Guest Columnist Carl Doerner: Disorder in the court

  • The Supreme Court is shown Nov. 5 in Washington.  AP

Published: 6/29/2021 8:33:20 PM

Senate majority leader Mitch McConnell, R-Ky., refused to hold hearings upon President Obama’s nomination of Merrick Garland to fill a Supreme Court vacancy — the longest vacancy in our history — hoping a Republican might next be elected to make such nomination. McConnell was fulfilling his stated intent as Senate leader to block efforts of a Democratic African American president at every opportunity he found.

By contrast, when the dynamic Justice Ruth Bader Ginsburg died, her body was still warm when McConnell’s lurch to name a successor occurred, and a candidate was named before her body was laid to rest. In the current version of the Republican Party, her death was a prayed-for and heralded event.

Such expressions of partisan power was hardly what the Founders had in mind when they created a branch of government, co-equal with that of Congress and the presidency. It seems they envisioned a small group of astute “men” who would determine whether proposals of those other two branches violated their wording of the Constitution. Perhaps they understood they were opening the door to subjectivity. It was the best they could do.

This is the time of year when the justices’ season of hearings and contemplation gives way to making public their decisions. The likelihood is that a set of previous interpretations of the Constitution — termed “settled law” — will be threatened or reversed.

In the 1857 Dred Scott decision, the Supreme Court ruled the Constitution did not include citizenship for Black people, whether enslaved or free.

When in1892, Homer Plessy chose a “whites only” seat on a Louisiana train, his arrest eventually led the Supreme Court to rule that, while separate, services provided to him were equal. Historically services to Black people, whether schooling or bathrooms, always were inferior. The ruling legalized segregation for lifetimes.

In 2010, the Court held that political spending is, under the First Amendment, a form of speech, effectively ruling corporations be treated as if they are people. Corporations and the wealthy could more readily purchase elections.

In 2013, the Court allowed nine states to alter voting rights that had been established by the Voting Rights Act of 1965.

While a significant majority of Americans support a woman’s right to choose an abortion, and support government funded health care, today’s conservative justices threaten such services. And they will soon rule to diminished voting rights, particularly as they effect persons whose ethnicity is other than white.

McConnell has already vowed, should a vacancy occur under his watch, he will do whatever he can to block a Biden appointment. Newest jurist, Amy Coney Barrett, reasons ours is a center-right country and should be ruled by a center-right judiciary.

What a shameful history of interpretation of what the Founders intended when they wrote our Constitution!

Historically, the Supreme Court has been conservative in makeup and in its decisions. When in 1932 Franklin D. Roosevelt was elected to the task of bringing the country out of devastating economic depression, bold ways of providing jobs for the unemployed and rescuing farmers had to be created. Business leaders were unsupportive.

In the 12 preceding years, three Republican presidents had appointed eight conservative judges to the Supreme Court and, in support of business, these men found FDR’s programs unconstitutional. Even Social Security was a threatened program until the president suggested he would seek to increase the number of judges.

The Constitution was silent on that number. It has been nine since 1869 but had changed six times. Roosevelt was accused of attempting to “pack the Court.” The threat allowed survival of Social Security for America’s aging.

Succeeding Democratic and progressive Republican presidential appointments to the Supreme Court allowed decades of more liberal decisions. Miranda v. Arizona (1966) is perhaps the best example of an important liberal ruling — that under the Sixth Amendment an accused person has the right to counsel beginning with interrogation by police.

Another was Brown v. Board of Education (1954). The Supreme Court has long been a strong defender of the rights of states versus those of the federal government, but here the justices ruled against Topeka, Kansas, finding racial segregation of schools violated the 14th Amendment.

White supremacists take comfort in an ultra-conservative Court. It serves protectors of gun rights. Most Republicans view such orientation best serves their interests. But when Democrats contemplate an increase in the number of justices, are they guilty of Republican charges of “court packing,” or aren’t they seeking a less politicized reading of the Constitution?

Charlemont resident Carl Doerner is an author and historian currently at work on a re-examination of and challenge to the “American narrative.”


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