A limited-run series where I review three books about the Supreme Court of the United States, exploring its historical and ideological conflicts, and the transformations it wrought upon law and society.
The Supreme Court Building opened in 1935, originally designed by Minnesota-based architect Cass Gilbert. From 1860 to 1935, the Supreme Court occupied what was known as the “Old Senate Chamber.” Prior to this, the Supreme Court moved in location several times. It took the advocacy of former President and Supreme Court Chief Justice William Howard Taft for Congress to approve a plan for a separate building for the Supreme Court. While Taft is little known to most Americans, except in satires and parodies that point out his rather spherical appearance, the Supreme Court Building stands as his legacy.
Besides the Supreme Court Building, Cass Gilbert also designed the Minnesota Capitol and the Woolworth Building, one of the oldest skyscrapers in the nation. Jeffrey Toobin, in his book, The Nine, details how the Supreme Court Building exemplified the grandeur and egalitarian nature of The Law. Its neoclassical design makes material the abstract concepts argued and interpreted by the justices, clerks, solicitors general, and lawyers who make their way before the highest court in the land. The steps emphasize that everyone who enter enter the same way. All are equal before the Law. Cass Gilbert’s steps are the 14th amendment made real. America has an unhealthy fondness for political dynasties, but one can be relieved that we don’t create special legislative measures insuring the privileges of the titled. There is no aristocracy in America, although there is plutocracy, oligarchy, and mobocracy aplenty, enough to raise the hackles of those Right and Left.
The Court interprets what the Law is. This is where things can get dicey, since Law, as evidenced by Supreme Court decisions, the decisions of lesser courts, legislation, and common cultural practice, has become an ever-changing thing. Is the Law:
A permanent set of standards and practices, unalterable by cultural change and the march of time?
A malleable set of dicta and guidelines to be changed when the needs arise or when popular opinion demands?
If only things were that easy. The drama and danger imbued with the task of interpreting the Law belies the fact that it is impossible to distill the Law into an either/or proposition. In addition, the nine justices must interpret the Law for all. This is why Scalia and Thomas sit on the sidelines, penning extremist opinions, nostalgic for a theocratic capitalist utopia, swinging words with the futility of King Lear fighting the sea.
The Supreme Court is like a legislative body in microcosm. Instead of 535 Congressional Representatives and 100 Senators, there are only nine justices. Of late, the Court has been wracked by a series of 5-4 decisions. The last unanimous decision of import was Nixon v US. Unlike Brown, Nixon involved preserving institutional autonomy against an executive power grab. It wasn’t necessarily that Nixon would have attained dictatorial powers like the tinpot pro-US dictators we sponsored throughout the Cold War and after, although Nixon was no slouch, and it could have been possible. Nixon v US would have made the Court irrelevant and it would have ceded its accumulated institutional prestige earned from Marbury v Madison, the decision that established the Court’s power of judicial review. (With almost pointillist precision, The Brethren sheds light on the debates and interpretive frameworks surrounding Nixon v US. It broadens the picture established by All the President’s Men. One can also add to Years of Upheaval by Henry Kissinger to see Watergate from the foreign policy perspective.)
We return again to Cass Gilbert’s steps, this time blooded by the War on Terror and the very real threat to the buildings of the District of Columbia. As the Supreme Court website says on its “Plan Your Visit” page: “Visitors may enter the building from the Plaza doors located on each side of the main steps.”
Built and opened during the crucible of the Great Depression, the Supreme Court Building remains, albeit with new security measures. Cass Gilbert’s steps now lack the metaphorical and physical embodiment of egalitarianism and majesty. But, in its own way, the Supreme Court Building has us – citizens, voters, tourists – contemplate the meaning of the Law. For decades, the route of entry to the Supreme Court Building remained unchanged. Now recent events has changed the equation. Things change, and by turns, so the Law must also change. For the better or for the worse? As the old chestnut goes, “The only constant is change.” While that is true on a superficial level and bespeaks a certain bumper sticker logic, what does that mean in real terms? Today the Big Issues involve gay marriage, health care reform, wifi, and international terrorism. The Supreme Court interprets the Law with the real consequences in mind, at least in theory, in practice it doesn’t usually end up so nice and neat.
While the Supreme Court may seem like a distant star populated by intellectual obscurantists in lifetime appointments, it is reassuring that the Court members are both in touch and wildly out of touch with popular opinion. Why is this a good thing? Despite the measures taken to secure appointments, we, as citizens, do have a degree of control, however slight and oblique, in judicial selection. The President nominates the candidate and the Senate Judiciary Committee can consent to that nomination, but we elect both of them. (Whether our candidate actually wins is another kettle of fish.) Supreme Court vacancies don’t come along very often, but when they do, it is of especial importance to citizens who value their hard-fought freedoms.
The hard-fought nature of these aforementioned freedoms relies on how these nine above-average jurists interpret the Law. The Court’s insulation from public opinion can be a good thing. Think of desegregation and popular opinion. Only long after Brown v Board did a majority of Americans find desegregation acceptable. On the other hand, the United States is creeping ever closer to universal acceptance of gay marriage. Unfortunately, the Court has several conservatives and ultraconservatives who put their archaic and ossified moral outlook ahead of marital desegregation. (Alas, they don’t see it in those terms.) But the Court can change. Who knows, perhaps a future President will nominate an openly gay Supreme Court nominee (or two) to the bench. The last election cycle brought forth Tammy Baldwin, an openly gay member of the Senate, a nice counterbalance to the closet-inhabiting senators seated on the opposite side of the aisle.
The Law will adapt to meet the needs of modern society, but if history is any indication, the Law will be dragged kicking and screaming as society attempts to lurch forward, held back by antiquated laws of no relevance. The occupants of the nine seats in Cass Gilbert’s neoclassical temple will either let freedom expand or confine it to the few. But before any of this change can happen, it has to make it to Cass Gilbert’s steps.
***NOTE: Mondays with the Supremes will continue in a more irregular fashion following these nine initial posts. I will post reviews on books pertaining to the Supreme Court.***
A limited-run series where I review three books about the Supreme Court of the United States, exploring its historical and ideological conflicts, and the transformations it wrought upon law and society.
The Supreme Court means lifetime appointment. The three cases below indicate the importance of a Supreme Court nomination. It remains a means for the President to extend his legacy, at least in theory. Unlike Congress, where the members campaign to get re-elected, the Supreme Court is removed from such tawdry scenes of glad-handing and throwing sops to the ideological base. In very real terms, the Supreme Court is freed from re-upping their terms like the commoners in Congress and do not have to follow the fickle spasms of public opinion. Supreme Court justices also have very little worry of getting thrown out of office.
Hugo Black SCOTUS: 1937 – 1971 5th Longest Term.
Hugo Black came to the bench early into FDR’s second term. The President wanted to install justices more sympathetic to the New Deal and help the United States out of its economic tailspin. Black would to make decisions, good and bad, until he died during Nixon’s first term. Black, along with fellow FDR nominee William O. Douglas, were the liberal gruesome twosome for decades. They represented a left-leaning extremist bloc on the Court similar to the current Court’s ultraconservative bloc of Thomas and Scalia.
Unlike Douglas, Black came to the Court with serious baggage. While the nomination process proved far less fractious and controversial than, say, Clarence Thomas or Robert Bork, Black had to answer for his involvement in the KKK. It was a truism in the South that the KKK smoothed obstacles to those seeking public office. Black told a skeptical public that the KKK was no more than a social club and he promptly resigned his membership once he became a Senator. He’s half-right. The KKK was a social club, while simultaneously acting as a Protestant extremist domestic terrorist group.
Once Black became a Supreme Court justice, he used his power to take a stance of civil rights absolutism. (The absolutism wasn’t complete, since he sided with FDR in the Korematsu case upholding the government’s case to imprison Japanese-Americans for national security reasons. But he also used the Korematsu case as precedent to overturn Brown v Board.) Throughout his career as a justice, the media and the general public saw his civil rights voting record through cynical eyes. Was this some mea culpa for KKK membership?
The Brethren chronicles Black’s civil rights absolutism, much to Chief Justice Burger’s chagrin and the annoyance of the pro-business conservative bloc. His decisions on Brown and other civil rights cases proisoned his legacy with certain generations in the South, but as a justice, he believed in personal honor, a literal interpretation of the Constitution, and freedom for all regardless of color. While his background with the KKK did have a role with his civil rights decisions, it is the opinion of this reviewer that one can read too much into this. But this opinion is tempered by the obvious fact that aspiring politicians will do anything and everything to achieve public office. Politicians are nothing if not expert opportunists with electorate consistently willing to satisfy this personal opportunism.
William O. Douglas SCOTUS: 1939 – 1975 Longest term.
To date, William O. Douglas has had the longest Supreme Court tenure, spanning his nomination by FDR and his retirement during the Ford Administration. A sprawling 36 years, 209 days. But like his liberal compatriot Black, Douglas had his share of personal misfortune and political opportunism. Unlike today’s Court, the Court of FDR relied on geographic representation to mirror the face of America. With its bevy of East Coast aristocrats, the foreign-born Austrian Jew Felix Frankfurter, FDR rounded out the Court with Black from the Deep South and Douglas from the Pacific Northwest.
He became the subject of two impeachment hearings (1953 and 1970), the first because of his stay of execution in the Rosenberg case, and the latter focusing on financial irregularities. The first case involved one of the most controversial treason trials in US history, the culture steeped in McCarthyism and anticommunist hysteria. The second time was based on pure political opportunism. Douglas did have his share of scandals, but by 1970 Nixon wanted to remake the Court in his image. The Brethren investigates the early Nixon years of the Court and the newly minted tenure of Chief Justice Burger. Scandal had driven the LBJ nominee Abe Fortas and Nixon figured he could boot out Douglas now that he had the chance.
