
The Supreme Court of the United States was established by the Constitution. With the executive (the President and the Cabinet agencies), the legislative (Congress and the Senate), and judicial (the federal courts) arms of the government, the Founding Fathers had designed an elaborate check and balance system that resembled rock scissors paper. The Coton governs the legitimacy of the Supreme Court, but its authority is also derived from its Constitutional role. It is the only arm that is not elected by the voters, it has to wait for questions to be presented to it, and its jurisdiction is completely responsive. The power of the judiciary is generally regarded as the weakest branch of Weller because, as Alex Hamilton eloquently argues, it does not ‘influence the sword nor the purse’, nor ‘possess the strength or wealth of society’. This branch can only exercise judgment, therefore possesses no will or force.
But when that judgment is put in question, what happens? The Supreme Court’s authority rests on its aura. Its headquarters are behind the Capitol building, a structure most commonly referred to as the ‘marble palace’. This allows the Supreme Court to operated in an assumed cocoon of confidentiality that the rest of the world has come to label as a lack of transparency.
Whether one happens to be in the court to view the arguments in person because with the oral arguments being public, there are no C-SPAN cameras, which means there are limited spaces. The Court has drawn ire from what it deems controversial decisions in the past and with the growing concern over the politics behind the appointments and the scathing exposés over the conflicts of interest and straying from accepted principles of jurisprudence, led to the legitimacy of the decisions being called into question recently.
Dawn Porter’s “Deadlocked: How America Shaped the Supreme Court,” is a four part series which looks at this issue. The subtitle gives a cue that this series is not about how the court made an impact on the nation, something that was plausible if this series was made in the 1970s.
Porter is also the director of “Trapped”, the gripping documentary that chronicled the overwhelming anti abortion legislation prepared by Republican states waiting to be enacted following Roe’s overturn. Also, the remarkable “Lady Bird Diaries”, which is showcased through the audio diary of the First Lady.
The movie sheds light on Susan Salad off’s ‘Hot Coffee’, a documentary that sought to shine a light on how courts are being remade at both the federal and state level over the course of a decade. The intention behind the overhaul was to favor corporations and rich individuals rather than consumers and middle class families. The dissertation did an excellent job at depicting the concentrated and well funded efforts to control court decisions that followed the landmark Supreme Court decisions that segregated schools, granted rights to defend criminal’s, and put an emphasis on privacy in the Constitution which led to rulings that favored birth control, inter racial marriages and abortion.
The story is easier to understand and not too complicated. Also, in the series “Deadlocked,” there is a moderate portrayal of the Supreme Court then and now. I bet the contemporary audience will be shocked to learn that during the time of Eisenhower, the process was both more and less political. It was more political because Eisenhower secretly made a deal with former Governor of California Earl Warren to offer him a Supreme Court position in exchange for his assistance in the elections. As for less political, it had to do with the idea of turning the confirmation hearings of the nominees into a gruesome political fight during the senate judiciary committee meeting. The series focuses on each justice’s arrival, some of the most important decisions as well as the controversial ones. Some of the controversial decisions include the right to marry individuals from different ethnicities or Miranda’s warning for the people being arrested. People are so accustomed to these decisions today, it is hard for one to fathom that there was a time when they were at the verge of being decided differently. Others still continue to rankle.
Not long ago, progressive factions enjoyed the upper hand. For example, conservative judges possessed an inherent bias against nullifying prior judgments. As the series exhibits, there was a certain dissatisfaction with the likes of Souter and O’Conner because their demo critic leanings were considered above expectation. To prevent this from happening again, the Federalist Society grew from just two student run pillars in law schools to a well oiled machine with tentacles nationwide in setting the agenda of the new breed of lawyers. These lawyers have shattered the traditional conservative mold (which supported a literal reading of the constitution and minimalistic governance) and replaced with what can only be termed radical reinterpretation of two century old principles of legislative and judicial constraint. If you took a shot every time someone in this movie speaks about ‘shattering norms’ or ‘abandoning precedent’, it would get blurry, which is perhaps the right state of mind to view the fourth installment regarding the recent years plagued with scandals.
