History, Abortion, and the Reactionary Politics of the Roberts Court

 

The Supreme Court under Chief Justice John Roberts is the most reactionary ever in American history. 

Its Dobbs v. Jackson Women’s Health Organization decision taking away abortion rights from American women is the first time the Court has ever overturned a constitutional precedent to take away rights.  But let us not forget that this Court has also killed the Voting Rights Act by declaring most of it unconstitutional in  Shelby County v. Holder and Brnovich v. Democratic National Committee.  It has also killed union rights and unleashed corporate political money in Citizens United.  And it has consistently chipped away at the separation of Church and State as evidenced in the recent Carson v. Makin.  For a Chief Justice so worried about his legacy and the reputation of the Court, history will not be kind to him.

            Ironically, history is central to the Roberts Court assault on rights.   Better yet it is the abuse of history in its method of legal analysis and reasoning. 

            Starting back with Ronald Reagan’s Attorney General Ed Meese conservative jurists, including Justice Antonin Scalia and the members of the Federalist Society, argued that the Constitution should be interpreted in light of the intent of the framers.  Such an approach, asking us what  a bunch of slaveholders, bankers, and  land speculators  who were White and Christian thought about the rights of average people  such as women, the poor, and people of color most certainly would doom their rights.  That is why Justices such as  Earl Warren, William Brennan, and others argued that rights need to be looked at in terms of the evolving standards of decency that mark the maturing of society.  We need to read our Constitution with an evolving political morality that reflects  political sensibilities reflective of today, not  fixed in stone in 1787.

            While some argued  that an intent of framers methodology was a neutral tool of interpretation, it really was window dressing for a conservative political ideology.  It was no coincidence that the so-called  most faithful adherents of such an interpretative approach were conservative and consistently  ruled against individual  rights.

            But now the Roberts Court this term has taken its interpretive tool further by asking whether a right is  “deeply rooted in this Nation’s history and tradition.”  If it is so deeply rooted then  it is a right protected by the Constitution, if not the Court will not protect it.  In Dobbs, the Court offered its version of history to conclude “that that a right to abortion is not deeply rooted in the Nation’s history and traditions.”  Conversely, the Court invoked history in New York State Rifle and Pistol Association to strike down a gun law by arguing  that the right to carry a gun in public for self-defense is consistent with the “Second Amendment’s text and historical understanding.”  Finally in Kennedy v. Bremerton School District the Court upheld the ability of a public school football coach to kneel  and do prayers  after a game, despite concerns by the school about First Amendment Establishment Clause issues.  The Court declared that the ”Establishment Clause must be interpreted by “ ‘reference to historical practices and understandings.’ ”  Apparently praying after football games is deeply rooted in our history.

           The three opinions all have something in common—the use and abuse of history.  The Court invokes history to support its outcomes, but it just so happens that its history supports a Christian, misogynist, gun-toting view of the world.  It is an opinion that is revolutionary and reactionary at the same time.

            A central premise of American law is that it is supposed to be precedent based.  Once the Supreme Court decides an issue it is settled law and unless there are extraordinary reasons to overturn  a prior opinion, one is expected to  follow precedent. Precedent is law. It is part of the Constitution along with text. Over time some of the most fundamental rights in American history, the  right to vote, privacy, marriage,  and use of contraceptives have been the product of Court opinion, reading into the Constitution rights reflective of an evolving  political morality and sensibility.

           This is what makes the appeal to history and tradition so dangerous.  It pits the text of the Constitution, the historical sensibilities of its framers, and an American history and tradition of racism, sexism, and Christian parochialism against reform.  It freezes right  back to 1787 or, as pointed out in Dobbs, to a point at the time of the adoption of the Fourteenth Amendment in 1868.   Dobbs, as Clarence Thomas’ concurrence declares, sets up the Court to reconsider the right of same sex couples to marry, the right to birth control, and the right of same sex couples to engage in private consensual sexual acts.  Such an interpretive  approach is not neutral—it is inherently  in opposition to rights.

Thoughts on the Kavanaugh Confirmation Hearings

What’s at stake with the Brett Kavanaugh hearings?

