The Fundamental Crisis and Foundational Contradiction Facing the United States During the Upcoming Presidential Election Year of 2024: Fascism guided, informed, and enabled by the Doctrines and Practices of White Supremacy and Global Capitalism--PART 23

Opinion

The Supreme Court Is Playing a Dangerous Game
by Jamelle Bouie
March 22, 2024
New York Times 

Christopher Lee for The New York Times

If the chief currency of the Supreme Court is its legitimacy as an institution, then you can say with confidence that its account is as close to empty as it has been for a very long time.

Since the court’s decision in Dobbs v. Jackson Women’s Health Organization nearly two years ago, its general approval with the public has taken a plunge. As recently as the last presidential election year, according to the Pew Research Center, 70 percent of Americans said they had a favorable view of the court. In the wake of Dobbs, that number dipped to 44 percent. Twenty-four percent of Democrats, according to Pew, said they approved of the Supreme Court.

In the latest 538 average, just over 52 percent of Americans disapproved of the Supreme Court, and around 40 percent approved.

Does the court know about its precipitous decline with much of the public? It’s hard to say. It’s easier to answer a related question: Does it care? If the recent actions of the conservative majority are any indication, the answer is no.

Over the past month, members of that majority have effectively rewritten the 14th Amendment to functionally shield Donald Trump from the constitutional consequences of his actions leading up to and on Jan. 6. They have taken up the former president’s tendentious argument that he is immune to criminal prosecution for all actions taken while in office — postponing a trial and potentially denying the public the right to know, before we go to the polls in November, whether he is a criminal in the eyes of the law.

Most recently, the court allowed the State of Texas, governed by a cadre of some of the most reactionary conservatives in the country, to carry out its own immigration policy in contravention of both federal officials and the general precedent that it’s the national government that handles the national border, not the states.

It is enough to make teachers and practitioners of constitutional law wonder, as my colleague Jesse Wegman noted last month, whether there’s any reason to play the table as though it were still on the level — to continue to treat the court as if it were anything other than a partisan political institution.

Here I want to raise an additional point. It’s not just the recent actions of the Supreme Court — including the corrupt conduct of some of its members — that jeopardize its legitimacy and political standing but also the circumstances under which this particular court majority came into being.

There is no way to look past the fact that five of the six members of the conservative majority on the Roberts court were nominated by presidents who entered office without the winds of a popular majority. John Roberts and Samuel Alito, the author of Dobbs, were placed on the court by George W. Bush, who entered office short of a popular vote win and on the strength of a contested Electoral College victory. The other three — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — were nominated by Trump, who lost the national popular vote by more than two million ballots in 2016.

The three Trump justices bring additional baggage. Each one was nominated and confirmed in a show of partisan power politics. Gorsuch was the direct beneficiary of Senator Mitch McConnell’s blockade of the seat held by Justice Antonin Scalia, who died early in 2016. Republicans, led by McConnell, then the Senate majority leader, refused to give President Barack Obama’s nominee, Judge Merrick Garland of the U.S. Court of Appeals for the D.C. Circuit, a hearing in the Senate Judiciary Committee. It was the first time the Senate had simply ignored a president’s nominee for the Supreme Court.

Kavanaugh was confirmed by a narrow vote of 50 to 48 (with one abstention and one absence) in the face of a credible accusation of sexual assault. Barrett was confirmed in flagrant violation of McConnell’s own rule for Supreme Court nominations. To block Garland, McConnell said that it was too close to an election to move forward; to confirm Barrett, McConnell said that it was too close to an election to wait.

There is no question that the Supreme Court’s ruling in Dobbs was the catalyst for its poor standing with the public. But the Dobbs majority owes itself to a garish Republican partisanship that almost certainly worked to weaken the political ground on which it stood in relation to the American people.

At the risk of sounding a little dramatic, you can draw a useful comparison between the Supreme Court’s current political position and the one it held on the eve of the 1860 presidential election.

It was not just the ruling itself that drove the ferocious opposition to the Supreme Court’s decision in Dred Scott v. Sandford, which overturned the Missouri Compromise and wrote Black Americans out of the national community; it was the political entanglement of the Taney court with the slaveholding interests of the antebellum Democratic Party.

Six of the seven justices in the majority were Democratic appointments. The one who wasn’t, Samuel Nelson, was nominated by John Tyler, who was a Democrat before running on the Whig ticket with William Henry Harrison. Five of the justices were appointed by slave owners. At the time of the ruling, four of the justices were slave owners. And the chief justice, Roger Taney, was a strong Democratic partisan who was in close communication with James Buchanan, the incoming Democratic president, in the weeks before he issued the court’s ruling in 1857. Buchanan, in fact, had written to some of the justices urging them to issue a broad and comprehensive ruling that would settle the legal status of all Black Americans.

The Supreme Court, critics of the ruling said, was not trying to faithfully interpret the Constitution as much as it was acting on behalf of the so-called Slave Power, an alleged conspiracy of interests determined to take slavery national. The court, wrote a committee of the New York State Assembly in its report on the Dred Scott decision, was determined to “bring slavery within our borders, against our will, with all its unhallowed, demoralizing and blighted influences.”

The Supreme Court did not have the political legitimacy to issue a ruling as broad and potentially far-reaching as Dred Scott, and the result was to mobilize a large segment of the public against the court. Abraham Lincoln spoke for many in his first inaugural address when he took aim at the pretense of the Taney court to decide for the nation: “The candid citizen must confess that if the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers.”

