Supreme Court a Tool for the Wealthy Since 1785 & How to Fix It, with Important Implications for the Great US Divide

We use two articles from The Nation and a piece from Heather Cox Richardson to examine how for 250 years the Supreme Court has served the 1% & how this perversion of democracy can be fixed, plus updates from Georgia & NM Legislature.

After a couple brief announcements, we dive into what I think is a most important piece, an examination of the historic role of the Supreme Court as the defender of the rights of the elite and a strategy for addressing the problem, a strategy that could have implications for a much broader healing in the US. Read on.

Georgia On My Mind: Good News on the Polling Front

In just one week, there has been a gentle shift in polling in Georgia. The Insider Advantage, a B- rated poll, published poll results showing Rev. Warnock now leading Loeffler by 1% and Ossoff now tied with Perdue. On Nov 11, polls had Loeffler up by 1% and Perdue up by 4%. The poll source on the 11th was Remington Research, a C- rated poll, so the results from the 17th from a more highly regarded source are promising. We’ll keep you posted.

Today’s post lays out just how badly we’ve been served by the US Supreme Court, not just now, but over the last 250 years and how with a Democratically controlled Senate, we can begin fixing that. But we’ve got to win both seats.

To learn more about our Georgia strategy and how to join a letter writing campaign and/or to donate to either/both candidates, click here.

2021 NM State Legislative Session Update

Since Wednesday’s blog, we have recruited ten coordinators to help organize and implement our 2021 Legislative Advocacy Strategy. We are conducting a zoom planning session today from 3:30-4:30 pm (link below) to advance that strategy. We will specifically discuss strategies to recruit more advocates; timing for when we begin reaching out to Senators; and how and when to begin communicating with Senate Leadership. We will also exchange ideas about which Districts we feel will need the most, “pushing” and whether it makes sense to have constituents of, say Sen. Ortiz y Pino join forces with a neighboring district, as Jerry will not require much, if any pushing on any of our bills.

We really hope that many of you will get involved in this effort. Numbers matter and you will not need to be a policy wonk to advocate effectively for bills you support. You do not have to support all of the bills we are supporting; you can weigh in on just those you support. We are developing tools and summaries that will make it close to effortless to participate. Even for “coordinators” the task involved is really just to call your Senator and ask for a Zoom meeting with other constituents and then manage that conversation. We will do our best to “populate” each district team with supporters. Let’s do this.

  • To review our list of bills we support, click here.
  • To review our 2021 Legislative strategy, click here.
  • To sign up for today’s Zoom to discuss that strategy and begin planning, click here.

The US Supreme Court:
Long the Servant of the Wealthy & Corporations
How We Change That

With an out of control pandemic and an out of control president, the importance of the 6-3 conservative majority to the Supreme Court has failed to attract the attention it deserves. During the last days of the campaign GOP rhetoric about “packing the court” was used to scare conservative voters who might have tired of Trump for a wide array of reasons, but who welcomed his packing the court with conservative judges. While we can’t know this, we feel many of those voters swallowed Trump’s many and obvious flaws as a leader and voted for him again, to enable him to continue to pack the court with conservatives. Biden has pledged to form a bipartisan commission to advise his administration on how to balance the court system and he has veered from statements of packing the court, just as he has run from defunding the police and banning fracking.

Three articles I reviewed this past week set aside rhetoric about the Supreme Court and the Federal court system and examined history, the Constitution and political realities to guide thinking about legislative options available to address an historic problem with how the third branch of government is comprised and how it has functioned for 250 years.

In “The Supreme Court Has Never Been on the Side of Working People: If Democrats could acknowledge it’s a political institution, they’d have a chance to harness its power” from The Nation, D.D. Guttenplan describes how the court has functioned and who it has served from day one.

From “Letters from an American: November 14” Heather Cox Richardson amplifies on how the courts and the slave era Democratic Party used the court system to maintain the political power needed to sustain slavery. Together, they put in bold relief what has always been at stake in the Supreme Court: what has value in America, who has standing in America, and whose standing is protected. Simply put, since its inception, the Supreme Court has always served the best interests of the landed, the wealthy and the corporation.