Even before the allegations of Kavanaugh’s sexual misconduct his hearings were important politically and legally.  Because of the political polarization and partisanship in Washington, Congress and the president have been unable to get a lot done, thereby forcing the US Supreme Court to get involved in resolving major political controversies of the day ranging from the rights of same-sex couples to marry, the constitutionality of Obamacare (Health care), reproductive rights, and a host of other issues.  The federal courts have become an alternative forum for groups to press their political issues.

For the last few years the Supreme Court has been a slightly right of center institution, divided politically 4-1-4.  There are four reliably conservative Justice appointed by Republican presidents, and four reliably more liberal Justices appointed by Democrat presidents.  Both sides vote nearly as a bloc.  In between has been Justice Anthony Kennedy, who has been a swing justice.  In the 30 years plus on the Court he has been perhaps the single most influential Justice, often casting the critical fifth vote deciding cases.  Analysis suggests that over his career he has been in the majority nearly 90% of the time.  In effect, as Kennedy votes so goes the Supreme Court.

Kennedy announced his retirement a few months ago.  The US Constitution says the president shall have the power to nominate members to the Supreme and lower federal courts, subject to the advice and consent (approval or confirmation) by the Senate.  What we are in the middle of are the confirmation hearings.

So who is Kavanaugh?
Brett Kavanaugh is currently a federal court of appeals judge and he served in the Bush administration.  An analysis of his court opinions suggest he is a conservative legally and were he confirmed to replace Kennedy, he might move the Supreme Court in a more conservative direction with a firm five votes.

But are Justices really political? 
The best political science research of voting behavior suggests that ideology increasingly matters.  The best predictor of how a Justice will vote is to look at the appointing president.  At one time presidents were less likely to consider an appointee’s views where nominating them to serve on the Court, but those days are gone.  The Robert Bork failed confirmation in 1986 changed that.  Now, given that Supreme Court justices can serve for life and that Washington is deadlocked, potentially the most significant legacy of a president is who he places on the Court.  Were Kavanaugh confirmed, Trump will now have two appointments to the Supreme Court and the impact will potentially be important.

Do the Democrats realize all this?
Yes.  They understand this and how legally and politically important this appointment is and were ready to fight the nomination originally.  But there were two other factors that made this appointment so contentious.  First, Democrats are mad that when Justice Scalia died while Obama was president the Senate would not schedule a vote on Obama’s nominee Merrick Garland.  This gave Trump an opportunity to fill the vacancy with Gorsuch.  Democrats felt that the Republicans did not play fair and there is some payback here.  But also, the 2018 elections are in the background here, and the original Kavanaugh hearings occurred under the light of how they would motivate the Republican and Democrat political bases.  My point is that the stakes were high even before the allegations of sexual harassment, but it appeared that the Republicans had the votes to confirm Kavanaugh.  Probably all of the Republicans were going to confirm, and perhaps two or three Democrats would have also voted for him.  These were Democrats up for election this year in states that Trump won as president.

How did the sexual harassment allegations change things?
First, it is too soon to tell in terms of a final vote, but it now changed the hearing into even more of a political issue, as well as a question of what it means to be fit to be a justice. 
By that, Republicans already had a gender problem with evidence suggesting females voters were mobilized and turning against them in the 2018 elections.  The is the “me too” movement growing out of reaction to comments by Trump and accusations of sexual misconduct by famous people ranging from Bill Cosby, Harvey Weinstein, and Senator Al Franken.  Women rightly are upset by sexual harassment and misconduct by men and want action taken.
The accusations against Kavanaugh are significant, especially how that there are multiple  accusations.  Republicans are in a bind.  They want to confirm Kavanaugh and move the Court to the right, and this is something of big interest to the Republican political base, especially the evangelical Christians.  However, public opinion is suggesting Kavanaugh is unpopular and women especially oppose him.  Pushing Kavanaugh runs huge political risk that women will vote for Democrats and flip both or either the House or Senate and put them in charge.  The issue or question is it worth the political risk, do you push for Kavanaugh and move the court to the right and take a chance that might put your party out of office?  Also, if Republicans lose control of one or both houses of Congress, this has big implications for Donald Trump in terms of legal investigations against him.

