A “justice” who sits in defiance of the Constitution has cast the deciding vote in too many cases.
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Those
are sensible calls. But meanwhile, too little attention has been paid to
another shattering blow to the Supreme Court’s legitimacy: the presence of a
judge who sits in defiance of the Constitution.
The
Supreme Court makes decisions that directly affect our personal lives — from
abortion to college admissions and COVID-19 precautions. The court also makes
decisions that affect our democracy, such as whether states can manufacture
obstacle courses to voting.
For
decisions to be entitled to respect, the justices must be appointed fairly and
in a manner consistent with the Constitution. That includes each president
having the opportunity the Constitution provides to appoint justices reflecting
his or her judicial philosophy.
Justice
Neil Gorsuch fails that test because he was appointed in defiance of our
Constitution. The court’s decisions cannot be deemed legitimate when one of its
members should not be on the court at all.
The
Constitution provides the president “shall” appoint
Supreme Court justices. So when Justice Antonin Scalia died in February 2016,
President Obama had both the right and duty to fill the vacancy.
The
Senate’s constitutional role is to “advise and consent” to nominations. But it
has no authority to negate altogether a president’s duty to fill vacancies.
Nonetheless, the Republican Senate refused to even consider any nominee President Obama proposed. Their excuse: it was an election year and the vote should be delayed until “the will of the American people” could be heard 10 months later.
The
argument made no sense. The “will of the American people” had already been
heard when they elected Obama. A president’s constitutional right to fill
vacancies isn’t limited to the first three years of his term.
McConnell
later admitted his excuse was false, announcing that if a vacancy occurred in
the last year of Trump’s term, he’d let Trump fill it.
That’s exactly what McConnell did when he rushed Amy Coney Barrett’s
confirmation just eight days before the 2020
election, which Trump lost.
The
seat Barrett filled was vacant for barely a month after the death of Ruth Bader
Ginsburg. By contrast, the vacancy that was constitutionally Obama’s to fill
remained vacant for a year — until Trump could appoint Gorsuch to the stolen
seat.
But
for Gorsuch’s illicit presence, any 5-4 decision in which he casts the deciding
vote would likely have gone the other way. It’s happened repeatedly.
Last
year the Supreme Court addressed a Texas law allowing private bounty hunters to
sue abortion providers, essentially outlawing all abortions. Gorsuch and four
other justices refused to halt the blatantly unconstitutional law.
The
same year, in defiance of the Voting Right Act, Alabama engaged in racial
gerrymandering, cutting the representation of Black Alabamians in half. Lower
federal courts halted the racist move, but Gorsuch joined four conservative
justices to suspend that decision.
Gerrymandering
also came before the Supreme Court in 2019. North Carolina Republicans — who
got 53 percent of the vote there in 2016 — drew maps giving themselves 77 percent of
the state’s congressional districts. Gorsuch again cast the fifth
vote to bless this unfair redistricting.
Thanks
to assaults on democracy like these, the Supreme Court has lost its legitimacy.
And if McConnell follows through on his promise to block any Biden nominees if
Republicans retake the Senate, it may never recover.
In
short, the Republican Party has made Justice Gorsuch the receiver of stolen
property — and turned the Supreme Court into a GOP hit squad in black robes. He
should resign.
But
since he won’t, his impact on close cases must always be noted. His 5-4
decisions must be considered illegitimate — and overturned at the first
possible opportunity.
Mitchell Zimmerman is an attorney, longtime social activist, and author of the anti-racism thriller Mississippi Reckoning. This op-ed was distributed by OtherWords.org.