Saturday night owls open thread: Is the Supreme Court beyond repair?

WASHINGTON, DC - NOVEMBER 30: United States Supreme Court (Front L-R) Associate Justice Stephen Breyer, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Ruth Bader Ginsburg, Associate Justice Samuel Alito, Jr., (Back L-R) Associate Justice Neil Gorsuch, Associate Justice Sonia Sotomayor, Associate Justice Elena Kagan and Associate Justice Brett Kavanaugh pose for their official portrait at the in the East Conference Room at the Supreme Court building November 30, 2018 in Washington, DC. Earlier this month, Chief Justice Roberts publicly defended the independence and integrity of the federal judiciary against President Trump after he called a judge who had ruled against his administration’s asylum policy “an Obama judge.” “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said in a statement. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.” (Photo by Chip Somodevilla/Getty Images)
Hang in there, Justice Ginsburg.

Dave Denison at The Baffler writes—Judge Dread: Is the Supreme Court beyond repair?

THE SUPREME COURT ended its term in June with liberals feeling relieved they avoided total defeat. There was a predictable setback when the court refused to take a stand against the extreme partisan gerrymandering that is crucial to the Republican Party’s hold on state and national power. Yet, at least the Trump administration’s blatant attempt to use the census to further the GOP’s political agenda was halted for now, as Chief Justice John Roberts wrote an opinion that more or less said to the administration, “If you’re going to lie to us, you’ve got to do better than this.”

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Meanwhile, conservatives were fuming because they didn’t achieve total victory. Some on the right, hilariously, were demanding the resignation, or even the impeachment, of Roberts for his little half-step off the Trump train. The chief justice was already under suspicion for a ruling way back in 2012 when he voted with the court’s liberals to uphold the individual mandate of the Affordable Care Act. Now he had the temerity to reject the bogus reason that Trump’s Commerce Secretary Wilbur Ross offered for adding a citizenship inquiry to the 2020 census questionnaire—supposedly to better enforce the Voting Rights Act. As the court’s ruling delicately put it: “Altogether, the evidence tells a story that does not match the Secretary’s explanation for his decision.” Or, somewhat less delicately: Ross’s sole stated reason “seems to have been contrived.”

The real reason, of course, had surfaced in May from the hard drive of one Thomas B. Hofeller, deceased. The North Carolina political consultant—who had a hand in redistricting schemes in key states around the country—had concluded that what Republicans needed to skew voting districts even more in their favor was a count not of residents but of voting-age citizens. Putting a citizenship question on the census was the way to get the necessary data. And drawing maps based on the number of voting-age citizens “would be advantageous to Republicans and non-Hispanic whites,” he wrote in a 2015 analysis. This strategy was well known in Republican circles but, oddly, was not cited by Wilbur Ross in official pronouncements.

Not all conservatives were renouncing Roberts, though. Radio bloviator Hugh Hewitt tweeted his view that the gerrymandering ruling was the more consequential one for the long haul. And he may be right. That ruling, which Justice Elena Kagan noted in her dissent shows the court “throwing up its hands” at a practice that “at its most extreme . . . amounts to ‘rigging elections’” is important for the prospects of the Republicans over the next ten years. The GOP has the full “trifecta” of control (both chambers of the legislature plus the governorship) in twenty-two states; Democrats have only fourteen trifectas. That could change in November of 2020, but the whole point of the district lines that were drawn after the 2010 census was to make legislative turnover as unlikely as possible.

The census debacle aside, the Roberts court has been consistently helpful to Republican efforts to distort the election system. Roberts led a 5-4 decision in June of 2013 to strike down a key provision in the Voting Rights Act that affected nine states with a history of discrimination. Within days of that decision, as former Attorney General Eric Holder recently wrote in the Washington Post, “conservative state legislatures unleashed a wave of unnecessary and discriminatory voter ID laws, voting roll purges and poll closures targeting minority and poor communities.” Roberts was also in the 5-4 majority of the Citizens United decision of January, 2010, which ruled that congressional attempts to regulate the influence of Big Money in elections were unconstitutional.

Yet the rationale in the court’s Rucho v. Common Cause decision last month was that the obvious problems of partisan gerrymandering “present political questions beyond the reach of the federal courts.” As historian Eric Foner observed in The Nation,

The idea that the Supreme Court does not have the authority to get involved in political matters would be laughable if the results of this decision were not so damaging. Was not Baker v. Carr, the one man-one vote decision of the 1960s, political? What about Bush v. Gore (2000), which decided the outcome of a presidential election?

The logic of the Roberts court in this instance is to say that certain breakdowns in democratic fairness (which are in Kagan’s words “the devaluation of one citizen’s vote as compared to others,” i.e., a violation of the Fourteenth Amendment’s Equal Protection clause) can only be corrected by the political process—while the process remains stacked against efforts to correct them. The court declines to find a way to make an available fix to the fundamental workings of the democratic system. All of which raises a related question: Can the political system find a way to fix the Supreme Court? […]



“After a duration of a thousand years, the power of astrology broke down when, with Copernicus, Kepler, and Galileo, the progress of astronomy overthrew the false hypothesis upon which the entire structure rested, namely the geocentric system of the universe. The fact that the earth revolves in space intervened to upset the complicated play of planetary influences, and the silent stars, related to the unfathomable depths of the sky, no longer made their prophetic voices audible to mankind. Celestial mechanics and spectrum analysis finally robbed them of their mysterious prestige.”
~~Franz Cumont, Astrology and Religion Among the Greeks and Romans (1912)



On this date at Daily Kos in 2006Bush and African Americans:

“I consider it a tragedy that the party of Abraham Lincoln let go of its historic ties to the African American community,” Bush said. “For too long my party wrote off the African American vote and many African Americans wrote off the Republican Party.”

Republicans didn’t “write off” blacks, they used them as a demonizable prop to bring in the Dixiecrat vote into their fold.

And who is Bush to talk, given the disaster he ignored in New Orleans? He could rush to DC on a midnight flight to sign the “let’s meddle in the Schiavo family’s affairs” bill, but couldn’t be bothered to cut his six-week vacation short when Katrina hit.

Abraham Lincoln would be no more a modern-day Republican than Strom Thurmond or Jesse Helms would be modern-day Democrats.

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