Douglas drove a weed up Nixon’s ass because he was a strident social libertarian. Born in Minnesota, he grew up in Washington state and Oregon, imbuing him with a sense of environmental mission and a strong dislike for government meddling. His background makes him similar to fellow Westerner Sandra Day O’Connor. In the West, the bustle and reach of DC seems distant. Coupled with vast spaces and a different set of social problems (water rigts vs. civil rights), Douglas became one of the leading spokesmen on environmentalism.
His 36 year Supreme Court tenure was only one facet of his government service. He was a gun-toting head of he Security and Exchange Commission (back when the SEC actually meant something, not its present manifestation as the meter maid to deregulated kamikaze capitalism), a Senator, and a Vice Presidential nominee in 1944. The span from 1939 to 1944 involved an amateurish Douglas grandstanding to the crowds, using the bully pulpit of the Supreme Court as a means to curry favor for a successful VP campaign. It was not to be. Following the defeat, Douglas re-assessed the situation and instead decided to make his legacy the Supreme Court.
During his time on the Court, he wrote revolutionary decisions on various topics including civil rights, free speech, and the environment. His political philosophy of civil libertarianism stems in part from his disastrous personal life. He had multiple wives and, prior to his death, had wed a young bride decades his junior. Because of his advanced age, chronic health problems, and difficulty communicating following a stroke, Douglas retired from the Court. Unfortunately, Douglas still wanted to participate. His tenure ended with a whimper, not a bang, as the Brethren illustrates. The last days of Douglas on the Court involved the frail elderly and incontinent Justice wheeled around by a young nurse. It was a tragic end to a magnificent judicial career.
Rehnquist was a Nixon nominee who came to the Court seeking to reshape the rampant liberalism of the Warren Court. He begin his term as an associate justice and then was nominated by President Reagan for Chief Justice. Unlike other justices who gradually transition into their ideological niche, Rehnquist’s promotion from associate justice to Chief Justice required a different skill set.
When he began on the Court as an associate justice, he was a hardline conservative from the Justice Department. He quickly established his conservative bona fides with hardline opinions and an intellectual brilliance in the decisions he wrote. In ideological terms, he belonged to the same hardline conservatism of justices Clarence Thomas and Antonin Scalia. Ironically, Rehnquist’s personal appearance offset his hardline ideology. Nixon and older jurists thought his longer hair and sideburns made him look like a hippie. “Cut those sideburns, Mattingly!”
In 1986, Rehnquist became the fifth associate justice to be promoted to the position of Chief Justice of the Supreme Court. Like Hugo Black, Rehnquist’s confirmation hearing sparked controversy, because he had written a memo for Justice Robert Jackson arguing upholding Plessy v Ferguson‘s separate but equal doctrine. As stated in previous installments, the Chief Justice faces a different set of challenges and tasks than an associate justice. The Chief Justice is part administrator and part caretaker of the Court’s historical legacy. Now it was the Rehnquist Court. Throughout his tenure as Chief Justice, Rehnquist nursed the usual conservative crusades: repeal Roe and Lochner, the latter associated with the role of government regulating commerce, and making it easier for law enforcement to prosecute criminals. The balance was a tricky one, since the shadow of Chief Justice Taney’s decision in Dred Scott and Chief Justice Burger’s bungling ineptitude meant the Supreme Court needed to a firm hand. Now Rehnquist needed to work as a strategist, not as an ideological tactician.
Under Rehnquist’s leadership, the Court handed down many 5-4 split decisions. In order to avoid the weak decisions (as opposed to a very strong unanimous vote), Rehnquist needed finesse and to corral fellow justices with “join memos.” But one should not be deceived by the position of power and the power to write a Court opinion. Again, recalling the Chief Justice’s administrative duties, it became Rehnquist’s job to decide what cases would be heard, in what order, and which justice to assign writing the decision. While Rehnquist achieved a lot to repair the Court’s reputation following Chief Justice Burger, the Rehnquist Court lost a lot of institutional credibility when the Bush v Gore decision fell along party lines. Unlike the Court’s self-created mythos of being above the political fray, the decision made the Court appear like nothing more than hired guns of the Republican Party. Public cynicism would only deepen when the Rehnquist Court acted as a legitimizing force to the morally questionable foreign and domestic policies of the second Bush administration. Then again, cynicism isn’t necessarily a bad thing, especially when the planners think liberating a Middle Eastern nation will be “a cake walk” and institutionalized torture and death squads were caused “by a few bad apples.” The public needs to keep a vigilant eye over its judicial interpreters and a heavy dollop of cynicism might be what is required.
A limited-run series where I review three books about the Supreme Court of the United States, exploring its historical and ideological conflicts, and the transformations it wrought upon law and society.
the body of doctrine or thought that guides an individual, social movement, institution, or group.
such a body forming a political or social program, along with the devices for putting it into operation.
theorizing of a visionary or impractical nature.
the study of the nature and origin of ideas.Category: Philosphy
a philosophical system that derives ideas exclusively from sensation.Category: Philosphy
Origin of ideology: 1790–1800; cf. F idéologie
Random House Webster’s College Dictionary
The Federalist Society: the Resurgence of the Judicial Conservatism
In the long and storied history of the United States, conservatism suffered two major blows in modern times. The first was the Great Depression and President Herbert Hoover’s intransigence. The Republican president believing that the market would right itself without heavy-handed government meddling. Hoover’s miscalculation created the groundswell for the Democratic Party’s decades long domination of the executive and legislative branches. The second major blow was the constellation of scandals known as Watergate. Whereas Hoover’s failure to act discredited the economic foundation of conservatism (laissez faire capitalism), Watergate exposed a corruption and moral sickness at the epicenter of the executive branch. The constitutional crisis and Nixon’s authoritarian paranoia made the party of Law and Order seem comically hypocritical. (Understandably, there are multiple causes and multiple interpretations one can find in explaining both the Great Depression and Watergate. But the point of this essay is to underscore how the ordinary American citizen comprehended these crises.) Jeffrey Toobin’s The Nine highlights the conservative comeback and how a grassroots movement worked towards creating a comprehensive plan to take back the judiciary. In addition, the conservative comeback can be further understood by the in-depth investigation of the Burger Court and its ideological turf battles as chronicled in The Brethren.
The groundwork for the conservative comeback occurred with the Federalist Society, a conservative and libertarian think tank devoted to judicial issues. Toobin illustrates the agendas of the Right and Left in very practical terms. In 1982 the Federalist Society galvanized young conservatives into action, while the Left became preoccupied with Comparative Legal Studies. The difference is striking. Reeling from the double-punch of a discredited economic system and the morally questionable actions of President Nixon, conservatives sought one thing: power. As opposed to the armchair discussions and morally self-righteous complacency of Comparative Legal Studies, the Right is to be commended for its program and its call to action. Like it or not, results only occur when power is attained, be in the legislature, the Oval Office, or the judge’s bench. One can have a comprehensive ideological outlook and sensible solutions to social problems, but if one isn’t connected to those with power, then it is rather pointless. One can have demonstrations and petitions and eloquent public speeches, but if one can’t change the laws one is protesting, what are you doing out there?
The clarion call of overturning Roe and the Federalist Society’s agenda of limited government created a formidable opposition to the entrenched Democratic establishment. Following the disastrous presidency of Jimmy Carter, the Age of Reagan allowed for a full-on assault of political liberalism in both economic and social spheres. In terms of the public’s imagination, Reagan pushed back against the onslaught of FDR’s New Deal and LBJ’s Great Society. “Ask not what your country can do for you,” turned into “Government is the problem not the solution.”
The Brethren sums up the conservative position in this brief description of Justice Rehnquist:
And they [the liberals on the Court] when Rehnquist began promptly to live up to his advance billing as a solid conservative vote, siding invariably with the prosecution in criminal cases, with businesses in antitrust cases, with employers in labor cases and with the government in speech cases.
Through Nixon, Ford, and Reagan presidencies, the Right had created a political atmosphere conducive to nominating conservatives to the judiciary. Once ensconced on these benches, it provided future opportunities for nominations and promotions. The Federal judiciary became a minefield for any case involving liberal causes.
MARTIN: It’s a revolution in Washington, Joe. We have a new agenda and finally a real leader. They got back the Senate but we have the courts. By the nineties the Supreme Court will be block-solid Republican appointees, and the Federal bench – Republican judges like land mines, everywhere, everywhere they turn. Affirmative action? Take it to court. Boom! Land mine. And we’ll get our way on just about everything: abortion, defense, Central America, family values, a live investment culture. We have the White House locked till the year 2000. And beyond. A permanent fix on the Oval Office? It’s possible. By ’92 we’ll have the Senate back, and in ten years the South is going to give us the House. It’s really the end of Liberalism. The end of New Deal Socialism. The end of ipso facto secular humanism. The dawning of a genuine American political personality. Modeled on Ronald Wilson Reagan.
Angels in America: Millennium Approaches Tony Kushner
And the key to landing conservative justices in these positions was the Senate Judiciary Committee.
Dune Buggy Driver: Where’s the damn race? Duke: Beats me. We’re just good patriotic Americans like yourself. Dune Buggy Driver: What outfit you guys with? Duke: The sporting press. We’re friendlies. Hired geeks.
