Fourth of July Thoughts: The Bent Key of the U.S. Supreme Court
Scott Montgomery argues that SCOTUS is "a true" example of the American “deep state” and examines where it might turn its gaze next.
It was a quiet fourth of July this year. Neighbourhood fireworks ended early, well before midnight, with their cracks and fire seeming to lack enthusiasm.
Only a few days earlier, Americans had woken to the reality that a far-right, steeply unbalanced Supreme Court is the highest power in the land. This means not only judicial, but political, social, and cultural power. It means the power to change the course of the country with just a handful of rulings. Once considered the key to a balanced government, the Court has revealed what a great many had feared—the key is now bent toward a minority, reactionary worldview.
For some, of course, this is cause for the popping of corks and lighting of sparklers. But for the majority, it is frightening and, for younger people, deeply threatening. For my generation, which watched the rest of the world “catch up” in such areas as women’s rights, the Court has made the country a regressive outlier by joining the anti-democratic and illiberal forces that have so poisoned American society and are so perilous to its future.
Today, in fact, the power of the Supreme Court is higher than ever. This is not because, as often noted, the U.S. Constitution itself is “what these judges say it is.” It is because the far-right majority has no accountability for its political and religious biases and—a major point—feels little need to follow precedent in trying to veil or disguise them. The majority in its recent decisions directly reflects Republican priorities—anti-abortion, anti-environmentalism, pro-gun rights, and expanded use of public monies and property for religious (Christian) uses. Moreover, in the most consequential of these, the overturning of abortion rights, the majority opinion by Justice Alito utterly ignored factual information submitted to the court by professional historians and instead relied on other “facts” favored by abortion opponents. This, too, is in keeping with Republican priorities.
In the past, justices appointed under Republican administrations (Nixon, Reagan, Bush I) tended to join with liberal members over time. Examples include Warren Burger, Sandra Day O’Connor (first woman on the Court), David Souter, and, to a degree, Anthony Kennedy (supported abortion rights, gay marriage). Such evolution isn’t likely with the current majority. The most senior among them, Clarence Thomas, has informed his clerks, “I ain’t evolving.”
Staunchly quiet, barely visible for decades, he has now emerged as a distinct, influential presence, having written the majority opinion in New York Rifle and Pistol Association v. Bruen, the first major ruling on gun rights in more than a decade, greatly expanding the legality of carrying a concealed handgun anywhere in public. This flies directly in the face of the research consensus that more guns in more hands leads to more death and injury. Again, facts do not seem a preferred criterion for Thomas or the majority.
With Thomas, there is more evidence of this. Consider the matter of his wife, Ginni, and her overt use of her status as Court spouse to gain political influence. We now know she attended the January 6, 2021 rally by Donald Trump, which became the attack on the Capitol. She pressured Trump’s Chief-of-Staff, Mark Meadows, to try and overturn the election result and has been involved in other ways pushing the false claim of “voter cheating” and a “stolen election.” On the advice of her own lawyers, she has refused to testify before the January 6 Congressional Committee on the Capitol attack.
While any part of this is entirely unprecedented in U.S. history, the whole of it would have seemed, even during the Reagan Administration, like a film script conceived by a pharmaceutically inspired first-year law student. Somehow, though, Justice Thomas sees no reflection on himself or the Court. It doesn’t seem relevant that the spouse of a justice on the highest court was involved at some level in an attempted coup on the same government her husband serves. Such—how shall I put it?—restraint of sensitivity would itself be a scandal in a liberal democratic setting. But in America, not so. Our sensibilities about such things have been so smashed and blunted by useless outrage during the Trump years that this barely rings a chime let alone the Liberty Bell.
In creating the Supreme Court, the founders sought an impartial body that lived above the roil of everyday politics. It would be independent, and, if chosen well, detached, able to perceive when the people’s rights and liberties were at risk from. Justices would be appointed for life to free them from external pressures of pecuniary and political kinds. Should any such influence tempt their hand, they could be removed by conviction on impeachment.
This l was presumed to be an effective check against any “deliberate usurpations on the authority of the legislature,” as Hamilton put it in Federalist 81. Threat of impeachment, he said, “is alone a complete security.” It was one of Hamilton’s less-prescient arguments.
The “complete security” has proven a phantom. In 230 years, only one justice has ever been impeached, Samuel Chase in 1804. His crime? The targeted one: “tending to prostitute the high judicial character with which he was invested, to the low purpose of an electioneering partisan.” He was not convicted. The case, in fact, only strengthened future reluctance to pursue similar proceedings. For over two centuries, “complete security” has remained, to borrow a phrase from Browning, “empty and fine as a swordless sheath.” The concern over impeachment becoming a weapon of over-use for political reasons has no doubt played a role here. Yet the effect has been to make justices de facto untouchable, like judicial seraphim gazing down from the empyrean.
