Three illicitly appointed GOP judges sit at the heart of the court’s legitimacy crisis.
 |
| CNN |
If you have to say it, it’s too late.
The Supreme Court is under attack these days. A solid
majority of Americans disapprove
of the way the court is doing its job — and rightly so. Almost
two out of three Americans believe the court is mainly
motivated by politics.
And they’re right.
Let’s go back to the year 2000 and the Bush versus Gore
presidential contest.
The hyper-close election came down to Florida where, at a
key moment with a recount underway, Bush enjoyed a threadbare lead of 537 votes
out of 5.8 million cast. Bush’s margin had been shrinking as the recount
progressed, and Democrats were hopeful it would disappear.
Enter the right-wing Supreme Court. In a startling 5-4
decision, the court halted the recount, handing the presidency to Bush.
The decision was roundly condemned by nearly 700 law
professors of different political views, who warned: “By stopping the vote
count in Florida, the U.S. Supreme Court used its power to act as political
partisans, not judges of a court of law. By taking power from the voters, the
Supreme Court has tarnished its own legitimacy.” (Disclosure: I drafted the
statement!)
Why did the court perpetrate this judicial coup d’etat on
behalf of a candidate who’d lost the national popular vote by over a half
million ballots?
Because it was necessary to secure the succession. In 2000, the right wing dominated the Supreme Court, but just barely. With two justices in their 70s, the five conservatives feared a Democratic president would be able to shift the balance to the liberal justices.
So the conservatives installed an illegitimate president
and in return received two illegitimate right-wing justices, John Roberts and
Samuel Alito.
The right-wingers used their continued ascendancy to
enact the GOP’s political agenda.
Defying long precedent, they invented a personal right to
own firearms in the 5-4 D.C. v. Heller case, enabling a
seemingly unstoppable epidemic of gun violence. In the 5-4 Citizens
United decision, they emboldened corporations and the rich to corrupt
our politics with floods of money. And in the 5-4 Shelby County case,
they unleashed a war on democracy by crippling the Voting Rights
Act.
Now add Justice Neil Gorsuch.
In February 2016, conservative Justice Antonin Scalia
died. Under the Constitution, President Obama had the right and obligation to
fill the vacancy — and the Senate had the duty to consider his nominee, Merrick
Garland. Instead, the GOP-controlled Senate spurned its constitutional
obligations, refusing to even hold a vote on Garland’s confirmation.
Over a year later, Donald Trump — another Republican
president who took office after losing the popular vote — gained the presidency
and appointed Gorsuch, who stole the seat that was Obama’s to fill under the
Constitution.
If these three had not been placed on the court through
chicanery, we’d have a liberal majority instead of a right-wing
supermajority — and we’d see major differences in our lives.
We’d get better solutions to school shootings than
putting bullet-proof backpacks on our children. The crushing burden of student
loans would be lightened for millions. Our democracy would be less at risk,
with voting rights protected and gerrymandering reined in.
Judges wouldn’t be undermining government action on the
unfolding climate disaster. And women would still have the right to decide for
themselves whether to bear children.
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. Read Progressive Charlestown's review of Mississippi Reckoning HERE.