Fear and Loathing in Las Vegas (1998, Terry Gilliam)
The Senate Judiciary Committee: Fulcrum of Democracy
There are few places in our government where all three branches converge. One of them is the Senate Judiciary Committee. It’s importance cannot be underestimated. The committee plays the role of advise and consent on the President’s nominees for judicial posts, most importantly those of the Supreme Court. It is the greatest manifestation of checks and balances between branches. The importance can be seen in what is at stake for all involved. For the President, successfully nominating a candidate for Supreme Court will allow the President to have influence when his or her term or terms is up. (One can see this is the liberal legacy of FDR’s appointees.) For the Senate, it is a chance to wield its power. They are a guaranteed stopgap against executive overreach. The Senate fought back when FDR pursued his ill-fated Court Packing scheme. Added to this political calculus is the nature of the Supreme Court position itself. First, these are lifetime appointments. (Unlike, say, the Federal Reserve Chairman who needs to be appointed and re-elected to the position.) The lifetime appointment is coupled with the microscopic nature of the Supreme Court. Unlike the 535 Representatives in Congress and the 100 in the Senate, there are only nine Supreme Court justices. Congressional appearance fluctuates with the attitude of the electorate. The Supreme Court is (allegedly) immune from the winds of public opinion and popular electioneering. The Nine chronicles the longest period without a change in the Supreme Court’s make-up (1994 – 2005).
In recent years, the Senate Judiciary Committee’s hearings for Supreme Court nominees have been televised, turning the TV-watching populace into amateur Court watchers. Newspapers, magazines, and more recently the Internet become abuzz with speculation, hysteria, and analysis. Nominees are confirmed, others denied. Over the past decades, the hearings have taken on a different pallor. Instead of denying nominees for being too conservative, nominees have been denied for not being conservative enough. Hence, the Senate Judiciary Committee becomes a kind of ideological litmus test. The slow transition from a liberal-leaning Supreme Court to a more conservative-leaning Supreme Court has taken decades. This has also changed the mindset of the electorate, the Congress, and politicians. The events of 9/11 cemented a rightward tilt in the populace, at least until the economic meltdown of 2009, again putting the free market fundamentalists on notice.
Toobin, to his credit, illustrates the importance of the Senate Judiciary Committee and the rightward tilt of the judiciary throughout the Seventies and Eighties. But he seems to put to much emphasis on ideology alone. Because the Supreme Court is such a small government body, demographics also plays a key role. The Supreme Court will always be a body given to firsts. Amidst the recently confirmed nominees, the Supreme Court has seen its first female Hispanic justice. And now the Supreme Court has a majority of Catholic justices. Now there are six, instead of three. This has given the secular-minded pause. Alas, anti-Catholic hysteria has followed these nominations, especially in more extremist circles.
The Court’s nominal Catholicism should not be caricatured. While it is too early to tell what the judicial philosophy of the newer Catholic appointees will be like, one shouldn’t characterize the Catholic justices as a religious monolith. There are left-leaning Catholics (Sotomayor) and right-leaning (Scalia, Thomas, Alito, Roberts, Kennedy). So let’s play the demographics game: Scalia, Thomas, and Alito form a solid conservative bloc. Sotomayor, Kagan, and Ginsburg are women. Kagan, Ginsburg, and Breyer are Jewish. And Kennedy, Breyer, and Souter are reliable swing votes. The best way to comprehend the votes of the Court is to consider not just ideology, but the race, sex, and religion of the nine justices.
Affirmative action was designed to keep women and minorities in competition with each other to distract us while white dudes inject AIDS into our chicken nuggets.
Tracy Jordan, 30 Rock (Pilot episode)
The Trouble with Clarence Thomas: the Contradictions of Modern Conservatism
Like it or not, Justice Clarence Thomas may be the most fascinating personality on the Court. Catholic, African-American, Southern, ultraconservative, and a bit of a porn aficionado. His complex profile is on par with the late Reverend Peter J. Gomes, a gay black Republican Baptist who was Harvard’s Dean of Divinity. Gomes and Thomas represent challenging personalities, one not easy to wrap the mind around. Thomas is erudite, passionate, an ideological firebrand, an extremist, and, most recently, totally silent on the bench.
Nominated by President George H. W. Bush and confirmed by the Senate to replace the vacant seat of Justice Thurgood Marshall, Thomas appeared as the polar opposite of Marshall. Ironically, it is these ultraconservative values that make him such a contradictory figure. Thomas adamantly opposes affirmative action, yet his entire career has been based on its tenets. A devout Roman Catholic and crusader for family values, his nomination was one of the most controversial in decades. Amidst allegations of sexual harassment and of renting porn videos, his nomination was confirmed. Added to this rather curious interpretation and practice of Catholicism, he is a die-hard advocate of free market capitalism. In addition, in speaking engagements, Thomas has repeatedly mentioned his disgust at “the elites,” the wonderful catch-all term beloved to Right and Left. It is ironic, since Thomas, a Supreme Court Justice, is a member of one of the most elite institutions in the United States government. It seems his high position and ideological extremism has made him immune to such obvious ironies. Toobin pointed out how Thomas would have his clerks watch The Fountainhead, the film based on the “philosophy” of atheist Ayn Rand.
While Thomas and Scalia are darlings to the Right, their ideological extremism makes them only so useful in the decision-making process of the Court. In the operations of the Court, strong decisions happen when there is a consensus (Brown v Board, Nixon v U.S.). Divided opinions are more contentious (Roe v Wade, Bush v Gore). In the end, an agenda must be taken: remain faithful to one’s ideological base or get things done. Chief Justice Roberts has now received the ire of the Tea Party because of his consensus-building activities on the bench. But in the end, the Supreme Court, like all political entities, derives its prestige not from passing arbitrary ideological purity tests, but from getting results. The words of the fictionalized Roy Cohn seem apt, “You want to be Nice, or you want to be Effective? Make the law, or subject to it. Choose.”
Ideology provides a comprehensive philosophical framework for political action and social change, but without those in power getting their hands dirty it remains useless, a bauble, a hobby, a passing fancy.
A limited-run series where I review three books about the Supreme Court of the United States, exploring its historical and ideological conflicts, and the transformations it wrought upon law and society.
So … who wants to talk about abortion? Abortion, like health care and gay marriage is a political third rail topic. Nevertheless, it is an important topic to discuss, preferably with cool heads and open minds. The latest verbal atrocities from the Right (all this talk about “legitimate rape” and incest) and the inevitable hysterical reaction from the Left, make this a challenging topic to elucidate and explain. The George Carlin and Bill Hicks video clips make things a little easier, since both stand-up comics are expert rhetoricians who cut through the bullshit to confront the contradictions, hypocrisy, and sanctimonious doublespeak that seems to attach itself to any conversation about abortion and the right to choose.
In this installment of Mondays with the Supremes, I will examine three cases covered The Brethren and The Nine. The next installment will investigate the ideological sea change that occurred on the Supreme Court. The sea change arose from a movement conservatism galvanized on college campuses, law schools, and talk radio programs. One central issue that caused this passionate galvanization was Roe v. Wade and the desire to overturn it. Since this ideological agenda is so radical and the consequences so wide-ranging (Cf. Brown and the Civil Rights struggle against Southern intransigence), the Right has hidden their agenda from view, preferring to use the Supreme Court case Dred Scott as cover in their rhetoric. Equating Roe with Dred Scott has a kind of Satanic genius to it, since the Dred case remains one of most notorious and repellent opinions handed down from the Taney Court. (And the pun of Dred and dread is a nice touch.)
We’ll look at Roe v. Wade and its judicial shortcomings, including how legislators have sought to restrict the right to choose. If it can’t be overturned, it can be restricted. (See the 13th, 14th, and 15th Amendments and Jim Crow and the theory of “Separate, but equal.”)
In the words of Bill Hicks, “Because he’s a Hitler and here’s a fetus, go get him!” And in the words of a Mr. Show sketch, “Because life is sacred and God and the Bible.”
By the way, I’m pro-choice.
My own ideological bias will inform the piece, but the challenge will be to not this bias overshadowing the work. A tricky task in the practice of history and made trickier with a topic this inherent volatile. (Hence, the use of jokes and humor in the spirit of Jonathan Swift’s “A Modest Proposal”.)
Roe v. Wade, 410 U.S. 113(1973)
Holding:
Texas law making it a crime to assist a woman to get an abortion violated her due process rights. U.S. District Court for the Northern District of Texas affirmed in part, reversed in part.
Majority: Blackmun, joined by Burger, Douglas, Brennan, Stewart, Marshall, Powell Concurrence: Burger Concurrence: Douglas Concurrence: Stewart Dissent: White, joined by Rehnquist Dissent: Rehnquist
The Brethren is chock-full of set-piece Court cases, this time Woodward and Armstrong’s book covers the origins, interpretations, and outcomes of Roe v. Wade. Roe remains one of the most divisive and controversial Court cases. It is comparable to Brown v. Board of Education in its social impact and what critics claim as “legislating from the bench.”
Throughout the case coverage, we find Justice Harry Blackmun struggling to resolve this difficult task assigned to him by Chief Justice Burger. Justice Blackmun’s previous work had been as a General Counsel for the Mayo Clinic and, like Burger, was a Minnesota native. As Burger and Blackmun develop their respective law practices, we see how they eventually diverge from each other. Burger continues to practice law as a by-the-books law-and-order conservative Republican. In investigating the Roe case, Blackmun eventually pairs up with Justice William Brennan, the Court’s lone Catholic.