In legal terms, the Court’s highest power is that of ‘judicial review’. It decides whether any particular act of government (local, state, or federal; legislative, executive, or judicial) violates existing federal laws or the U.S. Constitution. This power was granted by the Court to itself in the 1803 case Marbury v. Madison, as part of its necessary separation from the other two branches. But again, ultimate ‘review’ over rulings that came to involve individual rights, labor issues, segregation, guns, the place of religion, environmental regulation, and a wide range of other matters that determine the shape of daily life, is now the near-equivalent to having the power of ‘review’ over society itself. History, it would seem, has over time made the Court much more of a force in the course of the country than foreseen by the founders.
Every president inherits a Supreme Court created by predecessors. This has become even more true than in the past. According to a recent report on Court reform, prior to the late 20th century, average time on the bench was about 15 years. Today, it is nearly twice that—26 years. If justices were once appointed in their 50s, often after extended careers in private or public service, today they are sought more often in their 40s, with a possible tenure lasting four decades. This is another clear sign of open politicization, but it also elevates the presumed importance of every appointment, making confirmation a battleground and political show. Still worse, it means that an incompetent, corrupt president like Trump, who had the unfortunate good fortune to nominate three justices (Gorsuch, Kavanah, Coney-Barrett), can have a long-term impact on the national future.
From one point of view, then, the Court is a primary example of the “deep state”. America remains the one constitutional democracy without either a term limit for Supreme Court justices or a mandatory retirement age. Again, the founders thought this was needed for impartiality. But in a country broken by polarization, it stands a good chance of doing the opposite—securing partiality for generations. In truth, the founders never thought the Court’s power would be what it is today. The Federalist devotes only three essays to the “Supreme Tribunal,” compared to more than a dozen each on the legislative and executive branches.
The "deep state” idea has more significance than an ironic aside. A review of Court decisions over time, in the context of U.S. history shows, it has often acted as a force not just of moderation but of stagnation and regression. This is especially true during periods of crisis: the 1850s battles over slavery, the major era of immigration from the 1880s to 1910s, the labor struggles of the late 19th and early 20th centuries (the so-called “Lochner Era” of Court decisions), and the Great Depression of the 1930s.
The record is obvious and inarguable. Looking at race, Court rulings from the 1880s to the 1950s about rights and liberties of black people, issues of immigration, and naturalization of non-whites were routinely racist, repressive, and anti-democratic. The longest confirmation process for a new justice was also during this period (1916) and concerned Louis Brandeis, “the People’s Lawyer” as he was known, who was Jewish.
It took the dominantly (and uniquely) liberal bench under Chief Justice Earl Warren (served 1953-1969) to undo much of this. Not surprisingly, the Warren Court used the Bill of Rights to argue for many of its rulings, a sign of how fundamental it understood its role to be.
Forever after, the Warren Court has been hated by conservatives for its expansion of federal authority and, in the South, its defense of civil rights. There were regular calls for impeachment of Warren, as well as proposals for Constitutional amendments limiting the Court’s purview. Warren’s bench spent a decade defending its early rulings against segregation. Interestingly, Warren was a moderate Republican who, as Attorney General of California, supported internment of Japanese-Americans during WWII, but, when appointed by President Eisenhower to Chief Justice, acted as an unyielding defender of individual rights. While it is fair to say that the Warren years much increased the power of the Supreme Court, this was necessary to address the issues of race and individual liberty that were buried by Southern legislators in Congress.
Despite the controversy of this period and its mixed record in some essential areas, SCOTUS has enjoyed higher esteem among the public than any other domain of government, except perhaps the military. This era of high faith now seems at an end.
The Roberts Court has made it no longer possible—and for its admirers, not desirable—to pretend it is capable of impartial decision-making. In its landmark rulings of the past decade, the current Court has shown an obvious pattern of working to reverse parts of the Warren legacy. Several of the most prominent of these rulings include: Citizens United v. Federal Election Commission (2010), which found corporations have standing as individuals to use their wealth in influencing public opinion and elections; Shelby County v. Holder (2013), which greatly weakened the 1965 Voting Rights Act by giving states more control over elections; and Burwell v. Hobby Lobby (2014), which gives company owners religiously opposed to contraception the power to delete such services from the federal health-care coverage they offer (Hobby Lobby being a national chain declared by its owners to be operated on “Biblical principles”).
