THE DEATH OF THE RULE OF LAW

SCOTUS Delenda Est!

The Second Punic War was ended without the destruction of Carthage by the victorious Romans. Eleven years of fighting Hannibal during his campaign on the Italian peninsula that saw ten Roman armies destroyed by the Carthaginian general before the eleventh was raised and he was defeated by Scipio Africanus the Elder had left the republic willing to just end things, without finishing them. Over the years after, Cato the Elder would end all his speeches in the Senate, regardless of topic with “Carthago delenda est!” - Carthage must be destroyed. In 149 BC, Rome went to war against Carthage a third time, her forces led by Scipio Africanus the Younger, son of the victor in the second war. The war ended three years later with the final destruction of Carthage, the enslavement of its population, and Roman hegemony over the western Mediterranean.

I’m not thinking in the same terms as Cato the Elder when I say “SCOTUS delenda est!” But I do mean that the events this week and the possible decisions to come in the next session of the court, clearly demonstrate that the Supreme Court in its current formation needs to be ended. Reformed, not destroyed, but the capacity for far right destruction of the republic through the decisions of the Six Injustices must be destroyed.

The Supreme Court has had its numbers played with before. The court numbered nine justices at the outbreak of the Civil War. Lincoln added a tenth justice in 1863 to help ensure his anti-slavery measures had support in the courts. Following his assassination, Congress cut the number back to seven following their fights with President Andrew Johnson after two of the justices had demonstrated support for Johnson’s position during his impeachment. Eventually in 1869, the court was established at nine again under President Ulysses S. Grant. It has remained there since, despite the United States’ population growing from 35 million to more than ten times that number.

The contemporary Supreme Court is both corrupted and corrupt. Their decision Tuesday night, followed by their 5-4 statement - really a collection of procedural excuses - of why they did so only confirms their committment to making changes in line with their ideology and Republican political goals, legal precedent and the rule of law be damned. This can further be seen in their “dark docket” of decisions made without a case, without a decision, without explanation, in private behind closed doors - every one of which since 2017 has favored Republican social and political goals, without even so much as an attempt to paper over their naked power grab.

At present, one of the Six Injustices, Neil Gorsuch, sits illegitimately, the product of Mitch McConnell’s relentless ambition to change the courts, rules and precedents be damned.. Five of the current conservative majority - sometimes joined by Chief Justice Roberts - have created a parody version of what the Right has denounced as “judicial activism” ever since the 1954 decision in Brown v Board of Education. Their “jurisprudence” takes a results-oriented approach that pays no heed to either precedent or more basic interpretive traditions in order to arrive at the outcome desired by the Republican party and/or conservative ideology generally.

It’s been said before and I will say it again here: with the corruption of the court, and the fact that its membership no longer is representative of the citizenry on whose behalf it is supposed to dispense justice, the number of justices must be expanded to at least thirteen to break this illegitimate, illegal power.

Yes, it’s impossible to do this in the current political situation, and I don’t see when it will be possible. But that is what the correct and proper solution is. Doing it, however, will only occur when there is a sufficient Democratic Senate majority to get rid of the filibuster and overcome the reticence of several sitting Democratic senators over making this change.

There has been talk in the White House and among Democrats in the House of taking the Roe and Casey decisions on reproductive rights and enacting that into law right now. Very likely, such a bill would pass in the House, but it has no hope in the Senate right now even if the filibuster was ended, since there are at least two Democratic senators who are “pro-life,” thus denying even a 51-vote majority with the vice president joining. And even if by some miracle this did happen, with the current corruption of the Supreme Court, it would be highly likely that such a law would be struck down in whole or in part. Thus, arguing about taking this action now is merely a waste of time, oxygen and thought process by those engaging in the debate.

With all that, we have to recognize that Justice Breyer - who recently admitted in an interview that he has difficulty making tough decisions about himself personally - is by his moral cowardice in the process of handing the corrupt majority a seventh seat by his insistence in remaining on the Court with no justification whatsoever. For this, he deserves unremitting scorn.

Yesterday, Mitch McConnell stated that, should the Republicans retake the majority in the Senate - an event that could happen sooner than 2022 if the California Democrats do not get their act together and defeat the Republican Referendum and Larry Elder is governor when Dianne Feinstein, who is not in good health and suffering old age additionally, involuntarily opens her seat for a man who is “Trump on steroids” to appoint her successor - McTurtle would again defy a president’s authority to appoint a supreme court justice, as he did when he stole the seat now illegally and illegitimately occupied by Neil Gorsuch. McConnell will not be satisfied until he has a 9-0 guaranteed majority.