Blackmun plunges into the legal challenge by heading back to Rochester, Minnesota and reading up on medical literature at the Mayo Clinic’s library. The product of these researches is the creation of an “abortion test,” resting on the concept of fetal viability. Abortions become less and less permissible in each successive trimester. Following the publication of the opinion, Blackmun and Brennan met with a vituperative reaction. Catholics likened Brennan to Hitler and Blackmun received mailbags full of hate mail.
Let’s dig deeper than the opinion and the superficial reactions. While the case centered on “a woman’s right to choose,” the female patient was not the issue. The issue stemmed from a more libertarian idea, “When does the government have the right to interfere with a doctor’s medical practice?” The answer: It doesn’t in the case of a doctor offering medical term regarding a woman’s decision to terminate a pregnancy.
What does the government know about medical care? Is this the government’s job to decide? The Supreme Court opinion tried to square that circle with its “test.” In judicial terms, Roe’s importance is undisputed. In medical terms, it is sorely out of date. Prenatal care has improved and the concept of “fetal viability” has become less the subject of arbitrary boundaries set by a former hospital lawyer.
The just plain idiotic rhetoric and legislation spewing from Republicans these days does not help matters. The latest law purporting that “life begins two weeks before conception,” hence abortions should be illegal. This seems less like “life is sacred,” than having a political script written by meth-addled Dadaists. That makes menstruating women murderers and, well, just replay the George Carlin clip. Life conceived before conception sounds like a moral Moebius strip. How does one argue with a Black Hole of Dumb?
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992)
Holding:
A Pennsylvania law that required spousal notification prior to obtaining an abortion was invalid under the Fourteenth Amendment because it created an undue burden on married women seeking an abortion. Requirements for parental consent, informed consent, and 24-hour waiting period were constitutionally valid regulations. Third Circuit Court of Appeals affirmed in part and reversed in part.
Plurality: O’Connor, Kennedy, Souter (jointly) Concur/dissent: Stevens Concur/dissent: Blackmun Concur/dissent: Rehnquist, joined by White, Scalia, Thomas Concur/dissent: Scalia, joined by Rehnquist, White, Thomas
“Spousal notification”? How 19th century of Pennsylvania to write a law so retrograde and insulting to women. I’ll throw another two words out there, “bodily sovereignty.” While the case’s strange opinion – a three-person plurality, flip-flopping concurrences and dissents, alliances forming and collapsing faster than a Big Brother episode – let’s focus on what the Pennsylvania law wanted to accomplish. Namely, that a woman was mandated by law to notify her husband when she sought to terminate a pregnancy. Seriously, Pennsylvania, what the hell? Why not abolish the women’s right to vote while you’re at it, since they should confer with their husband before making an important decision like that.
Justice Sandra Day O’Connor, a diehard conservative, didn’t even cotton to that kind of horseshit. Unlike the Brethren, where the Supreme Court was all male, albeit racially and religiously diverse, the Supreme Court of Casey is another beast entirely. O’Connor’s presence would become a harbinger for more women to appear on the Supreme Court, including women of diverse ethnic backgrounds.
But let’s back up a bit. The pompous gasbags of the Pennsylvania legislature, when not cheating on their wives and taking bribes, er, campaign contributions from ethically questionable sources, had the gall to scribble this ridiculous law. Why is it ridiculous? You really want it spelled out for you?
While Roe involved the concept of government meddling in medical affairs, Casey reeks of paternalist condescension. It is also an egregious violation of the Fourteenth Amendment guaranteeing equal protection under the law. Simply put, it states that women are not equal to men when it comes to medical decision-making. (I bet dollars to donuts that there is no complementary law in Pennsylvania mandating a man has to gain spousal permission before he gets a vasectomy or a Viagra prescription.) In the eyes of Pennsylvania lawmakers, the concept of abortion makes women special, and not in a good way. This isn’t a doctor advising that a woman should consult her husband before she terminates her pregnancy; this is the government making it a law that she must do this. One wonders what the penalty entails, since a woman making a decision of her own independent volition would mean breaking the law. Thus, the concept of bodily sovereignty.
Casey’s paternalism is part of the common trend of legal prohibitions, including the Volstead Act’s banning of alcohol and Rockefeller anti-drug laws. Both have been resounding failures that have caused more harm than good. A patient should be able to make informed decisions about his or her body in regards to reproductive issues without the meddling of some overfed sanctimonious cretin sitting astride a chair in the state legislature. Having bodily sovereignty involves the ability to choose whether to terminate a pregnancy. (I concede that cases involving pregnancy with an underage individual is a separate issue, especially if rape or incest is involved.) But the lawmakers are saying you can’t choose.
This wouldn’t be as offensive to common sense if the same lawmakers of an ideologically right-wing persuasion were utterly and fanatically committed to banning contraceptive information and supporting “abstinence education,” a sex ed. program that has created thousands of American bastards.
One of the circuit court judges who upheld Casey was Samuel Alito, who now has his condescending paternalistic ass on a chair in the Supreme Court.
(So much for objectivity on my part. It is challenging to be dispassionate and levelheaded when a law this insulting and downright stupid is besmeared across the law books in a democracy.)
The previous outrage stems from the assumption based on a stereotypical vision of the American family, everyone belonging to a vast amoebic middle class and in general law-abiding suburban types. The spousal notification law would be a hassle, but there’s no inherent danger in it. Now imagine a family where domestic and emotional abuse is common currency. The wife is pregnant and she has to inform her husband. (She may even been raped by her husband.) While the Right concocts fairy tales based on Fifties television shows and passes that off as sociological fact, making Leave It To Beaver as a kind of Nuclear Family Template, the historical facts don’t bear any resemblance to the Cleaver-esque White People Utopia. The woman in this abusive relationship may not see every child as a blessing from God.
One of the challenges of the abortion debate is its simultaneous impact as an economic and ethical question. Only the naïve or very wealthy would fail to realize that a child is a serious economic burden on a family. An unplanned birth could pose a financial difficulty for a family already strained. But it isn’t just a simple line on a budget either. To terminate a pregnancy is a major decision. Heck, people get emotional when they have to put down the family dog. While the tone of this essay verges from outrage to snark, don’t let the tone imply I’m undercutting the actual nature of this decision. The problem is that the terms pro-life and pro-choice are too simple. The abortion debate has become the main battleground in the Culture Wars and warlike rhetoric shuts down nuance, independent thought, and intelligent criticism. (The same things get shut down in real wars.)
The rhetoric of the Culture Wars have become heated to such a degree it’s like that Mr. Show sketch about the East Coast-West Coast ventriloquist rivalry. Professor Murder and Kill or Be Killed will take it from here:
Stenberg v. Carhart, 530 U.S. 914 (2000)
Holding: Laws banning partial-birth abortion are unconstitutional if they do not make an exception for the woman’s health, or if they cannot be reasonably construed to apply only to the partial-birth abortion (intact D&X) procedure and not to other abortion methods.
Majority: Breyer, joined by Stevens, O’Connor, Souter, Ginsburg Concurrence: Stevens, joined by Ginsburg Concurrence: O’Connor Concurrence: Ginsburg, joined by Stevens Dissent: Rehnquist Dissent: Scalia Dissent: Kennedy, joined by Rehnquist Dissent: Thomas, joined by Rehnquist, Scalia
Every ideological camp has their fetishes and bugaboos. On the Christian Right, it is the partial-birth abortion. To those committed to the concept of pro-life, the procedure smacks of legalized murder. And nothing is more abhorrent to common decency than the murder of an infant. Like everything else in this essay, we need to do some linguistic unpacking. With the raft of “personhood bills” being passed by Tea Party-influenced conservatives, the legislatures are doing what the Supreme Court did in Roe v. Wade. They are playing doctor with disastrous results. Granted, the lawmakers’ intentions are good (cf. Prohibition, the War on Drugs, the War on Terror, etc.), but it brings up an unpleasant reality. Namely, that a “person” is defined in different terms depending on the context. These contexts include a legal definition, a philosophical definition, an economic definition, a moral definition, and a biological definition. (I’m sure there are others I’m missing.)
And the recent verbal word-vomit spewing from the Right these days, flies in the face of Stenberg. Unlike the other cases profiled today, Stenberg explicitly brings up a woman’s health. There are some cases where an abortion is necessary to save the life of the mother. (These would be cases that wouldn’t fit into the rubric of pro-life vs. pro-choice. Whose life? Whose choice?) In the end, the phrase “life is sacred” is nothing more than an applause line uttered at mid-level Bible colleges. More accurately, it is fetal supremacism. To the Right, the fetus has more value than the mother does.
One of the many ironies is that the same people so obsessed with saving the lives of fetuses are just as obsessed with defunding neo-natal care, Head Start, public education, public health initiatives, and countless other facets of social welfare. This moral hypocrisy occurs not because they want to see non-aborted fetuses grow up to be malnourished stupid potential criminals, it’s because of the specific nature of this obsession. They are not simply obsessed with the fetus, but with the Idea of the Fetus. The fetus isn’t a growing accumulation of cells and organs dependent on the mother’s nutritional intake, but an idol to be raised up and worshiped like a golden calf or Baal. It is a further development of the trend associated with Family Values and Children Are Our Future. (The Left commits the same act with its nutritional Puritanism, railing against anything genetically modified.)
The rape-talk represents the final stage of conservative fetal idolatry. It is one short leap from regarding the mother as a special member of the family to reducing women to nothing more than fetal carrying cases. “Brood mares for the State,” as Carlin aptly puts it.