What can we expect in the hearings?
In addition to everything I have already said, hanging over this hearing is the image of the 1991 Clarence Thomas Supreme Court confirmations hearings when the Senate heard allegations  from Anita Hill regarding sexual harassment by Thomas.  While Thomas was confirmed, it left a big legacy. It mobilized female candidates to win big in 1992.  But it also created an image of a bunch of old white men who were out of touch not treating sexual harassment seriously.  The Republicans want to avoid these problems this time.  They want to protect Kavanaugh and make it look like there is a fair hearing while also not upsetting women.  That is why they have hired a female prosecutor to question Dr. Ford.

Will this solve the optics or image problem?
It is not clear but doubtful.  First, prosecutors often act like prosecutors and this is an issue here. Will the prosecutor hired by the Republicans put Dr. Ford on trial and grill her hard.  It could blow up in their face.  Second, how will she or the Republicans treat Kavanaugh and how will he respond?  In effect, who will be perceived to be put on trial.
I think the Republicans have already made major mistakes in this hearing.  They announced no FBI hearing to review the allegations of Ford and others.  A Senate hearing is a horrible place to do this type of fact-finding.  Second, they seem unwilling to allow other accusers to testify, or at least are not giving them sufficient time to stte their case.  Third, the Senate has scheduled a vote for Friday and that vote, along with comments by many Republicans, suggests that they have already made up their mind and the testimony, whatever it will be, will not change their minds.

Could the hearing end the Kavanaugh candidacy?
Maybe.  There are two big differences from Anita Hill.  First, 27 years have passed and American culture has possibly changed.  It is possible sexual misconduct allegations now mean something that they did not back then.  Second, Anita Hill and Clarence Thomas were Black, Kavanaugh, Ford, and the other accusers are white.  Race is not a factor here and it may be harder to discount claims by white women.

In addition, female Republican Senators Collins and Murkowski seem troubled by the Kavanaugh accusations, and if they flip Kavanaugh might lose a final Senate vote if there is an otherwise straight party-line vote.  The sexual misconduct allegations may give enough political cover to some of the Democrats up for re-election in Trump states to vote against Kavanaugh.

Before a floor vote, the Senate Judiciary committee must vote.  This is Friday.  In theory the committee could vote not to confirm and kill the nomination there.  Another possibility is a vote to confirm and send to the full Senate, a third is a vote with no recommendation and send to the full senate.  In 1991, the Senate Judiciary sent the Thomas nomination to the full committee without a recommendation.  Barring a really bad hearing, I doubt the Republicans will let the Kavanaugh appointment die in committee.

Final thoughts?

There is not fixed answer regarding what it means to be qualified to be on the Court.  Aside from all the political issues, the tough question is where and how do these allegations against Kavanaugh, even if true, fit into determining whether he is qualified to sit on the Supreme Court.  Legal skills and judgment obviously should be factors, but how one assesses character is difficult, and this is a major issue here too.

