Maggie Grove

We all learn about the three branches of government in elementary school. The Executive, the Legislative, and the Judiciary, we would dutifully recite. 

 

I don't know about you, but I was taught to view the Supreme Court as this all-knowing, transcendent council. Dutiful public servants concerned solely with carrying out justice. A group of wise wizards; I'd picture them in hooded cloaks, their legal tomes like spellbooks.

 

Maybe this was true once. But it's no longer the case today. The institution today has become a sham, a spectacle. An empty vessel to carry out the political dirty work of a coterie of perverse, narcissistic elites who hate the thought of working people having autonomy over their lives.

 

Let's unpack it: what SCOTUS is supposed to do, and what it's actually been doing lately. 

 

This investigation is critical. If we can't trust an entire branch of our government, we're in trouble. And right now, we don’t; only 25% of Americans have confidence in SCOTUS today, the lowest it's polled in history. It's time we really take a look at the Supreme Court – understand what they've been up to, how the institution got corrupted, and how we make it work for We the People again. 

 

We the People vs. SCOTUS 

 

A quick vibe check makes one thing clear: The Supreme Court is no longer capable of doing its one job. It is no longer carrying out justice impartially in service of We the People. 

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For starters, the Court’s rulings on the landmark cases of the 21st century do not in any way reflect the will of the nation. In fact, they undermine it.

 

Like Citizens United: an infamous 2010 case that greenlit unlimited corporate spending in our elections (historically outlawed, and for good reason). 76% of Americans believe our government is "run by a few big interests, and 88% want to reduce the influence large campaign donors wield over lawmakers. 77% support campaign spending limits, while 3-in-4 actively back a constitutional amendment outlawing Citizens United. The ruling made no legal or conceptual sense, and is one of the worst things to ever happen to our democracy (read my article here).

 

Or their decades-long “war on unions.” More than 2-in-3 Americans support labor unions. Research shows that greater union membership predicts greater economic equality, as they ensure fair wages for workers. Yet the Court has ruthlessly dismantled them.

 

And their latest landmark ruling: the reversal of Roe v. Wade. Every age demographic, including seniors, support legal abortion. 2-in-3 Americans actively opposed overturning Roe. 

 

Being out of step with the will of your people is bad. But worse is that these rulings don’t seem to hold any legal or Constitutional legitimacy. Which makes me seriously question the intentions of the Court. Here are their legal premises for the major decisions I mentioned above. Do any of these sound legit?

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First, Citizens United: their argument rests on two things – that 1) corporations are people, and 2) money is the same as speech. In America, we ensure free speech for all Americans. So they said if we limit the money we let corporations (people) pour into our elections, we’re limiting their free speech.

 

You have to spin a real tangled web to arrive at the conclusion that corporations are people. They are not humans, they are not American citizens with rights or a vote, they don’t file employee taxes and aren’t counted in the Census; they are legal entities that structure businesses filled with actual people. Hundreds of years of established legal thought rejects their thinking. Also money doesn’t equal speech. Just because two things play the same functional purpose – i.e., influencing political discourse – doesn’t mean they’re the same thing. A gym and a nutritional plan both function to make you healthier, but we certainly don’t equate them and regulate them the same way. This is nonsense.

 

Next, their union-busting. It boils down to this: the Court says that we can’t have labor organizations that represent workers’ interests, because they’re not in the Constitution. Yet they say it’s fine to have “lobbying” organizations that represent large corporations’ interests… which are also definitely not in the Constitution. Their two stances are irreconcilable. Nor are they in the spirit of the Constitution. Unions protect the interests and voices of working Americans while lobbyists actively sway our politicians against those interests, subverting the will of the people.