As much as ours is a dire moment for the future of the American republic, we can at least rest assured that we aren’t living through 1857 or 1860 or 1861. Santayana notwithstanding, history does not actually repeat itself. But this Supreme Court — the Roberts court — is playing its own version of the dangerous game that brought the Taney court to ruin. It is acting as if the public must obey its dictates. It is acting as if its legitimacy is incidental to its power. It is acting as if it cannot be touched or brought to heel.

The Supreme Court is making a bet, in other words, that it is truly unaccountable.

 

More on the Supreme Court:


Opinion | Jesse Wegman
The Crisis in Teaching Constitutional Law
Feb. 26, 2024


Opinion | Jody Freeman and Andrew Mergen
Will the Supreme Court Show a Little Humility?
Jan. 18, 2024


Opinion | Nora Donnelly and Ethan Leib
The Supreme Court Is Not as Politicized as You May Think
Oct. 8, 2023


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ABOUT THE AUTHOR:


Jamelle Bouie became a New York Times Opinion columnist in 2019. Before that he was the chief political correspondent for Slate magazine. He is based in Charlottesville, Va., and Washington. @jbouie A version of this article appears in print on March 24, 2024, Section SR, Page 3 of the New York edition with the headline: The Supreme Court Is Playing a Dangerous Game. Order Reprints | Today’s Paper 

 

 

"WHAT'S PAST IS PROLOGUE..." 

https://www.thenation.com/article/society/supreme-court-dangerous/

• Politics
• Feature

The Long, Troubled History of the Supreme Court—and How We Can Change It

It’s time to admit that the nation’s highest court has been a source of harm more often than it’s been a force for justice.

by Louis Michael Seidman
June 20, 2022
The Nation

[This article appears in the June 27/July 4, 2022 issue. ]

 

Illustration by Adrià Fruitós.

By now, it should be abundantly clear that our antiquated Constitution, written over two centuries ago by white men to govern a small, slave-dependent republic huddled along the Eastern Seaboard, does not meet the needs of the sprawling, multiethnic, and complicated country that we have become.

This article has been adapted from From Parchment to Dust: The Case for Constitutional Skepticism, by Louis Michael Seidman (The New Press). Copyright 2021. Reprinted here with permission.

For anyone who doubts this proposition, consider the following facts. In two out of the last six presidential elections, a candidate became president even though he lost the popular vote. Virtually all of the money and attention in presidential elections are devoted to a tiny number of swing states that determine the outcome. The Constitution vests in state legislatures the power to appoint presidential electors whether or not they are chosen by a popular majority—a power that Donald Trump tried to take advantage of in 2020, and may well take advantage of in 2024.

Additionally, nine individuals, appointed for life and responsible to no one, regularly make crucial and unreviewable decisions about matters such as the structure of health care in the United States, the nature of marriage, the right of women to reproductive justice, and the powers of the federal government and the states. All the justices on the Supreme Court insist that they are neutral and apolitical public servants who do no more than follow “the law” as it is written. Yet they are nominated by a process drenched in raw partisanship, and their votes regularly align with the partisan views of the people who appoint them. Republican presidents have appointed 15 of the last 22 justices to the Supreme Court, even though they won the popular vote in only five of the last 15 elections. The last Democrat to serve as chief justice was Fred Vinson, whose brief and largely undistinguished career ended almost 70 years ago.

The Constitution protects the rights of people who want to make movies catering to individuals who get sexual pleasure from witnessing the sadistic crushing of innocent animals. Yet it doesn’t explicitly protect the rights of women, and it does nothing to protect the rights of all of us to live in a world that is not ravaged by global warming.

Huge popular majorities favor measures including more effective gun regulation, limitations on campaign spending, and reductions to the cost of prescription drugs, yet because of the political structures that the framers imposed on us, we are unable to accomplish those objectives.

These facts, and many more like them, should make any sensible person skeptical about our Constitution and about the role it plays in modern political culture. And yet constitutional skeptics almost never get a fair hearing. Instead, American politics is saturated by reverence for an ancient and anachronistic document, written by people who in many cases owned other human beings, and never endorsed by a majority of the inhabitants of our country.

Liberals and conservatives, Democrats and Republicans, Congress members and Supreme Court justices, all insist on their own partisan versions of constitutional obedience while our political culture collapses, crucial public needs go unmet, and the ties that bind us together as a country fray. We need to understand that conventional constitutionalism is irrational and wrong. It attaches religious significance to a decidedly secular and deeply flawed document. It is standing in the way of saving our country. It has got to stop.

Perhaps the most inviting target for constitutional skepticism is the United States Supreme Court. There is no necessary association between the Supreme Court and American constitutionalism. All federal officeholders take an oath to support and defend the Constitution, and one could imagine a system in which the Constitution was enforced by Congress, the president, and state officials. Still, in American constitutional culture, the Supreme Court has assumed such a central role that it is often taken to be the embodiment of constitutionalism.

The justices themselves do everything they can to promote this image. They protect their reputation by working in secret. According to hallowed tradition, no one other than the justices attends the sessions where cases are actually decided. The justices rarely hold press conferences or make public statements. Moreover, the quasi-religious claptrap that surrounds the court—the robes the justices wear, the marble temple in which they are housed, the solemnity and formality of the oral arguments that they conduct—is meant to symbolize the grandeur, neutrality, impersonality, and majesty of the law, and of the Constitution whence it derives.

An interlocking web of myths buttresses this imagery. The justices are thought to be brilliant jurists who work extraordinarily hard. They are wise women and men who take the long view and are above the petty squabbling that engulfs the rest of the government. They are apolitical public servants who lead monastic existences devoted solely to the rule of law. Their independence guarantees that they are answerable to no political party or faction, but solely to their conscience and to the US Constitution.