This is a further reflection on the concept of law between the conservative Right and the social libertarian Left. The Right wants to see law as diktat. “Thou shalt not have abortions,” bringing the full authoritarian power of the State to enforce this doctrine. The Left sees the law as a means of keeping one’s options open. No one wants to have an abortion, but it is good that the option is available. Not every gay person wants to get married, but it would be wonderful if he or she were legally allowed to, at least in the sense of paying $75 for the marriage certificate. One of the great paradoxes of the United States is the ideological contradictions imbued in both Right and Left. The Right wants a completely deregulated economic sphere with a highly regulated moral sphere. The Left wants a deregulated moral sphere and a regulated economic sphere.
While this essay doesn’t purport to solve the Abortion Question, I hope that the discussion of the cases gives you a more informed opinion when discussing the matter.
After more than three years, the Driftless Area Review is preparing to make some changes. These changes will be both large and small. These changes include:
Editorial Clean-up
These first two points are interrelated. Over the next few months, I’m going to be giving many of my older posts an editorial once-over. Some posts don’t look right or come across as sloppy. The aim will be for a better visual appearance, creating a clean and consistent post format. Because growth and maturity is an inherent factor in criticism, I will keep all my old reviews, even the cringe-inducing ones. If I see a missed word or poor grammar, I will clean that up. The content of the review will be preserved.
Increased Navigability
With the editorial clean-up will also come steps for increased ease of navigation. The Internet is best when it allows the reader to navigate in a manner akin to free association. I want to make it possible for you to go in any many different directions as you can. This will include adding links to posts in essay series and the like. I will also add separate pages listing the various posts, like Mondays with the Supremes, Translation Tuesdays, and the Art of Reviewing.
Format Change
As you see the small changes occur, the end result will be to roll out a newly formatted blog. I’m aiming at a magazine-style format.
Open Call for Writers
Along with the format and navigational changes, I would like to open up the Driftless Area Review to contributors. There comes a point when one realizes that something is bigger than one is. For the past three years, the Driftless Area Review has been a one-man show. The tests and complications of life have made it a challenge to post regularly. With this in mind, I would like to bring on more voices and views. I’m looking for reviewers and/or essayists who want to bridge the gap between academia and the popular press. Unfortunately, there won’t be any monetary compensation. If you are interested, send me an email at thedriftlessareareview [at] hotmail.com. (I’m also looking for contributors for my politics and pop culture blog, Coffee is for Closers. Send inquiries to the same email address if you’re interested.)
A limited-run series where I review three books about the Supreme Court of the United States, exploring its historical and ideological conflicts, and the transformations it wrought upon law and society.
Derek Smalls: We’re very lucky in the band in that we have two visionaries, David and Nigel, they’re like poets, like Shelley and Byron. They’re two distinct types of visionaries, it’s like fire and ice, basically. I feel my role in the band is to be somewhere in the middle of that, kind of like lukewarm water. – This is Spinal Tap (Rob Reiner, 1984)
In this installment of Mondays with the Supremes, we’ll focus on the Derek Smallses of the Supreme Court. With nine justices, very small margins, usually one or two votes, can decide cases. These “swing votes” become very powerful when the Justices search for “joins” to create a majority. The media’s coverage of the Supreme Court attempts to divine the reasoning behind Court decisions by anticipating where each particular Justice will fall along the ideological spectrum.
Unlike a garden-variety politician, the Supreme Court Justice crafts their ideology not in the cash-drunken trenches of state primaries, but on a case-by-case basis. To be fair, Justices have worked diligently to construct a judicial philosophy prior to their confirmation hearings, but a lifetime appointment can change things. To paraphrase Robert Caro, power can deceive, but it can also reveal. The institutional power of the position and the pressures of the specific case (legal, historical, sociological, etc.) create a different environment for the individual Justice. After his appointment by President Nixon, Justice Harry Blackmun nearly cracked from the pressure involved in writing decisions on the cases assigned to him.
Finally, the issue of accountability arises. “Who watches the watchmen?” to quote Seneca. The Justices occupy the Court of Last Resort, accountable to no one above them. They stand at the pinnacle of the Judicial Branch. It is uncommon for the other branches make threats against the power of the Court. (President Nixon’s notorious impeachment proceedings against Justice William O. Douglas is a rare exception of a direct assault on the Court from the Executive, although one can’t forget Speaker Tom DeLay’s unseemly comments about shooting judges who failed to meet his rather ethically deranged worldview.)
All of these attributes make the voting behavior of the Court’s “swing votes” that much more important. In this installment, we’ll look at five Justices. First, we look at two counter-examples and then two examples, in order to understand the pivotal nature of the “swing vote” and its impact on Court operations.
COUNTER-EXAMPLE I: JUSTICE FELIX FRANKFURTER
(1882 – 1965; SCOTUS: 1939 – 1962)
Justice Felix Frankfurter presents a case not so much of a “swing vote” but an ideological shift. Appointed by FDR, Frankfurter espoused the doctrine of judicial restraint. Over his decades on the Court, he began as “America’s leading liberal and ended as its most famous judicial conservative,” to quote the dust jacket of Scorpions.
Today the concept of judicial restraint makes reliable appearances in conservative circles, followed by the inevitable scolding the Court for “legislating from the bench.” During the Great Depression – the first one – FDR passed law after law in the vain hopes of kick starting the economy from its inevitable decline into capitalist entropy. Unfortunately, the Hughes Court (1930 – 1941) kept striking down law after law because New Deal legislation went against the tenets of free market capitalism, or at least how the Court interpreted how it should operate. This led to FDR’s disastrous Court Packing campaign and his appointment of Frankfurter.
Frankfurter became a Justice in 1939, coming from an immigrant background and Ivy League education. Growing up as an Austrian Jew left an indelible impression on him and inscribed upon his personality an admiration for American democracy. The philosophy of judicial restraint is important, especially in light of the atrocities committed under Nazi Germany. The patriotism he felt influenced his decision on the infamous Flag Salute case of Minersville School District v. Gobitis of 1939. In the case, the Gobitis children in the Minersville school district refused to salute the flag on religious grounds (the Gobitis family were Jehovah’s Witnesses). Frankfurter wrote the majority decision in the 8 – 1 case in favor of the school district. This was less a case of conservative patriotism trumping individual rights than Frankfurter’s own boosterism for FDR. Frankfurter wanted FDR to intervene in Europe and he saw the Minersville case as a test case for American patriotism. Children not following the prescribed rituals of the loyalty oath during wartime could be seen as treasonous and a threat to national security. All this is rather ironic, since the Nazis also persecuted Jehovah’s Witnesses and used ritualized loyalty oaths. (While the Minersville School District isn’t a parallel to Germany’s NSDAP, one would be remiss to ignore the eerie similarities.)
In later decades, Frankfurter’s judicial restraint would take on a more conservative cast. He stayed true to his legal philosophy, remaining unchanged as the world changed. But this is less about ideology per se than the larger concept of consistency. Frankfurter felt he couldn’t alter his beliefs, because then he would betray his concept of judicial restraint.
COUNTER-EXAMPLE II: CHIEF JUSTICE JOHN ROBERTS
(Born: 1955; SCOTUS: 2005 – Present)
Because of his recent decision to join the majority in the Obamacare decision, those on the Left have misinterpreted Chief Justice John Roberts as a “liberal justice”. While it is still too early to tell where Chief Justice Roberts will fall on the ideological spectrum, he has, thus far, been seen as a typical, albeit photogenic, representative of conservative jurisprudence.
Justice Frankfurter was a case of a long-term ideological shift, Chief Justice Roberts exhibits a situation based on the administrative duties beholden to the Chief Justice of the Supreme Court of the United States. Unlike the other eight Associate Justices, Chief Justice Roberts is the caretaker of his judicial legacy. “The Roberts Court” will be stamped on every decision, including landmark cases, regardless of how he votes. Chief Justice Earl Warren had Brown v. Board of Education and Chief Justice Warren Burger had Roe v. Wade and United States v. Nixon. In addition to shouldering the responsibility of landmark decisions, there is the sheer statistical weight of being a Chief Justice. There have been countless Congressional Representatives, hundreds of US Senators, 44 Presidents, but only 17 Chief Justices. Even the President is aware of this fact, since appointing a Supreme Court Justice is one of the better perks of the job, but nominating a Chief Justice is the top prize. While only President Jimmy Carter had the ill fortune to not nominate any Supreme Court Justices, only a few Presidents have been able to nominate a Chief Justice.
When it comes to the concept of the Supreme Court’s “swing votes,” one can safely reject the Chief Justice because of the responsibilities of the position and the power dynamic. Any fleeting thoughts of Chief Justice Roberts becoming a “born again liberal” because of his Obamacare decision should take heed. Despite the obvious fact that Obamacare was based on Romneycare, which was birthed in a conservative think tank, Chief Justice Roberts main concerns are with forging a judicial legacy. It may not be an opinion penned by Roberts, but his name is on the Court.
Now repeat after me: “Oceania was at war with Eurasia: therefore Oceania had always been at war with Eurasia. The enemy of the moment always represented absolute evil, and it followed that any past or future agreement with him was impossible.” From 1984 by George Orwell.
EXAMPLE I: JUSTICE JOHN PAUL STEVENS
Bowties are cool.
(Born: 1920; SCOTUS: 1975 – 2010)
It may come as a surprise to some, but there was a time when the term “moderate” wasn’t uttered in derision. President Gerald Ford appointed Justice John Paul Stevens to the Supreme Court. Stevens came to the Court as a compromise appointment, but in the best possible terms. President Nixon’s appointments (Burger, Blackmun, Rehnquist, and Powell) subscribed to conservative judicial ideology. Nixon’s aim was to counterbalance the judicial liberalism coming from the Warren Court.