 

Finally, Roe. The Court is rooting their decision in things like ancient scriptures on the fetus and the writings of notorious 1800s misogynist William Hale, who wrote that English gentlewomen were “the ruin of families” and lamented when young women “learn to be bold” and “talk loud.” Another key part of the Court’s argument is that Roe and Casey “made abortion into an unnecessarily contentious [political] issue.” Justice Alito writes in his decision that “far from bringing about a national settlement of the abortion issue, Roe and Casey have inflamed debate and deepened division.” But by definition, the Court is supposed to disregard politics in their rulings (or so they claim), so again this is a completely illegitimate legal premise. Also, conservatives are the only ones who “inflamed” the issue, so Alito’s argument that our side made it needlessly political, which has been bad for our country, so now our side gets to reverse it is pretty nuts. And then finally, we have the Court's central argument that because abortion isn’t explicitly endorsed in our Constitution, we can’t just "make up" a law to allow it – more on the absurdity of this shortly. 

 

But the Supreme Court’s utter lack of legal merit isn’t limited to these blockbuster rulings. It reflects their larger legal philosophy: one that has no legitimacy, and has been applied with no consistency. One that is solely about advancing the interests of regressive, scared little men at the expense of justice. One that is rooted in a 40-year coordinated, shadowy effort to politicize the Courts at the expense of our people and greater society. Let’s get into it.

 

How Things Got So Bad

 

This SCOTUS meltdown goes all the way back to the 1980s, with the rise of a conservative student club called the Federalist Society. Harvard Law professor Noah Feldman describes them as “the most influential legal organization in the United States ever, dramatically redefining American jurisprudence for decades to come.” Per Politico, “one wonky student group founded in 1982 has reshaped the Supreme Court – not only shaping law students' thinking, but changing society itself by deliberately shifting the country's judiciary to the right." Today, all six conservative justices on the Court belong to the Federalist Society. Twenty-five out of the thirty appeals court justices nominated by Trump belong to the organization. The Harvard Gazette writes that “the ​​conservative club has come to dominate the Court.”

 

The Federalist Society “was founded by a bunch of law students, nerds really, who felt ostracized on their law school campuses because of their conservative views,” says Feldman. An ambitious bunch with chips on their shoulders, they slowly crafted a powerful network of wealthy, connected conservative justices who shared their goal of remaking the courts in conservatives’ image – and who would wield their outsized power to do it. They deployed two main strategies to carry out their goal: first, they built an intricate legal network that allowed them to stack the courts with deeply biased justices. Second, they evangelized the legal philosophy of “Originalism” to brand their decisions with a veneer of legitimacy. But none of this is legit.

 

Conservatives have been shameless in their strategy to pack the Court with overtly political judges. At a Federalist Society event, Mitch McConnell said that “the [best] thing we can do to have the longest impact on the country is confirm these conservative men and women, transforming the judiciary for as long into the future as we can.” He refers to this as “the Judges Project” – to “appoint conservatives to all levels of the federal judiciary.” Translation: we’re going to obsessively focus on overtaking the Court in order to carry out our political agenda, no matter what the future looks like. What did this look like in practice?

 

“From 1985 to 1988, Reagan Attorney General Edwin Meese (an early supporter of the society) helped groom and credential young conservative lawyers by giving key positions in the Justice Department to early leaders of the society.” Since 1985, “the Olin, Bradley and Scaife Foundations have provided over $5M in grants to support the Federalist Society; since 1993, the Society’s funding has soared 182%.” In the words of political scientist Amanda Hollis, “that money enabled them to expand” their operations and influence. They regularly hosted high-class political conferences designed to further connect lawyers and grow their power. Then we had George Bush who “started the trend of making Society members the majority of appointments to the two highest levels of the federal judicial hierarchy.” (Of note: during his presidency Bush unsuccessfully nominated Kavanaugh to the Court, but Brett didn’t pass because he was viewed as “too partisan”). These – and countless other – maneuvers reflected “Reagan’s policy to build up forces in battleground areas to help topple enemy regimes… I thought of us as kind of the same equivalent in law schools,” says Federalist Society founder Steven Calabresi. As Mark Lilla writes, "the Federalist Society is the fruit of the conservatives' strategy to build and sustain cadres, and send them out funded with full backpacks.” 