All of this is arrant nonsense. Historically, the Supreme Court of the United States has been populated mostly by people of decidedly ordinary intellect and ability who have gotten pretty cushy jobs through their political connections. The notion that independence—insulation from political accountability—guarantees that justices will be motivated by devotion to the law rests on a logical fallacy and has little empirical support. In fact, unaccountability produces just what one would expect: a freedom to indulge personal quirks and obsessions.

Here are just a few examples of the judicial failings that should give any thoughtful court observer pause:

Marshall law: An engraved portrait of Chief Justice John Marshall (1755–1835) from the early 1800s. (Stock Montage / Getty Images)

§ In the early 19th century, John Marshall saw no problem with serving as secretary of state and chief justice of the United States at the same time. In perhaps the most famous case in American legal history, Marbury v. Madison, Marshall as chief justice ruled on the legal implications of actions taken by Marshall as secretary of state.

§ Also during the 19th century, Justice Henry Baldwin was hospitalized for “incurable lunacy” and missed an entire term of the court. He nonetheless returned to the bench and remained on the court for years. Richard Peters Jr., the Supreme Court’s reporter of decisions, stated that “most courtroom observers of Baldwin agreed that ‘his mind is out of order.'”

§ Justice Robert Grier, who had suffered a disabling stroke, cast the deciding vote in one of the most crucial decisions in American history, holding that Congress lacked the power to make paper money legal tender. Unfortunately, it appears that he acted without having any clear idea of what case he was voting on.

§ Justice James McReynolds was a notorious racist and anti-Semite. He was unremittingly hostile to his colleague Louis Brandeis because Brandeis was a Jew. When Charles Hamilton Houston, the renowned African American civil rights attorney, argued before the court in 1938, McReynolds turned his back on him. He also referred to Howard University as the “[n——] university.”

§ Justice Charles Whittaker was often unable to decide how to vote or to keep up with his work. Once, when assigned to write a majority opinion, he ended up turning the task over to Justice William O. Douglas, who, out of pity, ghostwrote it for him even though Douglas had also written the dissenting opinion.

Hooded justice: Supreme Court Justice Hugo L. Black acknowledges his past membership in the Ku Klux Klan in a nationwide radio broadcast on October 1, 1937. (MJS / AP Photo)

§ Shortly after he was confirmed as a justice, Hugo Black faced a huge scandal about his membership in the Ku Klux Klan. Reporters for the Pittsburgh Post-Gazette discovered that although he had officially resigned from the Klan at the beginning of his campaign for the US Senate, Black rejoined the organization and was given a lifetime membership.

§ After becoming an associate justice, Abe Fortas regularly provided advice to his former client, President Lyndon Johnson, even though the Johnson administration was often a party before the court. Fortas was forced to resign when it became known that he had accepted payments from various interests with potential business before the court.

§ While serving as a law clerk for Justice Robert Jackson, William Rehnquist prepared a memorandum arguing that the court should reaffirm the “separate but equal” doctrine announced in Plessy v. Ferguson. When confronted with the memo at his confirmation hearing, Rehnquist swore under oath that, contrary to what the memo in fact said and despite persuasive evidence from contemporaries, it did not reflect his personal views.

§ During oral argument in an employment discrimination case, Chief Justice Warren Burger announced that women were better at secretarial work than men were. He reportedly told his law clerks that Blacks made talented gardeners because they had a great sense of color, but that they could not get mortgages the way Jews did because Jews were generally more able and trustworthy. Women should not be allowed to serve as judges in rape trials, he added, because they were too emotional and incapable of fair judgment.

There are enough examples of this sort of behavior to be troubling. (And this is without touching on the misconduct of modern justices—for example, Brett Kavanaugh’s bizarre and likely perjurous testimony before the Senate Judiciary Committee, or Clarence Thomas’s blatantly partisan extrajudicial diatribes.) Moreover, the secrecy that surrounds the court means that we have no way to know how many other instances of incompetence, misconduct, or florid eccentricity have influenced the court’s work. Still, I do not mean to claim that these examples are representative. No doubt most justices have done their best at what is a difficult job.

More on the Supreme Court

Affirmative Action: Perfectly Fine for West Point and Annapolis—but Not Harvard

Peter Dreier

In some ways, the more serious problem is not flagrant incompetence or mendacity but plain-vanilla mediocrity. For every Louis Brandeis, there are many Sherman Mintons. For every William Brennan, there are many Gabriel Duvalls. The truth is that most of the justices have gained their seats because of inside connections, political deals, or ideological commitments. Their performance on the bench is consistent with what one would expect from individuals selected on this basis.

If one looks at paper credentials, the modern court scores higher than the historical average. All of today’s justices have distinguished academic records, and there is no reason to doubt their intelligence. That said, their range of experience is limited. None of the justices has had to meet a payroll for a private business or make decisions outside of a huge bureaucracy. None has run for or served in elective office. Although the Supreme Court hears many criminal cases every year, no sitting justice has ever served as a criminal defense attorney, although this will change when Ketanji Brown Jackson joins. The court regularly decides technical and complex cases about specialized matters like patent law and employee benefits law, but no sitting justice has devoted significant time to studying these matters. The court’s opinions routinely rely on empirical assumptions, but the justices appear woefully ignorant of statistical method. There is little evidence that many of them know much about the social sciences, much less about philosophy, literature, or the hard sciences.

