CM – Book Review: ‘Justice on the Edge’

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The real question today is whether the new majority in the United States Supreme Court, whose views Ronald Reagan’s attorney general has described as « reactionary » rather than « conservative », have the common sense not to divide our nation bust.

Certainly the picture of the court painted in a new book by New York Times columnist Linda Greenhouse, Justice on the Brink, fully justifies the « reactionary » characterization.

The book traces the term of office of the court 2020-2021. It goes through the term in chronological order with detours to outline each judge and discuss the substantive issues of the court, including race, religion, abortion, and property rights, among others. Greenhouse concludes that the court is now controlled by a right-wing majority of five judges and that the extreme views some of these judges have expressed in the past, along with their fondness for colorful expressions, are cause for concern.

One problem is that they seem indifferent to the historical accident that gives them their power. Although Republican candidates won a majority of the vote in only two of the last eight presidential elections, and Republican presidents served slightly less time than Democrats, Republican presidents appointed six of the nine judges, including a new majority of five as chief judge, John Roberts .

The Chief Justice of the Court, Justice Clarence Thomas, prides itself on being a judicial bomb thrower. As Greenhouse puts it, he loves “chimeric legal theories”. To take just one example, he suggested that states should be free to adopt their own religions.

Next in seniority is Judge Samuel Alito, who has suggested that he may be willing to remove state courts of their authority under the state constitutions to review the actions of a state legislature in selecting presidential elections.

Thanks to President Donald Trump, three have now joined these two who achieved their positions by making a variety of dog whistles that received far-right support.

Judge Neil Gorsuch launched his own assault on the administrative state by drafting a statement as a judge in lower courts saying that courts that interpret the law that governs the action of federal agencies are not required to do so to note how the authorities themselves interpret this law. She says he is an “unrestrained arsonist who pours rhetorical gas” on Judge Alito’s ideological “smoldering rage”.

Judge Brett Kavanaugh is so passionate about gun rights that he compares them to freedom of speech, although the First Amendment, which says « no law » can abbreviate freedom of speech, is different from the Second Amendment, which says gun rights are « well regulated.  »

Finally, Judge Amy Coney Barrett made a name for herself in the academic world with an article in which she argued that Catholic judges could not in good conscience refuse to follow Church doctrine in making decisions. While the article dealt with the death penalty, its implications for their views on the right to abortion are evident.

Of course there are four other judges. Chief Justice Roberts is portrayed by Greenhouse, who is politically affiliated with the Five but has a truly conservative temperament who seeks to keep the court out of political hot water. But the five don’t need his voice.

The three nominees of the democratic presidents are of different opinion. Judge Sonya Sotomayor rings the bell by denouncing the extremism of the new majority. Judge Elena Kagan takes a more political approach and looks for common ground. Judge Stephen Breyer preaches to the majority that the court should not be viewed as political, a position with the unfortunate consequence that he refuses to step down at the age of 82 despite President Joe Biden being able to replace him . Ironically, Breyer only got his seat because his predecessor, Judge Harry Blackmun, stayed in court until he was certain that President Bill Clinton would choose his successor.

Holding the country together is what the Supreme Court is supposed to do. In the Federalist Papers, the designers said the purpose of the Supreme Court was to prevent states from fighting each other. In other words, to resolve disputes, not to create them.

In clear negligence, the Dred-Scott decision of 1857, the Supreme Court struck down the Missouri Compromise Congress, which Congress had enacted to settle disputes over slavery. The factually questionable rationale for the opinion – that the designers in 1787 did not regard slaves or even descendants of slaves as « citizens » – is the kind of « originalism » that the new majority advocates today.

More importantly, some of the statements made by the Majority Judges use the kind of « rhetorical gas » that the Dred Scott statement used when describing the descendants of slaves as « beings of inferior order » that were « none. » Had rights that the white man “had to respect.” In 1861 the civil war ensued.

If we are lucky, the present judgment will never face such a divisive subject as slavery in 1857.

In this opinion, the court withdrew the doctrine that had long allowed sensible state regulation of private property. The court ruled that California could not require farmers who employ migrant workers to have union organizers come to their property for a certain number of hours a year. Without justification, the report abandons the traditional reasonableness approach and simply says that state regulation is inadmissible.

In future disputes, taking position could become the cornerstone of an attempt to revive the court doctrines abandoned in the 1930s that were used to ban many aspects of Franklin Roosevelt’s New Deal. If so, the government’s ability to properly regulate banks, corporations, commerce and agriculture could be seriously jeopardized. And those protected by these regulations will not like it, especially when we are told « there is no state regulation that a court must respect ».

Stay tuned.

Luther Munford is a Northsider.

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