 

Perhaps the most egregious example of conservatives packing and sabotaging the balance of the Court came in 2016. Then-president Obama nominated Merrick Garland in March to fill the latest opening, eight months out from the 2016 election. McConnell blocked the nomination, saying that it was too close to the election and that the next justice should be chosen by the election winner – the person who has the people’s mandate. But if he truly believed this, he wouldn’t have forced through Trump’s nomination of Amy Coney Barrett in September 2020… a mere two months out from the election. Plus, no one had ever blocked a SCOTUS nomination on the basis of an election’s timeliness before; there was zero legitimacy to McConnell’s move. The hypocrisy and manipulation is staggering.

 

Second, the organization didn’t just empower itself by strategically funneling judges to pack the Court; it also promoted a new legal philosophy called ‘Originalism’ – a philosophy that holds no water, and serves only to flimsily justify their unjustifiable rulings.

 

What they say it is: Conservatives describe Originalism as the judicial philosophy of interpreting and applying the Constitution based on the intent of the Founders “at the time it was written.” They act as though they’re completely apolitical, just neutral interpreters of the Founders’ intent.

 

But their philosophy 1) makes no sense, and 2) even the Supreme Court historically says it’s wrong. 

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On a conceptual level, Originalism – at least the way the Court brands it today – is a fraud. In a profile with Clarence Thomas, the most ardent supporter of the philosophy, the Constitution Center writes that  “Thomas reads the Constitution as meaning today what he believes those who wrote it meant back then, no matter how conditions may have changed in America in the meantime.” Conservatives like Thomas say that modern Liberal justices “make things up” and make “policy-driven decisions masquerading as constitutional law.”

 

But those accusations are baseless, mere projection. By definition, when conservative judges are interpreting the Constitution through the lens of “what they believe those who wrote it meant,” they are doing exactly what they accuse the Left of: interpreting it subjectively and making up laws accordingly. Thomas extrapolates and speculates every bit as much as – in fact, more than – the Liberal justices he loves to demonize. Society has changed so much in the past 300 years that most of the issues we’re discussing today weren’t addressed when the Constitution was written; there are no definitive answers to our modern problems in there, despite the Federalist Society’s claims that there are and they have them.

 

And even the Supreme Court itself says that Justices should take a progressive interpretation of the law. From the Court’s own website:

 

“It is evident that constitutional interpretation and application were made necessary by the very nature of the Constitution. The Founding Fathers had wisely worded that document in rather general terms leaving it open to future elaboration to meet changing conditions.”

 

There are four words written above the entrance to the Supreme Court: “EQUAL JUSTICE UNDER LAW.” Not “everyone gets treated the same way they did in the 1700s.” Not "keep old laws, even when they’re incompatible with our modern sense of justice.” The Supreme Court’s purpose is to ensure equal justice through the laws, not to keep us stuck in the 1700s. It is delusional to believe we should limit our legal thinking to the confines of what men 250 years ago had on their plates.

 

And their whole Originalism bit has made no sense in practice either. Because they don’t apply it with any consistency.

 

Let's return to abortion for a second.

 

Justice Samuel Alito previously said that “the case law [on abortion] is very clear that protecting the life and the health of a mother is a compelling interest throughout pregnancy. I think that’s very clear in the case law.” Well then why has the Supreme Court greenlit states’ ability to ban abortion in the case of ectopic or septic pregnancies? These are pregnancies where there is zero viability for human life, and the only medical treatment is to terminate the non-viable pregnancy to save the mother’s (very endangered) life. If the conservative Court honored case law at all, they wouldn’t have ruled this way.