Perhaps more significantly, no one should confuse the justices with apolitical and neutral students of jurisprudence. Many of them got their jobs because they were connected to politically powerful figures. Consider in this respect Justice Antonin Scalia’s unintentionally damning defense of his failure to recuse himself from a case in which Vice President Dick Cheney was a named party after Scalia had gone duck hunting with him:

Many Justices have reached this Court precisely because they were friends of the incumbent President or other senior officials—and from the earliest days down to modern times Justices have had close personal relationships with the President and other officers of the Executive. John Quincy Adams hosted dinner parties featuring such luminaries as Chief Justice Marshall, Justices Johnson, Story, and Todd…. Justice Harlan and his wife often “stopped in” at the White House to see the Hayes family and pass a Sunday evening in a small group, visiting and singing hymns. Justice Stone tossed around a medicine ball with members of the Hoover administration mornings outside the White House. Justice Douglas was a regular at President Franklin Roosevelt’s poker parties; Chief Justice Vinson played poker with President Truman.

Modern justices have also been cozy with political figures, and their prior service has established deep ties of personal and political loyalty. Here are some examples:

§ In his younger years, Chief Justice John Roberts served as associate White House counsel for Ronald Reagan and as the principal deputy in the Solicitor General’s Office for George H.W. Bush.

§ Justice Samuel Alito worked as assistant solicitor general and at the Office of Legal Counsel under Reagan.

§ Justice Stephen Breyer worked in the Johnson Justice Department and was special counsel to the Senate Judiciary Committee while it was under Democratic control.

§ Justice Elena Kagan befriended Barack Obama while they were both teaching at the University of Chicago Law School. She went on to serve as special counsel to the Senate Judiciary Committee under Joe Biden, as associate White House counsel and deputy assistant to the president for domestic policy under Bill Clinton, and as solicitor general under Obama.

§ Justice Kavanaugh drafted the Starr Report, which claimed that Clinton had committed potentially impeachable offenses; worked for the George W. Bush campaign on the Florida recount in 2000; and served as Bush’s staff secretary in the White House.

There is nothing dishonorable about service in any of these positions. Still, it strains credulity to believe that the justices suddenly shed their political predispositions upon assuming the bench.

None of this would matter much but for the fact that the justices exercise extraordinary power—and throughout the court’s history, they have used this power to render many, many truly terrible decisions. This is not the place for a comprehensive history of the Supreme Court, but some highlights from that history convey a sense of the role that the court has played in our political and legal culture.

In the earliest days of the republic, Federalist judges, including Supreme Court justices, vigorously enforced the Alien and Sedition Acts, which criminalized criticism of the president and resulted in the jailing of opposition leaders throughout the country.

Historic injustice: An engraving of Dred Scott, the plaintiff in the infamous 1857 Supreme Court case that denied citizenship to African Americans.

In the run-up to the Civil War, the court consistently sided with slave owners. For example, in Prigg v. Pennsylvania, Justice Joseph Story, writing for the court, held that a Pennsylvania law that prohibited the extradition of African Americans for the purpose of enslaving them was unconstitutional. In the Dred Scott decision, Chief Justice Roger Taney, writing for the court, held that even free African Americans could not be citizens of the United States and that Congress’s efforts to outlaw slavery in the territories were unconstitutional.

After the Civil War, Congress enacted Reconstruction legislation that amounted to a comprehensive program to eradicate the “badges and incidents of slavery” and to protect the newly freed men and women from violence and discrimination. Fearful of judicial interference, the Reconstruction Congress enacted the 14th Amendment to insulate its program from constitutional attack. Unfortunately, the court read the amendment in an indefensibly narrow fashion and proceeded to invalidate much of the Reconstruction program.

When political pressure on the South eased, Southern states enacted a comprehensive system of racial apartheid. In Plessy v. Ferguson, the court, in an infamous opinion by Justice Henry Billings Brown, found that this “separate but equal” regime was constitutionally permissible.

Wronged by the court: Carrie Buck, plaintiff in Buck v. Bell (1927), in which the Supreme Court approved a vast forced sterilization program.

The court did no better at enforcing civil liberties during this period. Throughout the 19th century, it regularly ignored infringements on speech and free exercise rights. In an especially shameful decision, the court gave its approval to a massive eugenics program that resulted in the forced sterilization of thousands of women.

With American entry into World War I, the Wilson administration embarked on a vigorous program to suppress dissent, utilizing the Espionage Act of 1917 and Sedition Act of 1918 to jail many opponents of the war. The court upheld these convictions in every case that came before it, including the conviction of the Socialist Party leader Eugene Debs, who received millions of votes for president while sitting in a jail cell.

In the late 19th and early 20th centuries, populism and progressivism emerged as an important political force, and state governments began to enact various forms of economic regulation. For example, state statutes mandated minimum wages and maximum hours; prohibited “yellow dog contracts,” which prevented workers from forming unions; and provided for the price regulation of public utilities. The Supreme Court’s response to these reforms was uncertain and inconsistent but, in general, hostile.

In 1905, for instance, the Supreme Court decided Lochner v. New York. According to the court, a state statute protecting employees of bakery shops from having to work more than 10 hours per day and 60 hours per week violated the “freedom of contract” protected by the 14th Amendment’s due process clause. And Lochner was hardly an outlier. In all, between 1905 and 1930, the court invalidated some 200 statutes imposing economic regulation.

Concern about the court’s ideological motivations came to a head during the New Deal period, when the court blocked some important New Deal programs and threatened to invalidate many more. After his overwhelming victory in 1936, President Franklin Roosevelt moved to discipline the court by increasing its size from nine to 15 justices. Congress ultimately rejected the proposal, but the court more or less backed off from confrontation with a popular president. Roosevelt remained in office long enough to appoint eight justices, and these appointments inaugurated a period during which the court abstained from interfering with economic regulation.

