The Supreme Court Majority Is Corrupt and Illegitimate

Mitch McConnell and the Senate GOP stole two Supreme Court seats.

During most of its history, big business and the wealthy have controlled a majority on the U.S. Supreme Court. Between 1870 and 1936, an activist “conservative” majority on the Supreme Court threw out numerous laws passed by the elected branches that benefited working Americans. That majority invalidated the minimum wage several times, threw out laws banning child labor and shredded civil rights laws that protected the newly freed African Americans.

During Franklin Roosevelt’s first term, five GOP appointed justices threw out most of his New Deal legislation. Beginning in the late 1930s, the Supreme Court had a Progressive majority for the first time in history. That Progressive majority lasted until the early 1970s. Then, during the Nixon Administration, big business and the conservatives regained their long standing majority.

Due to a multi-decade campaign led by the GOP and big business, a majority of the Supreme Court and the lower courts have been appointed by Republican presidents. The results of this campaign have been profound. The so-called “conservative” majority on the Supreme Court has consistently ruled in favor of the GOP, big business, the Christian right and against labor and consumers. This has tilted the political and economic playing field in favor of the GOP and the top 1%.

Since the Nixon Administration, 16 out of the last 20 Supreme Court Justices have been appointed by Republican presidents. The last Democratic president to appoint a Chief Justice was Harry Truman all the way back in 1946. This is despite the fact that the Democrats have won the popular vote in 7 out of the last 8 presidential elections.

A radicalized Supreme Court with a 6–3 “conservative” majority is already acting as a super legislature for the GOP and is beginning to enact the most unpopular parts of the GOP agenda. Roe v. Wade was overturned in the middle of the night without any oral arguments, briefing or a signed majority opinion. Without a doubt, assault weapons bans passed at the state and local level, and the last few remaining campaign finance laws will be tossed out as well.

We are all familiar with Mitch McConnell’s procedural machinations in which he stole two seats that should’ve gone to Democratic presidents. What is seldom discussed is the major role of dark, corporate campaign cash that has been spent to market the nominations of Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

Senator Sheldon Whitehouse (D-RI) has raised the issue of anonymous political donations and Supreme Court nominations in a series of hearings this year. According to the SCOTUS Blog on March 11, 2021: “Whitehouse contended that a “multi-hundred million dollar covert operation” influences conservative Supreme Court justices at three stages. First, a “gatekeeping organization” Whitehouse didn’t name (which witnesses later identified as the Federalist Society) grooms potential nominees for vacancies on the bench. Second, advocacy groups lobby for votes to confirm a chosen nominee in the Senate. And third, law firms and interest groups — allegedly with the same anonymous backers as the gatekeeper and advocacy groups — file amicus briefs urging the court to decide cases for the benefit of corporate interests.”

“Stripped down to one paragraph, Whitehouse’s argument is: Corporate interests for decades have focused on controlling America’s courts. They have done so with the help of private groups that are not required to disclose donors. Those groups help select and promote conservative judicial nominees using millions in “dark money” for advertising. Those donors also anonymously fund groups that bring and support Supreme Court cases that give cover to their agenda. And that has led to more than 80 partisan 5–4 decisions under Chief Justice John G. Roberts Jr. that gave victories to big Republican donor interests.” Roll Call on June 23, 2021.

The only solution to dealing with this illegitimate and corrupt Republican majority on the Supreme Court is to add four seats to the high court. Thomas Jefferson, Abraham Lincoln & Ulysses Grant all increased the number of seats on the Supreme Court. Jimmy Carter added 152 seats to the lower courts.

What history teaches us is that alterations to the federal courts are a long time American historical tradition. The reality is that historical norms support the notion of Congress altering the number of seats on the Supreme Court and the lower federal courts. This norm dates all the way back to our Founding Fathers.

We need to make GOP extremism the centerpiece of the 2022 campaign. The Republican Party is completely unfit to govern. “Don’t agonize; organize. No whining; just winning.” Nancy Pelosi.

I’m a trial lawyer, a Democratic activist and a sports fan.