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But their greatest legal hypocrisy on abortion – and all social issues, really – is insisting that it shouldn’t be protected because it wasn’t expressly codified in the Constitution. Their Originalism logic says that if something isn’t in that founding document, the Court (Liberals) can’t just “make up laws” to enshrine it. They say that if our founders didn’t put it in there, it must be up to the States to rule. 

 

If only they applied this consistently. Right after overturning of Roe, Thomas called for the Court to “reconsider” past rulings on sexuality – specifically, legalizing gay marriage and birth control. Again, his logic is: gay marriage isn’t law according to the Constitution, birth control isn’t enshrined in the Constitution, so there’s no Constitutional basis for it. However, when it comes to past rulings on social issues that affect him, Thomas throws away Originalism. The Constitution says a Black person is ⅗ of a person, yet Thomas, a Black man, rejects that; he supports rulings that give them equal citizenship and an equal vote. Thomas also supports interracial marriage, which just like gay marriage, is not supported in the Constitution. He cannot say with a straight face that he applies his philosophy consistently.

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That’s just the tip of the iceberg; I could write a book on the inconsistency with which this Court applies Originalism. They made up that corporations are people. They made up that churches are tax-exempt organizations, completely disregarding the separation between church and state. They made up that we can instate discriminatory travel bans. They ignore the “well-regulated” part of the 2nd amendment by dismantling gun control regulations. They ignore the 15th amendment, which states that  “the right of citizens to vote shall not be denied or abridged by the United States or by any State” by endorsing new voter restrictions that deny the vote, promote gerrymandering (which abridges the votes of minorities), and “dismantle key provisions of the landmark Voting Rights Act of 1965.” They’re ignoring our right to privacy in upcoming cases that will give Big Tech even more control over our data. All they do is cherry pick to justify their policy preferences. As legal scholar Mary Ziegler writes, SCOTUS applies a “selective history” – “a reading of history that goes against what most historians of the 19th century have been saying, [one] that’s very selective.” The Harvard Law Review says it best: 

 

“The framework and methodology Justice Thomas applies to his jurisprudence [reflects] an inconsistent approach to interpreting the Constitution, but is also predictable within issues.” His decisions “are a reflection of his policy preferences… his core beliefs are more important to Justice Thomas than a consistent jurisprudential framework.”

 

If anyone is making things up, it’s these clowns. Originalism is a fraud – just a buzzword conservatives attach to their ideas to make them sound legit. Conservatives are defenders of the Constitution! That must mean their decisions are unbiased and consistent! But the doctrine has no internal or external consistency. Despite the Federalist Society’s PR strategy to brand their SCOTUS justices as neutral “non-political” arbiters of justice, they are anything but. 

 

So what is their actual guiding philosophy? Bluntly: to keep America stuck in the past – to keep the people who have always been in power (them) in charge. To impose their narrow, controlling ideology on everyone. Think about their main political commitments and rulings: ban abortion, ban gay marriage, ban contraception. Kill voting rights legislation, kill unions, kill social programs. Allow corporations to pour unlimited money into our elections. What do all those policies amount to? Giving as little power and autonomy to working people and minorities as possible, by curtailing their rights and dismantling our pro-people, democratic institutions. Federalist Society conservatives fear that the more We the People are empowered, the less they will be. They hold the power today, make no mistake, and they don’t want society to change one bit – because that could change their place in it. 

 

And needless to say, appointing justices based almost entirely on their willingness to carry out the Federalist Society’s ruthless political agenda hasn’t produced the best justices…

 

Biased Justices with Bad Judgment

 

Do these sound like apolitical, unbiased judges we can trust?

 

Clarence Thomas infamously said "the Liberals made my life miserable for 43 years, and I'm going to make their lives miserable for 43 years" when appointed to the Court. Brett Kavanaugh has told the Left “what goes around comes around” after his confirmation. At a November 2020 Federalist Society event, Samuel Alito went on an unhinged – and very personal – rant against gay marriage, contraceptives, Plan B, and abortion. He was way too heated to possibly be seen as impartial. 