At the same time, the Roosevelt Court’s defense of civil liberties was, at best, spotty. The court occasionally defended the rights of unpopular speakers, but in moments when civil liberties were at greatest risk, it refused to intervene. After the Japanese attack on Pearl Harbor, the Roosevelt administration ordered the exclusion of thousands of Japanese American citizens from their homes. The Supreme Court held that the action was constitutionally permissible, even though the exclusion was based solely on ethnicity and the excluded individuals were given no opportunity to demonstrate their loyalty.

When the McCarthy panic hit the country in the postwar period, the liberal justices again caved to public pressure. They acceded to the criminal convictions and firings of scores of people because of their political affiliations.

Rogue’s gallery: People protest the leaked draft of the Supreme Court’s abortion ruling in New York City. (Bryan R. Smith / AFP via Getty Images)

Due to a series of historical accidents, by the late 1950s power on the court had shifted to justices who viewed themselves as legal reformers. During the brief heyday of the Warren Court, the justices acted vigorously to dismantle racial apartheid in the South, reform the criminal justice system, protect the free speech rights of dissenters, require equality of population in voting districts, and provide some constitutional protection for poverty-stricken Americans. Even after Chief Justice Earl Warren had retired and a conservative president had somewhat changed the complexion of the court, it rendered pathbreaking decisions protecting reproductive autonomy and attacking gender discrimination.

A half-century later, the Warren Court’s hold on the American imagination remains strong. For many conservatives, the Warren Court remains an exemplar of arrogant and lawless judicial overreach. Its more important impact, though, has been on the attitude of many progressives. Anyone looking at the entire sweep of the court’s history would understand that the court has pretty consistently stood with the most shortsighted and venal impulses in American society. Still, the Warren Court interregnum supports the hope that if only the right justices could somehow be appointed, the Supreme Court might yet be an engine driving us toward the Preamble’s promise that we “establish justice.” That hope, in turn, softens the criticism that many progressives might otherwise direct toward the court.

 

In evaluating this hope, it is important to emphasize two points about the Warren Court. First, this judicial Camelot did not last very long—effectively only 10 years. Second, for all its ambition, the Warren Court’s actual accomplishments were limited and fragile. Dismantling the Jim Crow system was an important achievement, but as many scholars have pointed out, the court’s orders were widely ignored. Real change did not come until Lyndon Johnson’s huge victory in the 1964 election and the breaking of the Southern stranglehold on Congress.

Many other Warren Court reforms were similarly vexed. The court addressed some of the worst manifestations of police violence and lawlessness, but it also invented the concept of “qualified immunity” for government officials who violated civil rights, thereby shielding them from meaningful legal accountability. It was Chief Justice Warren himself who wrote for the court in Terry v. Ohio to endorse the “stop and frisk” tactics that resulted in the systematic harassment of millions of Black men.

The Supreme Court’s history is important and often misunderstood, but the crucial question to answer is how the court operates now and how it is likely to operate in the immediate future. Unfortunately, whatever our experience during the Warren Court era, the modern Supreme Court has returned to its historical role as the defender of class privilege, racial hierarchy, and misogyny. From the invalidation of campaign finance legislation, to the hobbling of efforts to control climate change, to the recent threat to abortion rights, the justices have allied themselves with the most reactionary forces in American life.

More on the Supreme Court

The Supreme Court Is Broken. How Do We Fix It?

Ryan Doerfler and Elie Mystal

If We Don’t Reform the Supreme Court, Nothing Else Will Matter

Elie Mystal

So what is to be done? In the wake of the Senate’s unprecedented refusal to consider President Obama’s nomination of Merrick Garland to the court and the debacle surrounding the nomination of Brett Kavanaugh, academics and political figures have proposed a variety of reforms. The simplest to implement would be an expansion of the court’s size. The Constitution does not require that there be only nine justices, and the court’s size has varied throughout our history. A variant of this proposal would allow the court’s size to fluctuate so as to allow each administration a set number of appointments.

Other, more complex proposals would change the court’s functioning in dramatic ways. For example, the political analyst Norman Ornstein has proposed 18-year term limits for Supreme Court justices, with a justice then relegated to service on the lower courts so as not to run afoul of the constitutional guarantee of life tenure. Former presidential candidate Pete Buttigieg has borrowed from a far-reaching proposal advanced by law professors Daniel Epps and Ganesh Sitaraman. Under this scheme, there would be 15 justices, with 10 equally divided between the two parties and those 10 choosing the remaining five.

Here are some other proposals that the Supreme Court itself could adopt in the unlikely event that it were so inclined:

§ Ditch the robes and the “Your Honors.” Supreme Court justices are not gods or priests; they are ordinary human beings. In a country without an aristocracy, respect should never be based on station. Instead, it must be earned and is always held provisionally. The justices should act, and should be treated, like every other citizen.

§ Require a seven-justice majority to invalidate a statute. Nothing in the Constitution mandates majority voting by the justices; indeed, by internal rule, the court has deviated from majority voting in deciding whether to grant review over cases. More than 100 years ago, the famed Harvard Law School professor James Bradley Thayer wrote that a statute should be invalidated only when its unconstitutionality was “so clear that it is not open to rational question.” A way to institutionalize Thayer’s insight is to require at least a seven-justice majority to invalidate a statute. If three justices think that the statute is constitutional, it is hard to say that their judgment is “irrational.” Why, then, should the judgment of six justices prevail over the collective judgment of three of their colleagues and the political branches?

