A Supremely Compromised Court

Marc Ash / Reader Supported News
A Supremely Compromised Court July 2008, Justice Samuel Alito, center with hedge fund billionaire Paul Singer to his right enjoying an all expense paid fishing trip in Alaska. (photo: ProPublica)

The current Supreme Court of the United States is not a court like any other the country has seen in modern times. It is not just that their perspectives tend to lean more conservatively than recent court vintages, but that the construct of the court was so deliberately focused on ensuring specific political outcomes.

It isn’t just that the two most recent Republican presidents, both capturing control of the oval office via the Electoral College, without popular majorities chose conservative nominees. It was that non governmental, private, special interest groups actually controlled the selection process behind the scenes.

The Heritage Foundation’s John Malcolm leaves nothing to the imagination. In addressing the supreme court vacancy after the passing of Antonin Scalia he was right up front:

With lifetime appointments, all federal court judges, but most particularly Supreme Court justices, exert substantial influence on the development and application of the law over a long period, often for decades after the president who appointed them has left office.

The seat was open and then Senate Majority Leader Mitch McConnell made sure it stayed open for ten months, refusing to give then President Obama’s nominee, Merrick Garland even a hearing before the Senate. Donald Trump was sworn in as President on 20 January 2017 and was then allowed to nominate Scalia’s successor, Heritage approved Judge Neil Gorsuch.

The efforts of The Heritage Foundation dovetail with those of the Federalist Society. Donald Trump in the run-up to the 2016 presidential election was blunt saying, his nominees would all picked by the Federalist Society and they were.

The combined efforts of the Heritage Foundation, the Federalist Society, the Senate Majority Leader and the conservative justices themselves who timed their retirement’s to, in effect hand-off their seats to a new generation of like-minded or even more extreme judicial radicals have given birth to the most politically motivated and constitutionally threatening court in our lifetime and arguably ever.

As if the construct of the court were not enough to disqualify this group as judicial body add to that the blatantly corrupt conduct of Clarance Thomas and Samuel Alito and you have an institution that is nothing less than a blight on the reputation of the country.

The legitimacy of this court must be challenged at every turn. It’s not enough to do better in the next election cycle and hope for the best. A direct and sustained challenge the current court is needed. Anything less is tantamount to complicity with the corruption.

There are three justices on the court that were nominated and confirmed through the traditional, regular-order process, Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson. Yes all three were appointed by Democratic Presidents and lean liberal to progressive in their perspectives. But none were ushered into the court’s chambers by outside influence groups, none were political cronies of the of the presidents who appointed them and there is no evidence that any of them have accepted graft.

While Kagan, Sotomayor and Brown Jackson can do little more than publish dissents as the conservative majority issues one radical and destructive ruling after another they do play a separate crucial role on this court. The presence of Kagan, Sotomayor and Brown Jackson on the court gives the court badly needed credibility. The fact that those three justices with their sterling reputations continue to participate has the effect salvaging the court’s standing as a functioning judicial body. But what if they no longer participate?

Kagan, Sotomayor and Brown Jackson could withdraw their participation. They would not have to resign, they could simply decline to attend or actively participate in the court’s work. The five remaining justices would still constitute a quorum so they could continue to hear cases and issue rulings as they normally would but the credibility of the court would be gone and the impropriety of this badly compromised court would be front and center in the mind of the public.

How long can Kagan, Sotomayor and Brown Jackson continue to lend their good names to this clearly and fundamentally compromised process? As long as they participate the injustice remains veiled, however thinly.

Marc Ash is the founder and former Executive Director of Truthout, and is now founder and Editor of Reader Supported News.

Reader Supported News is the Publication of Origin for this work. Permission to republish is freely granted with credit and a link back to Reader Supported News.

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