Supreme Court Roundup: Tired of losing at Rick's? Let's get some new croupiers!

By Scott V. Sandford
Spy Justice Correspondent

This week in occupied Washington, the Supreme Court heard oral argument in the challenge to President U Bum's desire to subvert the 2020 Census, and our democratic system, by adding a citizenship question that is expected to depress the actual count by over 6,000,000.  It was clear from the record and the lower court's decision that adding the question was based solely on Republican desire to suppress the number of undocumented persons and Hispanics responding to the Census, the better to exclude those people from redistricting and government resource allocations.

So of course based on a straightforward application of the Equal Protection Clause, the Census Clause, and the Administrative Procedure Act, the corrupt endeavor was nipped in the bud, right?

Not so much:

[Commerce] Secretary Wilbur Ross wants to modify the 2020 census form in a way that will depress responses from immigrant communities — effectively shifting congressional representation away from Latinos and towards white voters who are more likely to favor Republicans. In doing so, Ross broke numerous laws, ignored the Census Bureau’s own experts, and openly lied about his motives.
And yet, at Tuesday’s oral argument, the Supreme Court appeared likely to vote along party lines to endorse Ross’ lawbreaking.

After you have recovered from your swoon, ask yourself exactly why you were surprised that a partisan, packed, illegitimate Supreme Court abandoned all adherence to principle except the principle that Republicans Win.   This is after all the Supreme Court that handed the 2000 election to the popular vote loser on grounds so preposterous that its opinion warned it could not be relied on in future cases.

As a result, said loser George W. Bush got to appoint two new Justices.  Already there was a sexual harasser appointed by his father and waved through by the incompetent Joe Biden.  Whatever happened to that guy?

Then, after refusing to allow real President Obama to fill a vacancy, the Republicans rammed through Pres U Bum's first nominee.  Most recently one member of the Republican majority that awarded the 2000 election to the Republicans resigned, allowing the Republicans to install a rapist in his place.

So, to sum up, you've got a Supreme Court that includes two sex offenders, one Republican occupying a seat stolen from real President Obama, and two others nominated by the guy who was awarded the 2000 election by the previous Republican majority.  And you remain in doubt as to how this Court will decide a case involving political advantage for the Republican Party, no matter how corrupt the challenged decision is?

Let's look at some recent other lawless decisions by a Republican dominated Supreme Court, shall we?

• The Republican Court gutted the Voting Rights Act on the ludicrous rationale that since the Act had been in force, there were few incidents of race-based denial of voting rights.

• The Republican Court allowed plutocrats and corporations the right to spend unlimited sums to nobble elections.

• The Republican Court refused to allow a comprehensive national system of regulation of health insurance on the grounds that it was not a regulation of interstate commerce.

• The Republican Court refused to allow in the same case the Congress to set the bounds and requirements for a dramatic overhaul of Medicaid funding on the grounds that it was too mean to states.

• The Republican Court allowed a transparently unconstitutional religion-based Muslim ban to take effect because the Executive was able to supply a pretext for its decision that did not specifically identify religion as a criteria.

What do these decisions have in common?  They were pushed through by a narrow Republican majority.  Their supposed rationales are to put it charitably unconvincing.  The results benefited the Republicans and their plutocratic funders.

There's a lot of moaning about how the Republicans have cemented a reactionary pro-GOP majority on the Court for a generation.  But it ain't necessarily so.

Let's rev up the ol' Waybac machine to another time when a Republican Supreme Court misused its power to repeal the New Deal. The year was 1937.  The Court had struck down one New Deal law after another.  Next up were the Social Security Act and the National Labor Relations Act.  President Franklin D. Roosevelt had had enough.