That Justice Breyer cannot see this, if he cannot summon the individual moral stamina to make the right decision now to avoid being remembered as the worst Supreme Court justice after Ruth Bader Ginsburg, who couldn’t bring herself to step aside and allow a good replacement to be made before 2014 when the Democrats lost the Senate, despite her medical condition at the time, which had no positive prognosis; all she did was delay the inevitable until it resulted in the opposite of her hopes. People who come to think of themselves as “indispensable” generally make decisions that should have been dispensed with. I respect Justice Ginsburg enormously, but her failure to understand her own limitations, and to recognize that if she persisted as she did she risked the overturn of her life’s work - as is happening a decision at a time now - is a failure that almost cancels out everything else she achieved.

This action by first Ginsberg and now Breyer, based on selfishness and self-regard as both decisions were and are, is on a par with those ivory tower liberal legal academics who penned editorials in which they confidently told us that - while they disagreed mightily with now-Justices Gorsuch, Kavanaugh and Barrett - the three were nonetheless learned and brilliant jurists of integrity who deserved our support in their ascending the bench and taking a lifetime seat despite their proven records of partisanship trumping their judicial views. To the liberal acadamaniacs, add the two worthless Republican “moderate” senators Susan Collins and Lisa Murkowski, who just “knew” the Trump Triple Crown would always “respect precedent and settled law.” Those two are proof that any adjectives modifying the word Republican are useless; their votes along party lines when the party line is the far right, make them as far right in result as the rest of those insurrectionist traitors.

The elevation of the legal profession generally as a body whose moral probity is not to be questioned, and of constitutional jurisprudence specifically as a specialized professional discipline that requires our public agreement and support regardless of the outcomes delivered, is ridiculous. I went to law school long enough to recognize that the majority of the idiots and fools who are allowed admission are, well... idiots and fools and most are irredeemable for life (and being forced to be professionally polite to them forever, regardless, was a bridge too far for me). The argument that if a lawyer has mastered the technical processes of constitutional jurisprudence, and has a keen mind, they deserve support regardless of their beliefs, demonstrated actions, or likely decisions, is an argument that is both dangerous and absurd.

We may defer to all different kinds of specialized domains of knowledge in science and associated fields, but, and I say this with respect to The Little Bulldog who has kept me legally safe for the past 30 years and several other women lawyers who are exemplary representatives of what other lawyers wish they were, and to Davis Bragg who fought the good fight for 60 years in deepest darkest Texas living “out of range,” the idea that a legal education and a Juris Doctor degree, an academic credential that is both a limited and technical, the product of what Blackstone said about the law sharpening the mind by narrowing it - is on a par with serious definable knowledge is a bad joke at best. The claim that it is, is the product of professional arrogance that is - in the case of deference to Supreme Court appointees - an arrogance that now menaces our democratic and civic life at an existential level. I have known three judges as friends outside of their profession in my life, and all three were quick to say that deferring to them merely for the position they held was folly.

The legal and judicial process in all its manifestations is both complex and important, since an agreed framework of laws, precedents and processes by which are decided the critical questions society faces is the essence of the rule of law. It is the anchor of civic and democratic life. It is the critical difference between the rule of law and the corrupt right wing legal view that is why this unwarranted deference must be ended. We have every right to judge potential members of an inherently policy-making entity on the basis of their probable decision-making, in the same way we do regarding a vote in favor of any other politician. Beyond insuring a certain threshold level standard of solid temperament combined with intellectual honesty and curiosity, using that same judgement used for choosing other policy-makers is the only plausible standard.

I don’t mean we change to a system in which you pack the courts with lawyers who will act as an allied wing of the politicians of the party that appointed them. Doing that from our side would result in the same awful situation doing is from the Republican side has already achieved. The rule of law - of recognizing precedent and procedure to insure the proper functioning of the courts is crucial to maintaining an agreed-on system for deciding novel societal questions. Yes, a court should largely defer to a legislative decision. “Largely” and just where that line is drawn is the heart of the matter. That is where with a judge, as well as with a politician, choosing one over the other no matter how rigorous an analysis one applies to the decision, comes down in the end to an educated guess, at best; a hope that the individual is who and what they claim they are. But that is the framework we should aspire to, recognizing the lack of complete certainty in the end. The operation of a democratic constitutional republic in the end depends on the good will of the citizenry and those they elevate to make decisions about that democratic constitutional republic, to individually choose to follow the rules, the traditions, the precedents - republics from Rome on have fallen when enough people and parties choose not to do this and are not held to account for their choices. This is all the more important when we have a situation where those elevated are ideologues who see their duty - as the Six Injustices clearly do - is to super-legislate from the bench to prevent changes to a power system from which they personally benefit.

This Court is both deeply corrupted and corrupt. How we resolve that will determine in the end whether we maintain “a republic, if you can keep it,” in Franklin’s words.

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