THE COURT MATTERS

(For those wondering where I was this week, the western San Fernando Valley had a major power outage this past Monday. When it came back, my computer told me the Motherboard Fan wasn’t working and that failure to heed the warning would lead to hard drive failure. So the computer went back off, very quickly, and the next day it went to “my guys” and over Tuesday and Wednesday they saved my ass. So now we’re back.)

I was quite surprised, after reading of Justice Stephen Breyer’s responses over the past year following the death of Ruth Bader Ginsburg and the Conservative celebration of eviscerating her legacy with the promotion of Justice Looney-Tunes Barret, to discover yesterday that he did something liberal Supreme Court justices in the modern era don’t usually do: He timed his retirement so that an ideologically similar justice is likely to replace him.

Ruth Bader Ginsburg basically shafted her life’s work by choosing to stay on the court past 2015, despite her fragile health. She could have departed and protected her legacy any time up to 2015: Barack Obama was president and Democrats controlled the Senate. Instead, she followed the examples of William Brennan and Thurgood Marshall, who also did not do so, with both retiring during George H.W. Bush’s presidency rather than for the 1992 election, with the result that Marshall got as thorough a legacy ass-kicking as Ginsburg did, when Bush stuck his finger in the country’s eye and nominated perhaps the worst Supreme Court Justice of the previous 60 years, Clarence “Coke Can” Thomas. This followed the retirement of Earl Warren, who announced his retirement so late in LBJ’s term that Nixon filled the seat after Johnson fumbled the nomination process. After Ginsburg’s death, Donald Trump replaced her with Amy Coney Barrett, who will provide the deciding vote to overturn Roe v. Wade, affirmative action and more - everything Ginsburg spent her life fighting for.

These forfeited liberal court seats are why conservatives now dominate the court. Democrats and Republicans have held the White House for a similar number of years in recent decades, yet Republican appointees hold six of the Supreme Court’s nine seats.

In part, I think Breyer wasn’t the only left-of-center Supreme Court justice who convinced himself that the court was “apolitical” and that all justices are good people, and that the Senate would always Do The Right Thing. The failures of Warren, Brennan, Marshall, and Ginsburg to recognize that reality and their fantasies about the judiciary differed has come very close to making their terms on the bench historically and politically irrelevant, with the Shitheaded Six now determined to undo American Jurisprudence since 1937, brick by brick.

I don’t why it is, but you can look through history, and not just at this country, and make a persuasive case that - in the face of unrelenting conservative opposition leading even to the rise of fascism - the center-left seems always to have its head up its ass. “Nobody would do that!” seems to be their stock in trade. And of course, somebody always does. That.

Conservative judges view themselves as active members of a legal movement, an attitude that has only become more controlling since the rise of the Federalist Society in the 1980s. Not since John F. Kennedy’s presidency has a justice from the right half of the ideological spectrum been replaced by one from the left. But four crucial left seats were converted to far right seats.

Unfortunately, liberal justices, have too often placed more emphasis on their personal preferences than the larger consequences for the country.

Warren’s retirement, 54 years ago, still shapes the court. He had feared being replaced by Nixon and deliberately announced his retirement while Johnson was still president, in 1968. But Warren had waited too long. In the final months of Johnson’s presidency, Senate conservatives filibustered his nominee, Abe Fortas - a man who was completely unworthy of taking Warren’s place, and someone I didn’t mind seeing filibustered at the time. Whatever “debt” LBJ owed to his bagman, the Supreme Court wasn’t it. By 1968, I doubt Johnson knew up from down in the White House.

And as a result, a conservative has held the job of chief justice ever since.

Breyer has said he does not want to be seen as a liberal justice or a Democratic appointee, but rather as an impartial judge. The court’s authority, he said in a speech last year, depends on “a trust that the court is guided by legal principle, not politics.” Unfortunately, he doesn’t seem able to see that this is no longer true.

On most of the closely watched cases that shape daily life now, the justices do split along ideological lines, especially in recent years, as the country has become more partisan. On abortion, guns, labor unions, corporate regulation, gerrymandering, campaign finance and voting rights, the best way to predict the justices’ votes is knowing whether a Democrat or Republican appointed them.

For that reason, Breyer’s retirement is likely to have almost no effect on major upcoming cases. Breyer’s successor may be somewhat more liberal than he was, a reflection of the Democratic Party’s shift since Clinton’s presidency. But any such difference will matter little in most cases. At best, this judge may go down in history as a 21st century Louis Brandeis, whose dissents pre-figured the changes that would happen after 1937.

Any one of the three leading candidates would have no trouble filling Brandeis’ shoes.

But the fact there will be no fundamental change on the court means the only “fight” that happens will come from Republicans making rhetorical points for this fall’s elections.

The liberal justices aren’t the only ones to blame for this situatiion. In fact, the real problem is the political illiteracy of too many Democratic voters, particularly those who claim to be on the Left. I lost count of the number of idiots I talked to in 2016 about what was at stake in the election, that the future of the Supreme Court was the main reason to vote for Clinton. And these lefty fuckwits all said “The court doesn’t matter.” I’d like to talk to all those morons come the end of the next term in June 2023.

I guarantee they aren’t going to be happy. And that they will know that the court does indeed matter.

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