Second Monday In October: The Legitimacy Crisis

by Michael Liss

Simply because people disagree with an opinion is not a basis for questioning the legitimacy of the court. —Chief Justice John Roberts

Justices of the Supreme Court, October 3, 1931. From The New York Public Library.

Ah, if only it were that simple. It’s not, so fasten your seatbelt because the men and women in black are back.  

First, the good news. The Court welcomed its newest member in Justice Ketanji Brown Jackson, and the rookie can play. She acquitted herself quite well in her first oral argument in Merrill v. Milligan. Justice Jackson joins Justices Kagan and Sotomayor in the “Lost Battalion” of Liberals, but there is every reason to think she can make her mark.

Now to the bad: Regrettably, it must be noted that SCOTUS is back in session, and no good can come from this. Having wreaked havoc across a broad spectrum last term, Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett are expected to continue to gorge themselves. To paraphrase Sir Edward Grey on the eve of World War I, “The lamps are going out on our rights. We shall not see them again.” Read more »

Your Rights: Disappearing

by Michael Liss

Judge [Ketanji Brown] Jackson is an extraordinary person with an extraordinary American story[,] … [as well as] impeccable credentials and a deep knowledge of the law…, but I am unable to consent to the nomination. —Senator Ben Sasse (R-NE)

At least Ben was polite about it. The rest of Judge Jackson’s hearing was absolutely awful. If you watched or read or otherwise dared approach the seething caldron of toxicity created by the law firm of Cotton, Cruz, Graham & Hawley (no fee unless a Democrat is smeared) you’ve probably had more than enough, so I’ll try to be brief before getting to more substantive matters.

 

First, as to KBJ’s chances, the jury is still out. Sasse’s fan dance means the Judiciary Committee will split 11-11, so a parliamentary maneuver will be required to move her nomination to a vote by the Senate as a whole. She just got Joe Manchin on board (leaving Sinema as the only possible Democratic holdout), and she might, maybe, get a vote or two from a Republican.

We should acknowledge that standing up and out of the latrine that Cotton & Co. just dug is a little difficult for many Republicans, even the ones who are about to retire. I mean, who could possibly say yes to a smut-peddling, criminal-coddling, CRT hugger who doesn’t even have a grasp of basic anatomy? The country should be grateful that Republicans finally were able to unearth the truth (having erroneously aided in confirming her to the federal bench twice before). Good grief. It wasn’t always like this. Read more »

Your Rights In The Rearview Mirror

by Michael Liss

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. –Alexander Hamilton, Federalist 78

It’s my oldest memory. I am three, standing harnessed between my parents, in a brand-new two-seater 1959 Jaguar convertible roadster. We are on an empty gravel road someplace in Virginia and my Dad decides to let his new baby fly. I can see In front of me the windshield and, below, a gray leather dashboard that has two things of great interest…a speedometer and a tachometer. The motor hmmmmmms as he takes the car through the forward gears, the tachometer first rising and then falling, the speed increasing. The big whitewall tires are crunching the rough road; cinders are flying; we hit 60 MPH, then 70, then 80; and I’m clapping my hands and piping out “Faster, Daddy! Faster!” My mom goes from worried to furious “Slow down, Ernie, slow down!” As he passes 90, I look down for a moment and she’s slapping her yellow shorts. I peek at the rearview mirror and see a huge cloud of dust. 95, 100, and finally 105. Then without warning, and without using the brakes, he starts to slow, gradually downshifting; the speedometer and tachometer fall; and that’s where my memory ends.

I have been thinking about writing a Supreme Court piece since the conservative bloc’s muscle-flexing on Texas’s SB-8 abortion law, and, each time I do, the memory of that beautiful sportscar flying down the road keeps gnawing at me. The thrill of it, the uncertainty, the obvious danger. My Dad’s going through whatever decision-making process he did to start, continue, and end.

We’ve got a new Sheriff in town, a new driver for that beautiful car. Justices Thomas, Alito, Kavanaugh, Gorsuch and Barrett are taking the wheel and the throttle. Just where is their ultra-conservative vision taking us, and at what cost? Read more »

SCOTUS Says No To Politics

by Michael Liss

The Supreme Court doesn’t play politics.

In what was destined to be an inevitable ruling, by an inevitable 5-4 vote, inevitably written by Chief Justice John Roberts, the Supreme Court decided, in Rucho v. Common Cause, that it couldn’t decide how much “partisan” gerrymandering was too much partisan gerrymandering. So it wouldn’t. Case closed.

Rucho is an extraordinary decision, with the potential, over the next 10 years, to change fundamentally the way we experience democracy. That may seem to be a radical statement, but it is absolutely true: Political parties now have a virtually free hand, once they obtain control over a state government, to redistrict as they see fit in order to retain that control. The Supreme Court is not completely out of the game—Roberts did acknowledge that they might still review gerrymandering based on race, or on “one-person, one-vote” grounds, but, by order of the Chief Justice, the Courts will be closed for a permanent federal holiday if the gerrymandering was done for the purpose of political gain.

This is an earthquake, which will, no doubt, lead to a further arms race between the parties. As Republicans control more states (Kyle Kondik, writing for Larry Sabato’s Crystal Ball, cites research indicating that Republicans control redistricting for 179 Congressional Districts, Democrats only 49), the advantage will be theirs. Many critics on the Left are suggesting that the conservative majority on the Court chose this path for precisely this reason. I prefer not to be cynical. Rather, I just want to point out the obvious: The real losers will be the center of the electorate; mainstream, moderate voters who find their concerns completely ignored because the more “safe seats” there are, the more influence primary voters (who tend to be far more doctrinaire) will have. This will inevitably lead to more radicalized government answerable to fewer and fewer people, and even more alienation. Read more »