He proposed to add up to six new Justices to the Court.  It was regarded by conventional wisdom as one of his greatest political blunders and went down to stinging defeat in Congress.  But a funny thing happened about six weeks after he proposed it:

The court, however, would spring some surprises of its own. On March 29, by 5 to 4, in West Coast Hotel Co. v. Parrish, it validated a minimum wage law from the state of Washington, a statute essentially no different from the New York state act it had struck down only months before. As a result, a hotel in Wenatchee, Washington, would be required to pay back wages to Elsie Parrish, a chambermaid. Two weeks later, in several 5 to 4 rulings, the court sustained the National Labor Relations Act. A tribunal that in 1936 had held that coal mining, although conducted in many states, did not constitute interstate commerce, now gave so broad a reading to the Constitution that it accepted intervention by the federal government in the labor practices of a single Virginia clothing factory. On May 24, the court that in 1935 had declared that Congress, in enacting a pension law, had exceeded its powers, found the Social Security statute constitutional.

Coincidence, Professor Leuchtenberg?

This set of decisions came about because one justice, Owen Roberts, switched his vote. Ever since, historians have argued about why he did so. We know that he changed his mind on the validity of minimum wage laws for women before Roosevelt delivered his court-packing message, so FDR’s proposal could not have been the proximate cause. Since there is no archival evidence to account for his abrupt change on the minimum wage cases, scholars have been reduced to speculation. Perhaps, during a visit to Roberts’ country retreat in Pennsylvania, Chief Justice Hughes had warned his younger colleague that the court was placing itself in jeopardy. Perhaps Roberts was impressed by the dimensions of FDR’s landslide, which indicated that the president, not the court’s majority, spoke for the nation. Perhaps he was affected by the biting criticism from within the legal community. It is even harder to account for why Roberts, in his subsequent votes in the Wagner Act and Social Security cases, supported such a vast extension of federal power—but the pressure exerted by the court-packing bill may very likely have been influential.

Roberts’ switch had two consequences for Roosevelt, only one of them good. The president could rejoice that his program might now be safe, as indeed it was. Never again would the court strike down a New Deal law.

Let's just repeat that one more time:   Never again would the court strike down a New Deal law.

Which brings us to another Justice Roberts, our old classmate and fellow stoner.  He's been slinging around his conception of the Court as a neutral arbiter of legal disputes for as long as his Court has been anything but:

Roberts had refused to comment on Trump's earlier attacks on judges, including the chief justice himself. But on Wednesday, after a query by The Associated Press, he spoke up for the independence of the federal judiciary and rejected the notion that judges are loyal to the presidents who appoint them.

"We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them," Roberts said.

On the day before Thanksgiving, he concluded, "The independent judiciary is something we should all be thankful for."

We gotta admit: John Roberts '76  (third from left, no, with
teacup, or maybe with cap – we were pretty wasted)
was a lot more fun in college

We would be if we had one, John.   But the point is not the truth value of his observation (which is zero).  It's that he desperately wants to maintain the facade of an impartial and independent Court.  If it cracks, then why not add new justices in 2021 if Democrats control the White  House and the Congress?  As long as he can maintain a plausible fiction of a neutral judiciary, he can fight off any Democratic effort to establish one by balancing the votes of sex offenders and those sitting in seats stolen from Obama with new justices interested in the rule of law.   Like Merrick Garland.

It follows then if you want Justice Roberts, like old Justice Roberts, to once in a while vote like a judge and not like a Republican, you have to keep threatening him with the consequences to his Court of his failure to do so: four new Justices.

Of course if you don't care if the Supreme Court continues to issue decisions as ill-founded as Bush v. Gore, by all means continue to bloviate about how unpacking the Court would “backfire” on Democrats.  That's the best way to ensure a rigged Census, gerrymandered districts and 5-4 votes to insulate the Grifter-in-Chief from further exposure of his exhaustive array of high crimes and misdemeanors.

The fair minded of you may object to tarring the Chief Justice with the taint of Bush v. Gore.  He wasn't even on the Court in 2000.  Where was he, you may ask.

Here:

During the 2000 presidential election, though, [Roberts] was enlisted to help George W. Bush by assisting in the case Bush v. Gore. Shortly thereafter, Bush nominated Roberts to the U.S. Court of Appeals for the District of Columbia Circuit. 

Anyone else wondering if this game is really as honest as the day is long?

STOP PRESS: As this story was being sent to the typesetters, some guy claiming to be a Senator from Rhode Island compiled a comprehensive review of the Roberts Court pro-Republican decisions.  If you don't believe us, take it from Sheldon.