In a second article from The Nation, “There Is Only One Way Out of This Crisis: Expand the Court: Expanding the Supreme Court may not be easy, but it’s the only constitutional way to address the Republicans’ cynical theft of at least two seats” we find a proposed solution to the current crisis in the Supreme Court.

First, let’s examine how DD Guttenplan describes the US Supreme Court’s historic bias toward serving the landed and the wealthy.

“Since 1794, when Associate Justice James Wilson authorized the use of federal troops to terrorize western Pennsylvania farmers into paying a new tax on whiskey—which favored wealthy merchants and manufacturers—the court has been a reliable servant of money and power. The court that ruled in Dred Scott v. Sandford (1857) Black Americans “had no rights the white man was bound to respect” but that leaped to extend the protection of the 14th Amendment from people to corporations, that sanctioned the wholesale imprisonment of Japanese Americans during World War II, and that overturned any limit on corporate spending in elections while granting corporation owners the right to refuse to provide their employees with health coverage for birth control has hardly ever been on the side of working people. Or swift to correct its mistakes: The gap between Plessy v. Ferguson and Brown v. Board of Education kept Black Americans in a state of legalized racial oppression for over half a century.”

From The Nation: “The Supreme Court Has Never Been on the Side of Working People: If Democrats could acknowledge it’s a political institution, they’d have a chance to harness its power”

I have subscribed to The Nation for over fifty years. Founded in 1865, they have long been the conscience of the nation and a beacon for the progressive wing in this country. Guttenplan draws on this history to point out that The Nation has been writing about the Supreme Court’s fealty to the wealthy since 1884 and then goes on to cite I.F. Stone’s 1937 piece, The Court Disposes.

“I.F. Stone’s warning, in The Court Disposes (serialized in these pages), that “democracy must curb the Supreme Court or the Supreme Court, instrument of our great concentrations of economic power, will destroy democracy…The Supreme Court has been ‘packed’ for years with safe, conservative majorities. Those safe, conservative majorities have stood in the path of almost every major piece of social legislation enacted by the elected representatives of the American people.”

From The Nation: “The Supreme Court Has Never Been on the Side of Working People: If Democrats could acknowledge it’s a political institution, they’d have a chance to harness its power”

Heather Cox Richardson amplifies on this point by examining how and why the Democratic Party of the 1850s packed the Supreme Court with “originalists” who viewed the role of government to be defined proscriptively by the Constitution, an argument advanced 100 years later by Antonin Scalia and now by Amy Coney Barrett.

“In the 1850s, the Republican Party rose to stand against a small group of wealthy southern white slaveholders who had taken over the government. Those slaveholders made up only about 1% of the American South. They ran the Democratic Party, but they knew their system of human enslavement was unpopular and that they were in a political minority even in the Democratic Party. It was only a question of time until the majority began to hem in their ownership of other human beings.

From “Letters from an American: November 14” Heather Cox Richardson

When in the 1850s voters started asking their elected representatives to build the infrastructure of roads, dams, and harbors needed to support a growing economy and westward expansion, southern Democrats saw this as a threat to slavery, feeling that if government could have a say in how our economy is developed it would soon seek to regulate or even abolish slavery. From Heather Cox Richardson:

“They pushed back by insisting that the government could do nothing that was not expressly written in the Constitution. Even if the vast majority of the people in the country wanted the government to do something, it could not.

As pressure grew for government to promote economic growth for ordinary Americans, the southern slaveholders worked to cement their power. They courted poor white voters, telling them that any attempt to regulate slavery was an effort to lift Black people over them. From their stronghold in the Senate, southern leaders stopped legislation to develop the country and instead pushed laws that spread slavery into the West. When northerners objected, southern leaders packed the Supreme Court and got it to agree that Congress could not stop the spread of southern slavery even across the entire nation. But while they insisted the federal government could not promote the economy for ordinary Americans, they demanded a sweeping federal slave code to protect slavery in the West.”