 

But our justices aren’t just out here actively threatening revenge on their political enemies. They’re also displaying a stunning lack of judgment and moral integrity.

 

Clarence Thomas' wife, who intimately shares his political views, attended the Jan. 6 protests and continues to be a passionate advocate that the 2020 election was stolen. All evidence makes it clear that this is a fabrication entirely detached from reality. So do I trust the judgment of a man whose wife discards basic facts in favor of delusional dogma? Especially when that man has implicitly endorsed his wife's views? Not to mention the credible evidence that he’s a sexual assailant (and no, the FBI’s 3-day, purely theatrical investigation does not absolve him).

 

Right before Brett Kavanaugh was nominated to the court, he held up to $200,000 in credit card debt. Once nominated, those debts vanished... and forensic analysts suggest there's no way he had the assets to pay it off. "At least twice in his life, some unknown entity endowed him with major infusions of cash, and Kavanaugh lied under oath about that cash," writes author Greg Olear. This is serious; whoever is paying off his debts undoubtedly has sway over him. Kavanaugh has also been described as “sanctimonious,” and during interviews for his previous failed Court nominations, “less than adequate.” “He did not handle the case well as an advocate and dissembled,” an evaluator noted. Not to mention, he lied under oath about other stuff too. And Brett, like Clarence, has also been credibly accused of sexual assault.

 

And then there's Amy Coney Barrett. Her career is quite literally defined by moving up the ranks as a "handmaid" of the secret Christian organization, the People of Praise. An organization where "ex-members tell of trauma and sexual abuse." All she's done is legitimize an unhinged movement that doesn't value her as anything but a manipulable mouthpiece for the powerful men she's desperate to get a gold star from. And she knows how shady this whole thing is, as she's repeatedly "declined" to confirm whether or not she's a member of the organization. 

 

These don't sound like people with strong morals and good personal judgment. In fact, they sound like the exact opposite type of people I'd ever want in charge of tough decisions. Nor are they generational legal minds, the only ones qualified for their position, as Republicans want us to believe. Brett Kavanaugh and Amy Coney Barrett have the least relevant legal experience of all sitting justices; the latter is “the least experienced Supreme Court nominee in 30 years.” Our justices have been chosen based on their desperation to support the conservative political agenda, and their willingness to never waver from that allegiance. Justice be damned.

 

So what do we do?

 

It can’t be overstated how damaging the SCOTUS meltdown has been and will continue to be – for both human rights and greater society. Per Ziegler, 

 

“It’s hard to imagine that any rights are very safe. Obviously, the Court would answer, ‘Roe is uniquely controversial; abortion is different.’ And it’s certainly possible to say that. But we know that historically, the Court’s willingness or lack thereof to revisit rights has more to do with public backlash or accountability than it does with anything else. And Roe is the most visible Supreme Court decision. So, if the court is willing to undo this right, it’s fair to ask why it wouldn’t be willing to undo other rights.”

 

Overturning Roe has emboldened the Court. They got away with reversing one of the most popular and important decisions in modern history, without real justification or the mandate of the people, and now they’re unchained.

 

In June alone, the Supreme Court

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• “Stripped the federal government of a crucial tool to control pollution,” by limiting the Environmental Protection Agency’s ability to regulate power plant emissions. Translation: Big Business can now emit all the greenhouse gasses they want without being checked. This at a time when the United Nations reports that a failure to curb these emissions will put us “beyond reach” of a “liveable future” by 2050, and that it’s “now or never” we reign them in. Our anti-science Court is threatening the wellbeing of our planet with their wildly unnecessary decision. They had no reason to pursue this case – there was no precedent or need for it. They went out of their way to do this, and cherry-picked as they saw fit to justify it. Experts also fear this ruling spells “bad news for tech regulators”; if they apply this logic to upcoming Big Tech cases, the Court will likely rule that predatory tech corporations can abuse our data without being checked.