John Paul Stevens, a Chicago jurist, came to the Court under unique circumstances. President Ford arrived to the Presidency not by election, but by appointment. The same goes for his Vice President, Nelson Rockefeller. Ford, his manner straightforward and folksy to Nixon’s paranoid deceptiveness, faced a difficult situation. With the retirement of liberal firebrand William O. Douglas, the Court now had another open seat. But an unelected President to put forward the name of a conservative ideologue, especially in the aftermath of Watergate, would lead to disaster. The post-Watergate Congress, chomping at the bit to curtail executive power run amok, would never stand for that. Ford, realizing his tenuous situation, nominated a moderate, in this case Stevens.
Over the years, Stevens had become the reliable liberal voice, albeit not as absolutist as either Justices Black or Douglas. But the liberal-leaning Justice wasn’t as predictable as expected. In the 1989 flag-burning case, Stevens sided with the conservatives. This had less to do with being a Movement Conservative than with Stevens being a World War 2 veteran. He said the flag “is a symbol of freedom, of equal opportunity, of religious tolerance, and of goodwill for other peoples who share our aspirations.” In contrast to the flag-burning case, Stevens questioned the Bush Administration’s “intelligence operations at Guantánamo.”
During his early years, Stevens occupied the role of a prudent center. His left-leaning stances have been accentuated with his military service and his bravery to question to Executive excesses committed during the Bush Administration. In recent years, the Court has witnessed a changing of the guard. Elena Kagan and Sonia Sotomayor may eventually fill Stevens’s judicial niche as The Moderate. Unfortunately, due to the rightward slide of the judiciary during the Eighties and Nineties, the Moderate will probably inhabit a niche further to the Right than most mainstream American voters care to admit.
Turning and turning in the widening gyre
The falcon cannot hear the falconer;
Things fall apart; the centre cannot hold;
Mere anarchy is loosed upon the world.
- “The Second Coming,” William Butler Yeats (1919)
[Emphasis mine.]
EXAMPLE II: JUSTICE SANDRA DAY O’CONNOR
(Born: 1930; SCOTUS: 1981 – 2006)
Reading Toobin’s The Nine gave me a newfound respect for Justice Sandra Day O’Connor. Nominated by President Reagan, O’Connor was the first woman appointed to the Court, that for so long had been the dominion of white Protestant males. The Brethren paints a similar portrait, except with Thurgood Marshall as the token black and William J. Brennan as a token Catholic. But if reading about the Supreme Court reveals anything, it is that the institution is more than the sum of its demographics.
Sandra Day O’Connor grew up on a ranch in Arizona and became close friends with William Rehnquist. In many ways, she can be considered a photonegative of William O. Douglas, another product of the American West. Fiercely independent, a tireless workaholic, and a public face for the Court, O’Connor was one of the best modern Supreme Court Justices in living memory. This positive reputation, at least to this writer, has less to do with such trifles as ideological purity than her personal commitment to do what was best for the country. She attempted to craft decisions based on American popular opinion, avoiding the extremes of both liberalism and conservatism. Ideological purity is of limited usefulness in the world outside the Supreme Court Justice chambers. Besides, America has been more about the bottom line than about any notion of “purity.” (Read William Faulkner about the after-effects of the South’s Quixotic obsessions with racial purity and chivalry and you’ll understand right away what I’m talking about. The recent spate of Republican gay sex scandals is the same thing, but with homosexuality replacing race.)
O’Connor’s desire to read the sensible public perception of a case has given her a mixed reputation. She cast the deciding vote on Bush v. Gore, thinking the US needed a definite end to the prolonged Electoral College-induce catastra-farce. As a lifelong Republican, she cast her vote with George W. Bush, thus giving the country cold sweats following September 11th and comedy writers the greatest eight years of their lives.
Throughout her career, O’Connor has tried to remain in the middle of the road. In abortion cases, she had shown a kind of libertarian feminism. Since Roe v. Wade, a woman’s right to choose had become common cultural currency. In O’Connor’s specific case, she rankled against the Right’s fetish for imposing government restrictions on a woman’s choice in matters relating to her pregnancy. The 2000 case Sternberg v. Carhart had O’Connor depart from her usual conservative principles and had her move “farther left than she had ever gone in her judicial career.” This was due to her “reverence for expertise, her suspicion of paternalism, and the deft lobbying of Breyer.” (We will go into more detail with abortion cases in the next installment, plus George Carlin and Bill Hicks clips!) The key factor is “suspicion of paternalism.” With the Right’s slouching towards theocracy, O’Connor’s swing votes posed a necessary corrective.
In all these cases, the “swing votes” of the Supreme Court Justices have attempted to bring the Court back from the spasms of ideological extremism. Today’s challenge is for Justices to perform the same function, even as the Court slides further and further to the Right. The fearmongering and simplistic rhetoric, combined with the walleyed perceptions created by social networking, has created a public discourse at odds with mainstream opinion. Will the center hold? And with Right and Left pulling further and further apart, what is the center?
As with many other things in the United States, the center needs to be rehabilitated and rebuilt. The Supreme Court Justices possessing the “swing votes” can work towards pulling the nation back from the brink.
A limited-run series where I review three books about the Supreme Court of the United States, exploring its historical and ideological conflicts, and the transformations it wrought upon law and society.
A piece of [expletive deleted] and his [expletive deleted] excuse for his actions.
United States v. Nixon, 418 U.S. 683 (1974)
Holding: The Supreme Court does have the final voice in determining constitutional questions; no person, not even the president of the United States, is completely above the law; and the president cannot use executive privilege as an excuse to withhold evidence that is “demonstrably relevant in a criminal trial.”
Majority: Burger, joined by Douglas, Brennan, Stewart, White, Marshall, Blackmun, Powell
(Rehnquist took no part in the consideration or decision of the case.)
The Burger Court had many landmark cases, including United States v. Nixon in 1974. Since 1972, the United States had been embroiled in a series of interlocking scandals and investigations given the name “Watergate.” What began as “a third-rate burglary” ended in the resignation of the President. During this time, the country witnessed two separate proceedings. Judge John Joseph Sirica of the United States District Court for the District of Columbia presided over the trial of the burglars. On the Hill, the Senate Watergate Committee, with Senator Sam J. Ervin (D-North Carolina) as Committee Chairman, investigated the Watergate burglaries and allegations that the Nixon White House orchestrated wiretapping and other nefarious activities. Every day the Silent Majority watched their TVs and saw how the President elected on the “Law and Order” platform became a monstrous embodiment of criminality, illegality, and paranoia.
The two trials forced the Supreme Court out of its regular rhythms. Instead of taking its usual July recess, it decided it had to act. As the scandal transformed from the burglary to the cover-up, the Supreme Court needed to figure out how preserve its powers. The White House held the position that it could withhold evidence from Judge Sirica because of “executive privilege,” especially in terms of materials relating to “national security.”
The stakes were high, since the White House lost the previous battle with the Burger Court over the Pentagon Papers. The battle represented the first direct threat to the power of the Supreme Court since Marbury v. Madison. (The unanimous opinion is still controversial, widely derided by those enamored by Executive supremacy.)
Like Brown v. Board, the Court decided upon a united front with a unanimous decision. Only Justice Rehnquist, a Nixon appointee, recused himself from the case since he worked for the Nixon Justice Department. What the other justices realized, beyond the usual partisan squabbling, was that the entire judicial branch was under attack. Would the Supreme Court be subservient to the White House because of “executive privilege”?
The Brethren relates the story of Watergate from the perspective of the Supreme Court. The reader discovers that even this high profile, high-stakes case involved negotiations amongst the justices and the inevitable horse-trading. Nevertheless, the book reads like a mirror of All the President’s Men, another book co-authored by Bob Woodward. (One can also read Years of Upheaval, Kissinger’s second volume of his memoirs, for the foreign policy perspective and the view from inside the White House.)
In the end, the Court ruled unanimously against “executive privilege” in the White House’s claims to refuse to turn over the tapes to Judge Sirica. Despite the allegations that the tapes would reveal foreign policy information that would weaken national security, the President can not willfully obstruct a criminal trial by withholding evidence. In the end, the cover-up compounded Nixon’s guilt.
Two lessons can be learned from the Supreme Court’s actions during Watergate: first, that the Supreme Court is the last line of defense against a power-hungry White House; second, Nixon realized that even though he appointed two Justices, they were loyal to the United States and its laws, not him.
A limited-run series where I review three books about the Supreme Court of the United States, exploring its historical and ideological conflicts, and the transformations it wrought upon law and society.
This is the story of three Supreme Court cases. The three cases illustrate the real political power exercised by the Supreme Court and the concept of stare decisis, more commonly known as “binding precedent.” Furthermore, the reader should see this section as a kind of intellectual exercise. Legal legitimacy coupled with cultural acceptance creates a powerful cocktail that can make overturning legislation much more challenging.
The Court established itself as an independent branch of the United States government in Marbury v. Madison, 5 U.S. (1 Cranch) 137(1803). This allowed the Court to operate as “final arbiter” in constitutional disputes. It announced to the Executive Branch that it wouldn’t act as the President’s handmaid. The Supreme Court is not a rubber stamp to the President’s ever-growing imperial power. (Congress has that job, at least in terms of its War Powers. Since Vietnam, Congress, in acts worthy of the Heaven’s Gate cult, seems perfectly comfortable with acts of self-castration. Besides, Congress engages in more pressing acts: seducing lobbyists, having affairs with staffers, and scanning wealthy families for trophy wife material.)