From “Letters from an American: November 14” Heather Cox Richardson

There is a reason why I start each morning by reading whatever HCR has to say. She is able to place the day’s issues and events into a historical context, often in ways I had not considered for decades. HCR illustrates how the “packed” court was used as a vehicle to reinforce “originalist” legal principles to serve the 1% of slave holders in 1850, just as today a Supreme Court and Federal court system dominated by originalist philosophy has been and can continue to serve the 1% of the wealthiest Americans and a corporate world, where profit trumps the benefits of people or planet.

Guttenplan points out that while Biden may have defused Trump’s rhetoric about packing the court by calling for a bipartisan commission, Biden also asserted that we needed to “de-politicize” the court process. But the way the Supreme Court and the Federal court system are comprised, ensures their continued politicization. With just nine Supreme Court justices, each serving life terms, by filling just two or three vacancies a party in power can sway the decisions made by the most powerful court in the land for generations, especially if you choose judges who are forty years old. As pointed out by Elie Mystal in a second article from The Nation there is only one way to depoliticize such a process.

In a September 20 article from The Nation, “There Is Only One Way Out of This Crisis: Expand the Court: Expanding the Supreme Court may not be easy, but it’s the only constitutional way to address the Republicans’ cynical theft of at least two” Elie Mystal pointed out that an originalist interpretation of the Constitution provides a window on how to depoliticize the Supreme Court. She cites the Constitution:

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

US Constitution: Section I: Article III

Mystal goes on to point out that while it would take a constitutional amendment to limit the length of terms (good luck with that), it would only take an act of Congress to expand the court by adding ten new justices. She goes on to say that if the Democrats were to do this in such a way that the resulting court was not overly liberal, but rather reflected more of a balance of views, several positive outcomes would result. First, any time a judge retires or dies, the party in power would be appointing a representative who would not be able to fundamentally shift the balance of the court. The death of one 87 year old justice would not result in a generational change in the court. Second, the court would benefit from a more diverse array of perspectives, simply by virtue of having a larger body.

No doubt, Biden will convene a bipartisan commission. When he does, it will be essential that an informed electorate lobby heavily for not “packing the court” but “balancing and depoliticizing the court.” Certainly the GOP and Fox will decry this as “packing” but words matter and so should history. Understanding the historic context and the degree to which the Supreme Court has served almost exclusively the interests of the 1% will be important, as will our choice of words in framing the debate.

I want to close this piece by bridging it to a piece to be published next week. The right and the left wings of the nation, the Trump supporters and the Black Lives Matter supporters, have BOTH been oppressed by the same system. That system and the oligarchy that manipulates it, has systematically pitted the right and the left against each other by focusing white working poor voters on fears that their guns will be taken, that abortion is murder and that unbridled immigration will take their jobs. We need to find a way to help the left and right wing understand that those two wings are part of the same bird and that as long as they are working against each other, that bird simply can’t thrive. Instead, we flail against one another and allow the powers that be to maintain power, to manipulate our economic system and to populate a court system that validates the rights of the 1% to the great detriment of a floundering bird: Us.

It is easy to say that the right and left wings of a bird are all part of the same bird, the metaphor is powerful. The reality of our divisions, however, make the resolution of those divisions more difficult. But, as many pundits have noted, if Democrats can win both seats in the Georgia Senate runoffs and then quickly advance a series of bills designed to provide badly needed support benefiting both wings of our country: tax relief and jobs for working America, affordable healthcare, small business relief, among other policies, perhaps the power of Fox/Trump/GOP misinformation can be defused and both wings can begin to flap more in harmony.

In solidarity and hope,

Paul & Roxanne

Categories: Criminal Justice

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1 reply

  1. About wings working together – check out Edwin Rutsch’s Empathy Circles.

    Quote: “Lets Set up the Empathy Tent in front of Congress and demand they take part in Empathy Circles to bridge the political divides that are tearing the country apart.”
    Empathy Circles with Congressional Representatives

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