The Case Against the Filibuster--Why the Democrats Got it Only Half Right

The Senate was right to change the filibuster rule for presidential judicial nominees. Yet it was too little change, too late.  What really needed to be done was to abolish the entire filibuster rule for all Senate business.  Senate Democrats will soon find that unless they do that nothing will get done in the Senate and there will be more Ted Cruz's  reading Dr. Seuss.
    After the Democrats were routed in the 2010 midterm elections I argued that one of Obama’s and the Democrats mistakes was not voting to disband the filibuster rule on day one in 2009.  While for 18 months the Democrats had 60 votes in the Senate and potentially could do what they wanted, they had failed to act as a unified party were  held hostage both by Republicans and also by the conservatives among their own ranks including Senators Landrieu and Nelson.  Had they killed the filibuster they would have done not only Obama, progressives, and their party a favor, but they too would have saved both the party and America from what has not transpired in the last three years–gridlock and a country held hostage by extremists.  Remember, a far better health care bill might have been passed had the threat of a filibuster not existed.
    Three arguments bode against changing the rule–tradition, bipartisanship, and minority rights.  All three are fallacious arguments.  First, arguing that changing the filibuster rule is wrong because it goes against a rule that has a long tradition in the Senate makes no sense.  While history may argue in favor of some things and while maybe at one time the filibuster was a good thing for the Senate, times have changed.  Political parties are more polarized, partisan, and ideological than they used to be (except of course prior to the Civil War) and there is now less of a tradition of compromise and bipartisan than there was even a generation ago. At one time even controversial presidential appointments got votes.  Robert Bork failed to be confirmed as a Supreme Court Justice but he got a floor vote.  Clarence Thomas got a floor vote and was confirmed.  Democrats could have filibustered both but did not.  At one time nominees got voted on but times and circumstances have changed in the Senate. Thus, as the Senate changes so must it rules.
    Moreover, one should not forget that the “nuclear option” to change the filibuster rules on judicial nominees was originally a Republican idea.  In 2005 Republican Senators Bill Frist and Trent Lott, frustrated with Senate Democrats who were angry that the latter were blocking George Bush’s judicial nominees, proposed doing then what Harry Reid and the Democrats did this past week.  It was only a compromise and a backing down by Democrats then that prevented the rule change from going into effect back then.  What comes around goes around.
    Second, as just noted, there is less bipartisanship in the Senate now than in recent memory.  At one point it was less likely that the Senate needed 60 votes to get anything done.  But clearly we have seen how especially Senate Republicans have made it clear that they are now joining their House colleagues in making it impossible for Obama to get anything done.  Remember, after the 2010 elections Senate Republicans made it clear that their number one objective was to prevent Obama from getting anything done.  The filibuster now is being used not really to protect rights of minorities, but simply to be obstructionist.
    This leads to the third argument.  Senate Republicans argue that the filibuster is needed to protect minority rights.  This is an aggregated if not false argument.  For many the image of the filibuster is that of Jimmy Stewart in Mr. Smith Goes to Washington, speaking until he is hoarse in defense of principle.  Yet the reality is that more often than not the filibuster has been used to thwart minority rights than to protect it.  The filibuster was deployed in 1946  to block the permanent creation of the Fair Employment Practices Committee.  Strom Thurmond filibusters in an attempt to stop passage of the 1957 Civil Rights Act.  Robert Byrd uses it in an effort to halt the 1964 Civil Rights Act.  The reality is that the filibuster is invoked to prevent prevention of minority rights, not to sustain them.
    But more importantly, while Republicans argue that the recent change to the filibuster rule will hurt minority rights, the reality is that the only minority it hurts if at all are Republicans.  They are invoking filibuster to argue that their rights need to be defended–they are the minority they needs protection.  How odd an argument.  The filibuster is not about protecting party rights, it is about protecting the rights of the people.  Moreover, the Senate and Congress in general are not supposed to be counter-majoritarian bodies.  They are supposed to majoritarian institutions reflecting majority will.   And even if it were the case that the Senate is supposed to embody anti-majoritarian structures–as political scientist Martin Diamond once argued–the representation structure of it granting all states the same number of Senators, along with bicameralism, is more than enough to protect minority interests.
    The first step in reforming Congress for the good is eliminating the filibuster for everything.  It is antiquated rules that is waxed over romantically for reasons that are hard to fathom.  The changes made last week go only part way toward reforming the Senate.  This partial change will no doubt polarize the Senate even more, perhaps leading the Democrats in frustration to finish the job on the filibuster that they already started.

The Supreme Court and Health Care: What's Next?

Barring a miracle, the individual mandate in the Obama health care act is dead. But even another possibility exists that the entire law may be voided by the Supreme Court. This should have never gotten to this point.  But what if the act is struck, what then?

The Patient Protection and Affordability Health Care Act (Obamacare or the Obama health care act “OHCA”) was always a flawed act to start. Yes it ensured an additional 36 million individuals and that was great. Yet it excluded universal coverage still leaving several million without health insurance.  Yes the law also requires insurers to issue policies to those with preexisting illnesses and to allow parents to keep their children until age 25 on their policies, but there was little in the law to deal with the cost issues. The government would still be barred from negotiating with drug companies for better prices, private insurance companies would face little market competition, and the vast administrative costs that the current system produces would not be addressed. All of these problems rendered OHCA a flawed piece of legislation.

