Impeachment Crisis Will Test Independence of Supreme Court “Conservatives”
Recently, two of the GOP appointed justices on the Supreme Court have gone out of their way to assert that the Supreme Court isn’t political. In 2018, Chief Justice Roberts maintained: “ We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.” Just three days ago, Roberts claimed that: “We don’t go about our work in a political manner.” Associate Justice Neil Gorsuch also weighed in and claimed that the Supreme Court is not split on party lines.
Just how do the claims of two of the members of the Supreme Court’s “conservative” majority square up with recent history? As former New York Governor and 1928 Democratic nominee Al Smith once said: “Let’s look at the record.”
The origin of today’s dominant “conservative” bloc on the Supreme Court began during the Nixon Administration. During his first term, Nixon appointed four justices. What that meant was that the only progressive majority in the history of the Supreme Court ended sometime in the early 1970s. With the exception of the period of time between 1938 and 1973, “conservatives” and big business have controlled the Supreme Court.
The Nixon appointed justices began hollowing out the progressive precedents of the Earl Warren Court. The criminal procedure protections in the Bill of Rights were largely ended. Civil rights laws were more narrowly interpreted and business began a long winning streak in the Supreme Court.
This conservative trend was largely overlooked by the general public during these years but the “conservative” majority’s leanings were exposed in the infamous 2000 Bush v. Gore case that awarded the presidency to George W. Bush. The five GOP appointees on that case ignored years of prior precedents on election law and created a novel equal protection theory to stop the recount in Florida. The legal basis for the decision was so flimsy that the five “conservatives” ruled that Bush v. Gore was a one time ruling and didn’t create a new precedent.
The high court’s rush to the right was accelerated by the replacement of Sandra O’Connor with Samuel Alito in 2005. Four years later, CNN legal analyst and author Jeff Toobin described the direction of the Supreme Court as follows: “In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.”
What that has meant in the real world is that voting rights have been gutted. That has led to a wave of voter suppression laws in numerous states that have favored Republican candidates by making it harder for minorities, the elderly and the young to vote. The authors of these voter identification laws have openly bragged that these laws are designed to help Republicans win elections.
In the area of campaign finance law, the five “conservatives” on the nation’s highest court made a landmark ruling in the infamous 2010 Citizens United case that tilted the playing field in favor of the GOP. This 5–4 decision opened the door to a flood of dark, corporate campaign cash. (Interestingly enough, approximately $34 million in dark money was spent to promote the confirmations of Gorsuch and Kavanaugh.) The so-called “conservatives” threw out decades of settled law and wrote a bizarre and dysfunctional new campaign finance statute that no elected branch would have ever passed.
While the “conservatives” have made it easier for big business to participate in the political process, those same five GOP appointees in 2018 kneecapped the ability of labor unions to maintain their members and collectively bargain for wages and benefits. Unions have traditionally been the only real check and balance on the top 1% in the U.S. Now that the five “conservatives” have gutted the ability of working families to organize and turn out the vote, this decision will help the GOP win future elections.
It’s pretty obvious from a reading of recent history, that the five “conservatives” on the Supreme Court have handed the GOP a string of victories they could have never won at the ballot box or in the elected branches. The GOP is using the “conservative” bloc on the Supreme Court to enact its toxic and regressive agenda.
That “conservative” bloc will be tested as never before by the impending impeachment crisis. Trump has taken the position — like Nixon did in 1974 — that executive privilege is absolute and he has no obligation to comply with subpoenas for documents and witnesses. Democratic subpoenas for critical witnesses and documents will only escalate now that the House has instituted impeachment proceedings.
In the recent past, the federal courts has been highly skeptical of claims of executive privilege. In the 1974 Nixon case, a unanimous Supreme Court ordered Nixon to turn over the tapes. Similarly, a lower federal court in the late 1990s rejected several claims of executive privilege made by President Clinton.
This is a Supreme Court majority that has been dismissive of venerable precedents and is one of the most activist courts in history. There are no guarantees that the “conservatives” won’t gut the prior precedents on executive privilege and vote to sustain Trump’s cover up. Brett Kavanaugh was chosen — in part — due to his belief that the 1974 Nixon case was wrongly decided.
The dominant “conservative” bloc will be sorely tested by our current constitutional crisis. Unfortunately, we are in this predicament because millions of Democratic voters stayed home or voted third party in 2014 and 2016. We lost control of the Senate in 2014 and lost the White House in 2016. The federal courts are on the ballot in every election cycle. Voting matters.
If we lose in 2020, the “conservatives” will cement their majority on the Supreme Court for generations. A radical Supreme Court could very well invalidate future progressive legislation passed by a Democratic Congress and President. Don’t forget that a reactionary Supreme Court majority threw out most of Franklin Roosevelt’s New Deal during his first term.
The stakes couldn’t be any higher in 2020. As Theodore Roosevelt proclaimed in his battle against the reactionary right in 1912: “Fearless of the future; unheeding of our individual fates; with unflinching hearts and undimmed eyes; we stand at Armageddon, and we battle for the Lord!” Now let’s leave it all out on the field in 2020! We can do this!