§ Media coverage. For years, there has been argument about whether the Supreme Court’s oral arguments should be broadcast live on television. The court seems to be moving haltingly in this direction, but this change does not go nearly far enough. Secrecy surrounding the court’s operations has produced sloppiness and misconduct that would never be tolerated if subjected to the disinfectant of sunlight. The Supreme Court’s conferences should be offered for live broadcast. I know, I know—how are the justices supposed to be candid with each other if every word they speak is made public? But, for goodness’ sake, these folks have life tenure. What is this protection for, if not to allow them to say what they think without worrying about retribution? If the justices in fact feel a little pressure to think more carefully about what they say in conference, this would be a good result rather than a bad one.

§ Draft opinions. The court should release draft opinions for public comment before they are finalized. Why not? Administrative agencies have functioned this way for years. Congress does not usually keep important legislation secret until it becomes law, and when it tries to do so, it is subject to harsh criticism. It is terrifying that the court produces major legal documents in final form without giving interested parties the opportunity to point out errors and suggest revisions.

§ Reverse oral arguments. After the draft is made public, the court should conduct reverse oral argument, whereby lawyers for each side can question the justices about the opinion. Why is it only the justices who get to ask the questions? A reverse oral argument, with the advocates posing the hypotheticals and testing limits, might uncover unintended consequences or flabby argumentation. Moreover, forcing the justices to defend their opinions is bound to provide more incentive to think carefully about what they are doing.

Will the Supreme Court adopt these reforms on its own? Don’t bet on it. We face a classic chicken-and-egg problem: The justices have power, and their power rests on mystification. We can hardly expect the beneficiaries of this system to dismantle it voluntarily. It does not follow, though, that debate about these proposals is pointless. The necessary first step toward forcing the court to give up its power is to delegitimize the court in the eyes of the public. And the first step in accomplishing that objective is asking why, exactly, the justices are so terrified of reforms that would end the pervasive mystification that encases the court’s work. Even considering proposals like these punctures the pomp, pretension, and grandiosity that supports the court’s power.

More than that, thinking about these proposals reveals the sheer ridiculousness of the court. Yes, we need to advance reasoned arguments for why this institution is harming the country. But more than just argument is required. The court should be the object of derision, mockery, and contempt. We need to start making fun of the pomposity and pretensions of the justices.

If we can bring ourselves to see through its pomposity and pretensions, perhaps the Supreme Court will lose its power over us. Once it does, the American people can begin the serious work of debating what it would take to establish justice—work that cannot and should not be delegated to an arrogant elite in robes.

White Supremacy as Immigration Policy, and the insidious governmental abuse of migrant families and their children under the deadly regime of Donald Trump

https://www.nbcnews.com/…/trump-admin-weighed-targeting-mig…

Trump administration weighed targeting migrant families, speeding up deportation of children

A draft plan obtained by NBC News also shows officials wanted to specifically target parents in migrant families for increased prosecutions.

 

PHOTO: Migrant Family Border. A mother and her two children walk across the Suchiate river bridge as Central American migrants cross the border between Guatemala and Mexico, near Ciudad Hidalgo, Chiapas State, Mexico, on Jan. 17, 2019.Marco Ugarte / AP

by Julia Ainsley
January 19, 2019
NBC News

WASHINGTON — Trump administration officials weighed speeding up the deportation of migrant children by denying them their legal right to asylum hearings after separating them from their parents, according to comments on a late 2017 draft of what became the administration's family separation policy obtained by NBC News.

The draft also shows officials wanted to specifically target parents in migrant families for increased prosecutions, contradicting the administration's previous statements. In June, Department of Homeland Security Secretary Kirstjen Nielsen said the administration did "not have a policy of separating families at the border" but was simply enforcing existing law.

The authors noted that the "increase in prosecutions would be reported by the media and it would have a substantial deterrent effect."

Click here to read the draft and comments

The draft plan was provided to NBC News by the office of Sen. Jeff Merkley, D.-Ore., which says it was leaked by a government whistleblower.

Exclusive: Whistleblower exposes Trump's harsh policy on migrants.  VIDEO:  06:58

In the draft memo, called "Policy Options to Respond to Border Surge of Illegal Immigration" and dated Dec. 16, 2017, officials from the Departments of Justice and Homeland Security lay out a blueprint of options, some of which were later implemented and others that have not yet been put into effect.

At the time, the number of undocumented immigrants seeking to cross the southern border was near historic monthly lows: 40,519 in December 2017, compared to 58,379 the same month the year prior.

The document was circulated between high level officials at DHS and the Justice Department, at least one of whom was instrumental in writing the first iteration of the administration's travel ban.

The plan, and the comments written in the margins, provide a window into the policy discussion thinking at the time, how far officials were willing to go to deter families seeking asylum and what they may still be considering.

VIDEO: Thousands of migrant children separated from parents prior to 'zero tolerance' policy. Jan. 17, 2019 

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In one comment, the Justice Department official suggests that Customs and Border Protection could see that children who have been separated from their parents would be denied an asylum hearing before an immigration judge, which is typically awarded to children who arrive at the border alone.

Instead, the entire family would be given an order of "expedited removal" and then separated, placing the child in the care of HHS in U.S. Marshall's custody while both await deportation.

"If CBP issues an ER [expedited removal] for the entire family unit, places the parents in the custody of the U.S. Marshal, and then places the minors with HHS, it would seem that DHS could work with HHS to actually repatriate [deport] the minors then," the official wrote.

"It would take coordination with the home countries, of course, but that doesn't seem like too much of a cost to pay compared to the status quo."

It is unclear from the official's comment whether the government planned on reunifying children with their parents before they were deported.

"It appears that they wanted to have it both ways — to separate children from their parents but deny them the full protections generally awarded to unaccompanied children," said Lee Gelernt, a lawyer for the American Civil Liberties Union who led the class action suit on behalf of migrant parents who had been separated from their children.