Yet flaws like these make it bad legislation but not unconstitutional. The reason the law is before the Court is because it is a Republican idea.  The individual mandate is originally a Republican idea offered in place of the single-payer option.  Obama embraced it and the Democrats pushed it through Congress with barely a Republican vote.  The latter turned on the individual mandate after trumpeting  it, and now they are calling their idea unconstitutional. How ironic. Even more ironic is the fact when the Supreme Court heard the case last week one of the Justices even suggested that the way to get around the possible constitutional problems was to adopt a single-payer system.

Following the hearings last week was amazing. The OHCA is a lesson in sloppiness. The Solicitor General who argued the case before the Supreme Court was weak. Going into orals anyone who knew anything knew that the central issue and most important question to answer for the Court was to indicate what are the limits of the Commerce clause. Specifically, since the authority for the individual mandate rested on whether health care came within the realm of interstate commerce that Congress could regulate, the government needed to show that it had the power to act. But in demonstrating that, one knew Justice Kennedy–the swing vote–for example, would want to know if there are any limits to the Commerce clause if the individual mandate were upheld.

Solicitor General Verrilli failed to answer this question. He had an easy answer. He could have pointed to a 1992 decision United States v. Lopez where the Court struck down a provision of the Gun-Free School Zones Act of 1990 as exceeding federal commerce powers, and to a 2000 Court decision in United States v. Morrison where it struck down a  provision of the Violence Against Women Act of 1994 as exceeding federal commerce powers. He could have said these two cases established the outer boundaries of the Commerce clause, articulated the reasoning in them, and he would have done his job. Instead, he gave an opening to Justice Scalia to ask stupid questions about the federal government mandating people to buy broccoli under the Commerce clause. We should have never gotten there.

Additionally, the hearing on severability should have never taken place. The severability issue is over whether if the individual mandate is struck the entire law is dead.  A general piece of boilerplate attached to bills is a severability clause stating that if the courts declare any part of the law unconstitutional the section voided would be severed from the rest of the law, preserving it.  One would have thought in a 2,000 page law this boiler plate would have been in it, but it was not.  Sloppy.  Thus the real possibility of a Court voiding the entire law.

But the Court itself has also been sloppy here. Clarence Thomas should have recused himself from the case because of his wife’s political activities in opposition to the law. Similarly, a case can be made that Justice Kagan too should have recused herself because of possible involvement with the law at the Justice Department. But this is also a Roberts Court that is perhaps the most conservative Supreme Court since the 1930s, and its excesses in this and other recent ones such as Citizens United strip away any veneer that conservatives do not engage in judicial activism.

But what is the law is voided, where are we? At present the United States spends 18% of its GDP on health care and with Baby Boomers aging, it is projected to increase to perhaps 20%. With the United States current GDP at $15 trillion in 2011, total health care spending is $2.25 trillion. America has the most costly health care system in the world, both in real dollars and in GDP percentage. The Netherlands is second in terms of percentage of the GDP spent on health at 12%. The US spends an average of $8,000 per person on health care, other developed countries about $2,000. They also achieve what we do not–universal coverage–and often have higher life expectancies, lower infant mortality rates, and generally better health care outcomes than we do. Out system is expensive and it does not deliver the goods, unless you are well insured.

But defenders of the American health care system love to point to freedom. They say our current system maximizes choice. They love to point to stories about people in Canada flocking to the US for coverage or for long waits in line for elective surgeries such as nose or boob jobs. Yes this may be true and perhaps other problems exist, but how much choice do we really have in the US? For those without healthcare, how much choice is there? For those in HMOs how much choice is there? The reality is there is little health care choice for millions in the USA.

Reforming health care is critical to the future of the US economy. Image if the US spent only 12% and not 18% of its GDP on health care. That would save the country $750 billion per year? What could we do with that money? Pay down the debt, cut taxes, invest in roads and schools, or more. Solving the health care crisis is still going to be with us after the Supreme Court rules, Republicans take over, or Obama remains in office.