Together with Dobbs v. Jackson Women’s Health, which struck down the right to abortion, such decisions have brought public confidence in SCOTUS to as low as 25%, the lowest in 50 years. Different surveys show different numbers, true enough. All, however, reveal a major decline well below 50% unparalleled in the post-war era, suggesting most Americans do not perceive this Supreme Court any longer as fully legitimate. The point of this isn’t that the public should determine the Court’s authority or make-up. It’s that the Court’s major decisions have further entrenched, even deepened, the fractures and veins of illiberalism in the country. At this point, there seems little chance that future rulings will dissuade them from this viewpoint.
Whether such a nadir will prove temporary or not, it marks the trench in a downward slope that began after 2000. This was the year the Court intervened in a tight presidential election, stopping an ongoing recount in Florida and thereby handing the White House to Republican George W. Bush. That the majority in that decision had all been nominated by conservative Republican presidents did not seem a mere coincidence. The loss in Court standing only grew due to the immense damage wreaked by the Bush Administration domestically and internationally, not least in the Middle East.
One other aspect about the current Court majority: five of the six justices are conservative Catholics. We might guess this is not an accident. It is very much a packing of the Court to overturn abortion rights, and it has been successful. To think that this will be the end of such efforts to curtail reproductive freedoms would be dangerously naïve. We would be wrong to think the anti-abortion position of these justices and their supporters is about “protecting innocent life.”
In the early 1970s, when Roe v. Wade was decided, the Catholic community opposed it, but much of the evangelical community embraced it. The strongest anti-abortion stance in the U.S. Congress was liberal Ted Kennedy, who, like liberal Catholics throughout the country, later shifted his position. Conservative Catholics and conservative Protestants came together on the abortion issue in the late 70s and early 80s as part of a religious reaction to the 1960s-early 70s counter-culture, desegregation, and the liberal secularization of American society. This religious movement, referred to as the New Right and Moral Majority, helped elect conservative presidents and drive pro-abortion Republicans from the party by the late 1990s. I wrote about this history in detail in a 2015 book, Shape of the New, but there have emerged new elements that my co-author, Dan Chirot, and I didn’t discuss.
A majority of American Catholics became more open to abortion over time. Today, more than half (56%) say it should be legal in most or all cases (President Biden is one of them). They also believe the Church should stay out of politics. A factor we did not discuss in our book is the recent growth of a reactionary movement in the Catholic community that rejects without exceptions abortion, contraception, gay and LGBTQ rights, and more. It publicly detests many of the Pope’s positions and is pushing to deny Communion to President Biden. Local leaders of this movement have declared “You cannot be a Catholic and a Democrat,” calling Democrats as a whole, “the party of evil and death.” It is this side of Catholicism that conservative members of the Supreme Court appear to hail from, as did Justice Scalia.
What this reactionary movement shows, as did the New Right of the 80s, is that the battle over abortion is less about life and more about power—the power and place of Christianity (not ‘religion’) in American life. It is about Christian leadership reclaiming legislative, executive, and judicial authority over national moral standards, what qualifies as right and wrong, good and evil, just and unjust, therefore acting as the “nation’s conscience,” the true hand guiding society.
That conservative Catholics should seek such authority may seem more than a little parodic, even self-mocking. Nearly three decades of revelations about widespread sexual abuse of children and institutional attempts to cover it up have left the Church rightly in a swampland of scandal. Reactionaries fend off any association and deny the systematic nature of the abuse by claiming the culprit as “sexual deviancy,” meaning “a homosexual subculture” that must be “purified at the root.” They are the solution, in other words.
It is daunting to consider what further impacts this Supreme Court may have. Later this year, it will hear cases on state electoral powers, gerrymandering, and affirmative action. Justice Thomas has hinted that same-sex marriage, over-the-counter contraception, and other liberties may be targets of future decisions. At the same time, the Court is far from having the final word on any of these matters. The ray through the clouds may well be an elevated level of committed and consistent activism against such regressive influence. If such be the case, it would be a reason to again celebrate a day devoted to American independence.
Scott L. Montgomery is an author, geoscientist, and affiliate faculty member in the Jackson School of International Studies, University of Washington, Seattle. He has 25 years' experience in the energy industry, where he worked on projects in many parts of the world. His many technical publications include papers, monographs, articles, and textbooks, mainly focused on cutting edge hydrocarbon plays, technologies, related impacts and issues.
Photo by Tara Winstead