A DHS official told NBC News on the condition of anonymity because the department does not comment on pre-decisional documents that the draft's authors' intent was to enable agencies to reunify families after they were separated for prosecution.

But the draft and comments do not mention plans to reunify.

The Inspector General for Health and Human Services released a report on Thursday that said "thousands" of children were separated under the Trump administration during an influx in separations that began in the summer of 2017, before the zero tolerance policy. Whether those children were reunited with their parents is unknown, the report said.

Thousands more migrant kids separated from parents under Trump than previously reported

The Department of Homeland Security disputed the "thousands" reported by the HHS Inspector General, claiming the inspector general did not have evidence to back up the claim. According to DHS statistics, in fiscal year 2017, the border patrol separated 1,065, 46 due to fraud and 1,109 due to medical or security concerns.

The December 2017 draft memo states that Customs and Border Protection is "currently executing the [separation policy] on a limited basis in the El Paso sector."

In a statement, DHS Spokeswoman Katie Waldman said, "The Trump administration has made clear that all legal options are on the table to enforce the rule of law, rein in mass unchecked illegal immigration, and defend our borders. In December of 2017, we saw the number of apprehensions increasing as a result of the Flores Settlement Agreement, the Trafficking Victims Protection Act, and a lack of physical barrier on the Southern Border."

"In part we were predicting — and trying to prevent — the exact humanitarian and security crisis we are confronted by now," said Waldman. "It would be malpractice to not seriously examine every single avenue to gain operational control of the border and ensure that those who are entering our country have a legal right to be here."

The Justice Department referred questions to DHS.
Officials were aware of potential backlog of children

When the administration began separating immigrant families under the "zero tolerance" policy in May 2018, it held children in the custody of HHS until they could be placed with a sponsor to await an asylum hearing. Zero tolerance never placed children in expedited removal or included systematically deporting them without their parents. Trump reversed the policy in an executive order on June 20, 2018.

One policy that was discussed but not implemented from the draft memo included limiting protections for migrant children who were victims of abuse or neglect.

The draft's authors suggested targeting "potential abuses" in the Special Immigrant Juveniles program, which provides green cards for immigrant children who have been abused, abandoned or neglected by a parent. The Justice Department official notes in a comment that children who have been abused by one parent are often living with the other parent when they qualify and that DHS Secretary Nielsen could refuse to award green cards in such cases.

VIDEO:  Trump blames Democrats for migrant children's deaths  Dec. 30, 2018 02:08

It is not clear whether the administration rejected the idea of targeting children in the Special Immigrant Juveniles Program or whether the idea is still under consideration.

Other policies discussed in the draft, however, did materialize. For example, HHS adopted a policy that would require anyone in a household who agreed to sponsor an unaccompanied migrant child to undergo an extensive background check. Publicly, DHS and HHS said that this was to ensure the safety of children. But the draft shows administrators knew the potential for creating a backlog of children in migrant detention, which later became reality and led to the creation of the Tornillo tent city last year.

"There would be a short term impact on HHS where sponsors may not take custody of their children in HHS facilities, requiring HHS to keep the UACs [unaccompanied children] in custody longer," the draft said.

The official commenting in the margins of the draft noted, "I would suggest referring sponsors for criminal prosecution under 1324 if information indicates the sponsor facilitated the travel of the minor into the United States."

PHOTO: The U.S.-Mexico border fence from Playas de Tijuana on Jan. 11, 2019.

The U.S.-Mexico border fence from Playas de Tijuana on Jan. 11, 2019.Guillermo Arias / AFP - Getty Images

The Justice Department has increased its criminal prosecutions of child smugglers under the Trump administration, but it does not prosecute every parent who has paid for their child to be brought to the United States.

Also, the draft outlined the administration's plan to keep asylum seekers in Mexico. Officials from the administration are currently in negotiations with Mexico to finalize such a deal, forcing all asylum seekers to wait in Mexico until a judge could adjudicate their claims, which could take months or even years due to a backlog in the courts.

"There are litigation risks associated with this proposal, as it would implicate refugee treaties and international law," the draft said. In public testimony, Nielsen has told Congress that the policy is legal.

The officials also weighed "mandatory detention" of asylum seekers "for the duration of the adjudication of their asylum claims."

Releasing immigrants on bond while they wait months or years to see an asylum judge is an issue that has plagued both the Obama and Trump administrations. However, under the 1997 Flores court agreement, ICE is prohibited from holding children in detention for longer than 20 days. In September 2018, the administration announced that it was seeking to overturn the Flores agreement, but the policy has yet to go into effect. ICE is also limited in space to hold all immigrants awaiting asylum hearings.

ABOUT THE AUTHOR:

Julia Ainsley is a national security reporter for NBC News.

The Criminally Coercive Separation of migrant children from their parents as deadly white supremacist and neofascist government policy toward immigrant families under Donald Trump

https://www.nytimes.com/…/family-separation-trump-administr…

Family Separation May Have Hit Thousands More Migrant Children Than Reported

by Miriam Jordan
January 17, 2019
New York Times

 

PHOTO: Brenda Garcia reunited with her 7-year-old son, K.G.G., at Dulles Airport outside Washington in June, 34 days after they were separated by officials after crossing the border into the United States illegally. Credit: Ryan Christopher Jones for The New York Times

 

HOUSTON — The Trump administration most likely separated thousands more children from their parents at the Southern border than was previously believed, according to a report by government inspectors released on Thursday.

The federal government has reported that nearly 3,000 children were forcibly separated from their parents under last year’s “zero tolerance” immigration policy, under which nearly all adults entering the country illegally were prosecuted, and any children accompanying them were put into shelters or foster care.

