and the temperament it takes to uphold the values of the judicial branch.” Feinstein went on to describe these “values” as somewhere the theme to the "West Wing" played.

FEINSTEIN: As I see it, those values are knowledge, even-handedness, impartiality, integrity, respect for the rule of law, and fundamental fairness to all. [...]

The Supreme Court is not a political institution. Rather, the court stands above politics and above partisanship, and we look to federal judges to be independent and unbiased.

This is all so much nonsense. Judge Jackson is only having hearings because a Democrat is president and Democrats tentatively control the Senate. Supreme Court nominations and confirmations are overtly political. Feinstein herself voted against Chief Justice John Roberts in 2005 and Justice Samuel Alito in 2006. It wasn’t because they weren’t knowledgeable or otherwise qualified.

Feinstein’s opposition to Roberts was because he failed to state his positions on abortion and euthanasia. She said at the time: "I have to have the belief that these basic rights are going to be protected. It's really what we stand for. It's really the basis of why I ran for the Senate. Therefore, we have to stand up.”

Alito’s expressed contempt for Roe v. Wade was also a deal breaker for Feinstein. Those are political, partisan considerations, even if I agree. I’d prefer if Roberts and Alito weren’t on the Supreme Court. What’s maddening is that Feinstein’s rhetoric doesn’t match her actions. This is a problem because if Democrats like her promote this fantasy of the Court as “above partisanship” voters are easily lulled into a false sense of security over many of the basic rights we enjoy, from abortion and birth control access to marriage equality. Even voting rights are obviously not set in stone.

PREVIOUSLY: Chief Justice John Roberts Made Jim Crow Great Again

Republicans attack the concept of “activist judges” who make law rather than simply interpret it, but that’s classic conservative projection. They’ve had a longtime project to reshape the country as they see fit through the judiciary. Now, with a 6-3 Supreme Court and the federal bench packed with young Federalist Society hacks, the Right has achieved what Tony Kushner satirized in Angels in America:

They got back the Senate but we have the courts. By the nineties the Supreme Court will be block-solid Republican appointees, and the federal bench—Republican judges like land mines, everywhere, everywhere they turn. Affirmative action? Take it to court. Boom! Land mine. And we'll get our way on just about everything: abortion, defense, Central America, family values, a live investment climate.

Harvard Law School professor Laurence Tribe, who was President Barack Obama’s judicial adviser, claimed that Obama believed the courts were “less important to liberals than they were to conservatives ... He really had the view that the things we needed to do to make life better for the American people were not going to be done by judges anyway.”

PREVIOUSLY: Supreme Court Takes Third Whack At Obamacare, Because F*ck It, Why Not

If true, it’s a disturbing and ahistorical sentiment. Brown v. Board of Education, Cooper v. Aaron, Miranda v. Arizona, Roe v. Wade, Griswold v. Connecticut, Obergefell v. Hodges are just a few of the major Supreme Court decisions that demonstrably improved the American people’s lives. Obama’s signature legislative achievement, the Affordable Care Act, endures only so long as the Supreme Court allows. During her drive-through confirmation hearing, Amy Coney Barrett refused to answer directly whether she’d deprive millions of their health care, and the average voter had no immediate power to stop her. That ain’t democracy, Sally.

Meanwhile, Supreme Court justices attend openly political events with no consequence. Justice Clarence Thomas feels no pressure to recuse himself from any cases where there’s a personal conflict of interest. He knows he’s not answerable to anyone but his wife.

The Supreme Court is an inherently political body that considers itself “above politics.” That’s the whole problem, and it’s why the institution is facing a crisis of legitimacy. Not that it gives a fuck.

This is your OPEN THREAD.

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Stephen Robinson

Stephen Robinson is a writer and social kibbitzer based in Portland, Oregon. He writes make believe for Cafe Nordo, an immersive theatre space in Seattle. Once, he wrote a novel called “Mahogany Slade,” which you should read or at least buy. He's also on the board of the Portland Playhouse theatre. His son describes him as a “play typer guy."


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