• Reinstated a congressional voting map in Louisiana that a federal judge had previously ruled unconstitutional as it disproportionately “diluted the power of Black voters.” UCLA professor Richard Hasen describes the case as “another example of a court in a hurry to roll back minority voting rights.”

• Struck down New York’s conceal-and-carry law in “the Court’s first significant decision on gun rights in over a decade.” This critical regulation made it so gun owners must have a permit to carry their weapon in public; now anyone can stroll around with a gun willy nilly, answering to no one. Whatever happened to a “well-regulated” militia?

• Further undermined election finance regulation in May’s FEC vs. Ted Cruz case, which will allow an even greater influx of corporate cash into our elections. This reflects the latest in “a series of rulings in which the conservative-majority court has rolled back campaign finance restrictions.” They are actively encouraging corporations to further bribe our candidates.

 

That was just one month. What damage will they inflict over the next ten, twenty years? As Politico warns, “the conservative Supreme Court is just getting warmed up.”

 

We can stand idly by while six irrational, illegitimate tyrants continue to roll back our rights and spit on basic human dignity, or we can fight back. We can cede all our power, or we can take the (considerable) recourse available to us.

 

First: Congress can, and logically should, add seats to the Court. Balance it with sanity. When the Supreme Court was first created, it had six justices to represent the six circuit courts below it. In 1807 when a seventh circuit court was added, SCOTUS was expanded to seven justices. It was expanded again to nine justices with the addition of two more circuit courts in 1869. Fast forward 150 years, and today America has thirteen circuit courts… yet we still have nine justices. 🤔 Our proportions are out of whack. It also makes a lot of sense to balance the Court when you realize that five of the six conservative justices on the Court have been named by presidents who lost the popular vote – named by men who didn’t represent us. 

 

Congress can also enact term limits for our justices, so that we aren’t held hostage to the entrenched political views of unhinged extremists for the next forty years. Lifetime appointments “don’t just make the US an outlier globally, but set our federal government apart from our states… in all of which the high judges either have fixed terms or are required to step down at age seventy.” Why does the Supreme Court play by different rules as everyone else, including the states they preside over? 70% of Americans support term limits for the Court.

 

“It is getting harder and harder to find anyone who genuinely defends either as ‘necessary’ or even ‘proper’ the truly exceptional national American practice of ‘full-life’ tenure that allowed John Paul Stevens to serve for 34 years until he turned 90.”

 

Finally, Congress can pass legislation to prevent the Court’s illegitimate decisions and protect our rights they're hellbent on diluting. Congress had the opportunity to codify Roe v. Wade in law before it was overturned by breaking the filibuster but opted not to, because despite every Republican member voting in line against it, the Democrat-controlled Senate worried the maneuver would make them seem “too partisan.” We must demand the Democrats stop being cowards, and stand up to the Right’s impending mass-rollback of critical rights. Human rights are more important than the antiquated, unconstitutional, racist filibuster – a tool that “has been primarily used to block civil rights” throughout history. Democrats have a choice: honor the lives of everyday Americans, or continue to sit on their asses trying to play the politics game (very poorly, I might add). If establishment Dems won’t take the very logical steps required to protect our democracy and people, we must replace them with the progressive public servants who will.

 

America is going to hell in a handbasket, but we have the power to stop it, we really do. As Margaret Mead said, “never doubt that a small group of thoughtful committed individuals can change the world. In fact, it's the only thing that ever has." As Chomsky said, “pay attention carefully to the fear and desperation of the powerful. They understand very well the potential reach of the people, and only hope that those of us who seek a more free and just world will not gain that understanding and put it to use.” Things are terrible right now, and we can’t lie to ourselves about it. But we have to remember: we have the power to change it.

 

A new case sits before us: We the People vs. the Supreme Court. Game on.

 

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