But even before the administration officially unveiled the zero-tolerance policy in the spring of 2018, staff of the United States Department of Health and Human Services, the agency that oversees the care of children in federal custody, had noted a “sharp increase” in the number of children separated from a parent or guardian, according to the report from the agency’s Office of Inspector General.

As of December, the department had identified 2,737 children who were separated from their parents under the policy and required to be reunified by a federal court order issued in June 2018.

But that number does not represent the full scope of family separations. Thousands of children may have been separated during an influx that began in 2017, before the accounting required by the court, the report said.

Thus, the total number of children separated from a parent or guardian by immigration authorities is “unknown,” because of the lack of a coordinated formal tracking system between the Office of Refugee Resettlement, the arm of Health and Human Services that takes in the children, and the Department of Homeland Security, which separated them from their parents.

“This report confirms what we suspected: This cruel family separation practice was way bigger than the administration let on,” said Lee Gelernt, who challenged the policy in court on behalf of the American Civil Liberties Union. “We will be back in court and ask the judge to order the government to explain these numbers,” he said.

The family separations were a key part of the Trump administration’s effort to deter migrant families from trying to enter the country at the Southwest border, where they have been arriving in large numbers, most of them fleeing violence and deep poverty in Central America.

While the policy was framed as a decision to prosecute those who entered the United States illegally, it resulted in thousands of migrant parents spending months in agonized uncertainty, unable to communicate with their children and in many cases not knowing even where the children were.

Infants and toddlers were among the children who were put into foster homes or migrant children shelters, often hundreds or thousands of miles away from where their parents were detained. Under separate policies, the administration also made it difficult for relatives other than the children’s parents to take the children into their own homes.

After a review of internal government tallies, The New York Times found last year that more than 700 migrant children had been separated from their families in the months before the government officially announced the zero-tolerance policy.

On June 26, 2018, a federal judge in San Diego, in response to the A.C.L.U. lawsuit, directed the federal government to halt the separations at the border and to reunite children with their parents. President Trump rescinded the policy that same month.

However, the federal inspectors found that separations have continued to occur: As of November, the report found, Health and Human Services had received at least 118 children who had been separated from their families since the court order.

Officials at the Department of Homeland Security, which oversaw the family separations at the border, have said they have separated families only when necessary, such as when a parent is facing a serious criminal prosecution, or when authorities have reason to believe that the adult accompanying the child is not an appropriate guardian.

“The report vindicates what D.H.S. has long been saying,” said Katie Waldman, a spokeswoman for the department. “For more than a decade it was, and continues to be, standard for apprehended minors to be separated when the adult is not the parent or legal guardian, the child’s safety is at risk, or serious criminal activity by the adult. We are required under the law that Congress passed to send all unaccompanied alien children to H.H.S.”

Ann Maxwell, the Health and Human Services Department’s assistant inspector general for evaluation and inspections, said the separations appeared to have been occurring for a full year before the court issued its order.

“Thousands of children were separated from parents and guardians, referred to H.H.S. and released from H.H.S. care before the court order,” Ms. Maxwell said in a conference call with reporters.

“The total number is unknown,” she said. “It is certainly more than 2,737, but how many more, precisely, is unknown.” Moreover, that number may never be known: Department officials, she said, had told her office that there were “no efforts underway to identify that. It would take away resources from children already in care.”

In an email after the call, Ms. Maxwell’s spokesman confirmed that inspectors believed the number of separated children may be “thousands” more than the 2,737 reported to the court.

The inspectors provided no precise data to support that estimate, though Ms. Maxwell said that Health and Human Services had noted a “spike” in the frequency of children being separated from their families, from 0.3 percent of all apprehended families in 2016 to 3.8 percent in 2017.

Family separations have occurred for years, but they had previously been “fairly rare,” Ms. Maxwell said, occurring only in cases where there were concerns about child welfare. That changed in 2017, she said.

Ms. Maxwell said that most of the families on the list of separated families had been reunited, pursuant to the court order. But she said the figures continued to evolve, for several reasons. The absence of an integrated data system to track separated families through the two federal agencies that oversee them was one problem, she said.

Also complicating the issue, she said, was the complex problem of determining which children should be considered officially “separated” from their families. That meant that the list of families entitled to reunification was still being revised as late as December 2018, more than five months after the court order took effect.

The Department of Health and Human Services, in its official response, said it had accounted publicly for all children separated from relatives at the border and then delivered to the agency for care.

“H.H.S. faced challenges in identifying separated children,” the agency said. “The effort undertaken by H.H.S. was complex, fast-moving and resource-intensive.”

The inspector general’s report, the department said, “provides a window into the herculean work of the H.H.S. career staff to rapidly identify children in O.R.R. care who had been separated from their parents and reunify them.” O.R.R. refers to the resettlement office.

The department emphasized that the inspector general found “no evidence whatsoever” that it had lost track of children in its care. Though there were delays in linking children to parents, partly as a result of the Department of Homeland Security’s tracking system. When immigration agents separated families at the border, records that could have been used to connect parents and children were automatically deleted because the computer system had not been modified to account for separated families.

In its response on Thursday, the Department of Health and Human Services said that the inspector general’s report “corroborates what H.H.S. has said all along: H.H.S. can determine the location and status of any child in O.R.R. care at any time by accessing the case management records for the child, or the O.R.R. online portal.”

Glenn Thrush contributed reporting from Washington.

A version of this article appears in print on Jan. 17, 2019, on Page A1 of the New York edition with the headline: Many Families Split at Border Went Untallied. Order Reprints | Today’s Paper