Coupled with its task as final arbiter, the Supreme Court utilizes the concept of “binding precedent.” In an ideal circumstance, the Supreme Court does not legislate from the bench. The Court either upholds or overturns the case based on precedent. A Justice can’t just say, “This is wrong, don’t do it.” A specific piece of legislation has to be deemed unconstitutional. Previous Court cases, other laws, and the Constitution itself must support the constitutionality of the decisions.
While Congress writes laws to be signed into law by the President, the Supreme Court interprets the law. But interpretation is a hollow exercise if it is not enforced. These three cases show how the dance between constitutional interpretation and legal enforcement become a balancing act between branches. Occasionally, these balancing acts spill over into public conflicts and duels.
Korematsu v. United States, 323 U.S. 214 (1944)
Holding: The exclusion order leading to Japanese American Internment was constitutional.
Majority: Black, joined by Stone, Reed, Douglas, Rutledge, Frankfurter
Concurrence: Frankfurter Dissent: Roberts Dissent: Murphy Dissent: Jackson
Korematsu is a lingering black eye on the American legal system. It remains a damning indictment against the Executive excesses of FDR and the judicial spinelessness of his appointees. Alternately, Korematsu shows a patriotic Supreme Court upholding the will of the Executive in times of war against a ruthless enemy dedicated to brutality, terror, and warmongering. What do you think, Dear Reader?
The case, like the segregated armed forces and the alliance with Stalin, opens any number of vulnerabilities within the otherwise hagiographic treatment of the Greatest Generation. No amount of nostalgia or selective memory will disprove that our leaders and our citizens had feet of clay. The Second World War was not as black-and-white as the opposing forces in the Lord of the Rings. Reality, to quote Herman Melville, had more ragged edges.
The case itself upheld Executive Order 9066 that legalized the internment of Japanese-Americans. War hysteria following the Japanese attack on Pearl Harbor coalesced with decades of anti-Asian sentiment among Americans of European descent. While Japan had spies and other intelligence agents working towards infiltration of the US mainland, Executive Order 9066 involved tackling a surgical problem with a sledgehammer. Instead of targeting suspicious foreign agents working for enemy powers, it gave law enforcement the ability to arrest and imprison native-born US citizens. It invalidated constitutional protections offered to any citizen born in the United States to those who looked like the enemy. (Arizona’s recent anti-immigration law also reflects this racially motivated hysteria. Illegal immigration is a problem, especially in Border States, but turning every “Mexican-looking” person into a potential felon is a stupid solution.)
A closer analysis of the decision reveals the potential time bomb that would later explode in Brown v. Board. As Feldman writes in Scorpions,
With the war on, Black was disinclined to stand up for equality, even though his liberal, Catholic colleague Frank Murphy condemned the decision as pure racism.
Because the Korematsu case focused on a military order, Justice Jackson became torn and issued an enigmatic dissent, trying to balance “uphold[ing] a military order would distort constitutional law; striking it down would inappropriately second-guess military authority.” As opposed to Robert Jackson’s concept of judicial pragmatism, Justice Felix Frankfurter wrote a concurrence stating that the internment program “is not be stigmatized as lawless because like action in times of peace would be lawless.” Frankfurter believed in judicial restraint and opposed all measures to legislate from the bench. Frankfurter’s assessment opened up the possibility for repealing segregation with the reasoning that the internment was necessary because it was wartime. In peacetime, similar unfair treatment based on race was unconstitutional.
Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)
Holding: Segregation of students in public schools violates the Equal Protection Clause of the Fourteenth Amendment, because separate facilities are inherently unequal. District Court of Kansas reversed.
Majority: Warren, joined by unanimous
During the Fifties and Sixties, the Warren Court oversaw the greatest expansion of civil rights and individual liberties in recent memory. In Brown v Board of Education, Earl Warren wrote a unanimous opinion striking down segregation in schools. It was an act whose time had come. The Court followed in the footsteps of President Truman’s executive order desegregating the armed forces. Truman’s actions were relatively easier than what the Court faced. Unilateral action could be taken, since Truman acted as Commander-in-Chief of the armed forces. Desegregating schools was a trickier business.
The long winding road of Brown v. Board culminated in the Supreme Court’s unanimous decision. The unanimity of the Court gave the decision extra moral and legal heft necessary for such a radical social change. Scorpions relates how the Court reached a unanimous vote; routinely holding over the decision until the next year and then having it reargued. Only until Chief Justice Vinson, a proud Southerner and pro-segregationist, retired and with Justice Robert Jackson on his deathbed, were the circumstances right.
With stare decisis, the Court used Korematsu as a precedent to strike down Plessy v Ferguson. In oral arguments, evidence was presented that showed that “separate but equal” did not mean what it said. The races were separated but far from equal. Everything from racist stereotypes in pop culture to redlining to legal disenfranchisement were engineered to keep African-Americans from getting any ideas about racial equality. Plessy v Ferguson would not stand, since it was based on false pretenses. Korematsu came into effect because of the reasoning involved. The Japanese-American internment camps were created as a temporary measure.
Once the War ended, the camps would lack any basis for existence. Since the US Government knowingly created the camps as a racist containment strategy, the same could be said for legal segregation. Segregation contained “uppity blacks.” With the US triumph in the Second World War against racist tyranny, it seemed a tad hypocritical to defend racist social engineering. In addition, segregation was used as a canard to discredit American democracy. Justice Robert Jackson understood this, because he had jousted with Hermann Goering during the Nuremberg Trials. In the Fifties, the Soviets and American Communists consistently used segregation as an example of American capitalist evil. The United States also had the awkward experience of explaining to African diplomats and dignitaries why hotel clerks and restauranteurs were treating them like shit. Despite popular opinion to the contrary, especially but not exclusively, in the South, that the time had indeed come to rectify this perversion of democracy.
But it wasn’t all smooth sailing and waiting for segregationists to retire or die. The nine justices battled between striking down school segregation with a unanimous vote and the order to do it immediately. Like a refrain from a terrible pop song, the Court settled on a compromise. (Compromises being the go-to solution for America’s self-inflicted race-based problems.) In exchange for a unanimous vote and to appease stubborn Southerners on the Court, the Court decided to strike down Brown, but for the lower courts to establish their own timetables. “Gradualism” was the key word. Unfortunately, gradualism only sounded good on paper. This opened the door for states to drag their feet or come up with creative legal loopholes. This led to Southern governors challenging the Supreme Court’s authority, since the Court lacked any enforcement apparatus. Eventually we get the National Guard escorting little black girls to school and repugnant alternate uses for fire hoses.
The Brethren picks up where Scorpions leaves off. With desegregation legal and mandatory, it opened up a can of worms for courts to unravel. If schools were desegregated, does that mean neighborhoods also need to be desegregated? Do schools have to match the racial ratios of the neighborhoods they serve? What about bussing? The challenges associated with desegregation stretch into the Sixties, Seventies, and Eighties. Even in the Nine, the Rehnquist Court, made up of a conservative and moderate majority, sought to strike down Brown, but with little success.
Rumsfeld v. Padilla, 542 U.S. 426 (2004)
Holding: Habeas corpus petition had been improperly filed in the U.S. District Court for the Southern District of New York, and should have been filed in the U.S. District Court for the District of South Carolina; petition should have named Padilla’s immediate custodian, not the Secretary of Defense.
Majority: Rehnquist, joined by O’Connor, Scalia, Kennedy, Thomas Concurrence: Kennedy, joined by O’Connor Dissent: Stevens, joined by Souter, Ginsburg, Breyer
Padilla v. Rumsfeld appears like a culmination of Korematsu and Brown, but is in reality rather disappointing and dangerously inconclusive. We have the similar themes of rights violation occurring during wartime (Congress keeping its rubber-stamping ability to legislation expanding Executive power in fighting trim.) In this case, the concept of habeas corpus lay in the crosshairs.
Padilla, an American citizen, was held in the brig and charged as an “enemy combatant.” The case could have unraveled the Bush Administration’s legal basis for torture, extraordinary rendition, and other authoritarian atrocities committed in the name of liberty and freedom. (These colors don’t run, just the intelligence and common sense of the American voter.) In the end, the case was struck down on a technicality, since Padilla should have petitioned the brig’s commandant, not the Secretary of Defense. Unfortunately, this leaves a lot of questions unanswered and civil liberties extremely vulnerable to Executive malfeasance and whatever psychotic lunacy one can get away with by saying the magic words “national security.”
While Padilla is an unfortunate case, stare decisis and a future Court will have the opportunity to slay the dragon of Executive power run amok. Since the War on Terror is technically finished, we’ll see how the laws and executive orders issued during those tumultuous years will hold up under judicial scrutiny.
A limited-run series where I review three books about the Supreme Court of the United States, exploring its historical and ideological conflicts, and the transformations it wrought upon law and society.
Alan Dershowitz: I’m not a hired gun. I’ve got to feel there’s some moral or constitutional issue at stake. Claus von Bülow: But I’m absolutely innocent, and my civil liberties have been egregiously violated!
Reversal of Fortune (Barbet Schroeder, 1990)
With every opinion handed down, the Supreme Court not only decides important constitutional matters, but their opinions could damage the prestige and mythology so ferociously treasured. Recent decades have seen the Court adopt a relationship to the other branches of government that remains isolated and insular. Unlike the media feeding frenzy associated with the President and the Congress, the Supreme Court still forbids TV cameras during oral arguments. The media ban gives the Court a difference from the other branches, at once aloof and antiquated.