The series provides good historical context, depicting Nixon as the first Commander in Chief to try to use his appointments to shift the Court right and his unsuccessful nominations of Clement Haynsworth and G. Harrold Carswell, too, but it leaves out one of the craziest sentences ever spoken on the Senate floor, Nebraska Senator Roman Hruska’s defense of Carswell: Even if he is mediocre, there are a lot of mediocre judges and people and lawyers, and they are entitled to a little representation, aren’t they? Then there was Reagan’s nomination of Robert Bork which was a progressive’s win during the time, but fueled the Republicans for the ugly confirmation fights ahead. Including that the Majority Leader sues Barack Obama’s nominee Merrick Garland, now the Attorney General, saying it was too close to the election (almost a year) but forcing Trump’s third appointment to the Court, Amy Coney Barrett, days before the election Trump lost to Biden. Like the judges he pushed through, McConnell did not feel bound by precedent or consistency. The confirmation of Clarence Thomas and Brett Kavaunaugh both alleged sexual abuse, though ultimately were confirmed.
There’s a good guide to the underlying mechanics of the shadow docket and the ability to sidestep the appeal process. Many cases, some of great importance, are decided without briefing or oral argument, and even more astonishingly, without a written opinion. Obama and George W. Bush employed the emergency shadow docket eight times over the sixteen year period they were in office. In contrast, Trump depended on this strategy 41 times during his 4 year term.
The most significant case studies are covered by the best in the business, for example, Slate’s Dahlia Lithwick, Ruth Marcus of Washington Post, Supreme Court lawyer Paul Smith or the University of Chicago’s Geoffrey Stone, who happens to be my favorite law school professor. But, there are a lot of such experts, and identifying them during their repeat stays is not always easy.
The final installment of this particular series was labeled Crisis of Legitimacy, as it discussed covering the recent investigations around gifts and special favors by billionaires Tom and Alito, plus Ginny Thomas’ messages to Trump Chief of Staff Mark Meadows on the legitimacy of the election. However, this episode did not cover the core problem which has led to the public skepticism of the Supreme Court reaching an all time low.
The 2010 Citizens United case paved the way for unprecedented dark money that contributed towards President Trump’s selection of lower court and Supreme Court judges, and is instrumental in the Court’s turning back on various gun rights and other controversial issues. Kavanaugh’s high school sexual assault of Ford was witnessed, but we did not hear much of the considerable debts he had before his appointment nomination and who paid them off. He was never asked to respond to that question.
For the years, this has been one of the many norms that we have been trying to shatter. During the administration of Trump, one of the things that changed was taking away the job of evaluating the fitness of judicial nominees from the independent and non-political body know as the ABA and giving it to the partisan groups. This, one might say, is a step in the right direction. We see and hear Leonard Leo’s boomeranging where he is at the Federalist Society and doing partisan work to promote the nominees to the Court, but we do not hear from those people like the Koch brothers and other extreme group billionaires who fund the Federalist Society. He is an extreme example of someone who works without morality. This series did not even mention how billionaire Barre Seid had donated 1.8 billion dollars to Leo’s attempts in getting far right judges and justices nominated. One cannot help but shake ones head at how little detail there is on the matter of Biden and Trump’s approach towards far right extremism along with the climate change issue. The series mentions Justice Brennan arguing that the most important number for the court is five the minimum required votes in a jury but in contemporary America, that dollar sign is everything or so it would seem.
A crucial point of the series is captured in a short segment of a reasoned argument between Justice Breyer (a liberal) and Justice Scalia (a conservative) that was rather cordial. Scalia claims that the phrases used in the Constitution are unequivocal and are expected to be adhered to. Breyer replies with a smile that the phrasing is never unambiguous. Breyer is right about the intricate arguments that reach the Supreme Court, one which is almost always framework around the clash of two or more rights. The Court is unwilling to adopt the ethics rules which every other judge must follow, making it less believable that the decisions that have come from the Court, such as the one that turned the right to personal choice into the right to compel choice, are legitimate. Unlike the Warren Court decisions which were viewed as extreme by many, this could set into motion the checks and balances that every branch of government is expected to adhere to.
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