The Court desires to keep their distance from the other branches and to avoid breaches in propriety. At least that’s what the dominant institutional mythology would have one believe. Despite the nine justices lacking party affiliation on their nameplates, it is a highly political position. Many Supreme Court justices came from other branches of government or ascended the judicial hierarchy from lower courts. Once on the Supreme Court the justices don’t need to worry about re-election, but that only reinforces the new nominee’s potential danger and importance.
The Court didn’t always have this insular relationship. The day after his nomination to the Supreme Court, Robert Jackson joined FDR’s regular poker games. In these decades, the relationship between the Court and the Presidency became collegial. (Except for the explosive conflict of FDR’s “court-packing plan” that turned into a fiasco, the Court and FDR remained on amicable terms.) Even as late as the Sixties, Supreme Court Justice Abe Fortas regularly advised President Lyndon Johnson. Forced off the bench because of an investigation into the improper use of his influence, Abe Fortas’s seat left an opening for Nixon to appoint a conservative justice.
During the Forties, Tommy Corcoran, the famous New Dealer and lobbyist, got thrown out of the Supreme Court building for alleged indiscretions. These involved his lobbying on behalf of his clients to justices like Black and Douglas. While Douglas and Corcoran had a close friendship, Douglas would not stand for the lobbying. If actions like Corcoran’s were leaked to the press, Douglas and others might have to recuse themselves from the case. And if there weren’t enough justices to hear the case, the case would be either dismissed or sent back to the lower courts.
Prior to the Woodward’s and Armstrong’s Brethren, the Supreme Court preserved the façade of the apolitical. Only two major breaches of Court etiquette occurred prior to the 1979 bestseller. On the first occasion was in 1937, Hugo Black made a radio address denying he was a bigot but affirming his membership and resignation from the Ku Klux Klan.
The second occasion was in 1946 by Robert Jackson, in a heated pique when he was passed over for the Chief Justice post and his spat with Justice Hugo Black. Justice Jackson sent public cables to the Congressional Judiciary Committees exposing Justice Black’s potential conflict of interest in a mining case. Newspapers published the cables that exposed the politicking, bargaining, and ideological grudge matches that took place behind the velvet curtain. While the Supreme Court is a rare government institution that cultivates intellect and interpretation, there are still countless opportunities for alliance-building and ideological clashes. The Court may be removed from the cash-hemorrhaging insults to intelligence one endures during regularly scheduled political campaigns, but that doesn’t mean the Court isn’t an ideological battleground every bit as important as a Presidential debate or town hall meeting.
Not the sharpest knife in the drawer.
What drove Justice Potter Stewart to Bob Woodward and Scott Armstrong was Chief Justice Warren Burger’s inept and devious manipulations of Court protocol. After the Supreme Court grants a writ of certiorari (“granting cert” is the shorthand), the Court then hears oral argument. Following oral argument, then Court then votes and then writes opinions. Granting cert means the case has constitutional merit and the potential to overturn precedent. Once oral argument is heard, the Justices vote and then speak, with the senior Justice in the majority going first. Cases can have multiple votes and the real action occurs with Justices forming alliances and majority-building, every bit as important and political as that of the legislature. But the Court acts like a Microscopic Legislature, with each side battling to get the necessary five votes.
Pimpin’ ain’t easy.
(Congress faces a more challenging prospect with 100 Senators, 535 Representatives, numerous interest groups, lobbyists, and other personalities working and undermining each other to craft a legislature best tailored to their own self-interests. While Congress votes to best please its represented constituency, the Court works for the entire nation.)
Court protocol has the Justice in the majority, not the Chief Justice; assign the opinion to another Justice to write. Chief Justice Burger’s manipulations attempted to put him in the majority and to write the opinion himself. Part of this was based on Burger’s desire to create his personal judicial legacy. Among the clerks of the Court, Burger’s dingbat Machiavellianism had them asking, “Is Burger evil or just stupid?” In one particular case, Burger voted in the affirmative and in the negative multiple times, simply to get into the majority. Burger seemed less about “sticking to one’s guns”, ideologically speaking, than acting like an attention hog. The Brethren excels when it depicts these heated arguments in conference.
During the campaigns of 1940 and 1944, William O. Douglas made no secret of “campaigning from the bench,” writing opinions that would please his liberal-libertarian constituency and also appeal to FDR in the hopes of securing the VP spot. It wasn’t until the ascent of the Missouri haberdasher and his machine-style political campaigning, that Douglas put his presidential ambitions to rest.
Once the older justices began resigning and he could appoint his New Dealer allies to the bench, FDR possessed the rare privilege of nominating nearly the entire Court. In most cases, the nomination and appointment went smoothly, unlike the televised ideological litmus tests of today. But FDR did not always have an effortless time getting his legislation passed. In the wake of the Pearl Harbor attack and pro-war/anti-Asian hysteria, one case came to the attention of the Court. The story of that case reveals how the Court refused to muscle under Presidential pressure and reassert its autonomy from the Executive Branch.
Will the Supreme Court support the President or will it show backbone?
A limited-run series where I review three books about the Supreme Court of the United States, exploring its historical and ideological conflicts, and the transformations it wrought upon law and society.
The Brethren: Inside the Supreme Court, by Bob Woodward and Scott Armstrong (1979)
The Nine: Inside the Secret World of the Supreme Court, by Jeffrey Toobin (2007)
Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices, by Noah Feldman (2010)
I. INSIDE THE SECRET WORLD OF THE SUPREME COURT
The Supreme Court of the United States is one of several institutions in our country that radiates majesty, secrecy, and opacity. Like the Central Intelligence Agency and National Security Agency, it is shrouded in secrecy, periodically issuing decisions with great import to the daily lives of American citizens. It also possess similarities to the Federal Reserve with a group of unelected individuals commanding great power. Furthermore, Supreme Court Justices, like Federal Reserve Governors, have a tendency to speak in opaque terminology. Discovering the importance of a Supreme Court decision sometimes involves digging through mountains of legalese and knowledge of the case’s labyrinthine history up the ladder of the US Justice system.
Supreme Court Justices possess a federal position unlike any other. While Federal Reserve Chairmen must be re-appointed, once one is on the Supreme Court, one is given a lifetime appointment. It makes it a hotly contested position, coupled with the small number of seats on the Supreme Court (only nine, despite the best efforts of FDR). Appointed by the President and confirmed by the Senate, the average voter has little direct influence in the process. In the past, the voter had even less, since US Senators were not elected via direct election. (The 17th Amendment, passed in 1913, worked to change the deliberative, glacial, and otherwise necrotic institution.)
These three books under review, The Brethren, by Bob Woodward and Scott Armstrong, The Nine, by Jeffrey Toobin, and Scorpions, by Noah Feldman, work to remove the secretive veil that covers the Supreme Court. Each book attempts to reveal to readers a “secret history.” (Similar secret histories have included James Bamford’s series of investigative works on the National Security Agency and William Greider’s exploration of the inner workings of the Federal Reserve. One can also add the vast, albeit dubious, literature associated with secret societies, and the equally vast literature associated with detailing the histories of the world’s numerous intelligence agencies.)
The books refract off each other in fascinating ways. One can read punctuated biographies of specific justices. In The Brethren, President Nixon appoints William Rehnquist to the Supreme Court from his previous position in the Justice Department. The Nine follows his ascent to Chief Justice following his appointment by President Reagan. Scorpions explores how Rehnquist, working as a clerk for Justice Robert Jackson, wrote a memorandum affirming Plessy v Ferguson’s segregationist policies. The memorandum would come back to haunt Rehnquist during both confirmation hearings. Justices Hugo Black and William O. Douglas were both appointed by FDR (as recounted in Scorpions) shuffle off the mortal coin in The Brethren in its detailing of the Court during the Nixon and Ford years.
The Brethren by Bob Woodward and Scott Armstrong was the first expose of the inner workings of the Supreme Court. The book covers the Supreme Court terms from 1968 to 1975. Justice Potter Stewart’s dissatisfaction with Chief Justice Warren Burger’s shenanigans prompted the authors to interview justices, clerks, and other personnel working with the highest court. On the surface, one would assume the book is a tawdry exposé, but in actuality, Woodward and Armstrong wrote a limited-scope institutional investigation, exploring the personalities, protocol, and positioning that made the Supreme Court a uniquely American civic organization. One reads about the factions, horse-trading, and decision writing. The intellectual and ideological components that go into the construction of the finalized Supreme Court decision make for fascinating reading. Instead of wrangling the necessary votes in Congress, one has to contend with only nine votes, or, at minimum, five votes in order to create a judicial majority and possibly overturn legislation.
The Brethren’s major accomplishment involved making the reader see the Supreme Court as simply another American civic institution. The Court is an institution with its rivalries and it reaches decisions every bit as partisan and shady as those made in Congress or the Oval Office. Woodward and Armstrong helped de-mythologize an institution deadly serious about preserving its autonomy, prestige, and authority, even if that involves wrapping itself in quasi-religious pomp and circumstance.
If one deigns to call him or herself an “informed voter,” it helps to know what our alleged representatives are doing, especially at the highest echelons of power, and how the power structure operates. Responsible citizenship involves more than parroting back empty slogans befitting a bumper sticker and preening about with an “I Voted” sticker like you just won the Congressional Medal of Honor. The fact that voters cannot elect Supreme Court justices should prompt more people to read books relating the zenith of the Judicial Branch.
