America’s Serious Supreme Court Problem

This piece appeared in newspapers in early March, 2024.

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Today’s Supreme Court is the opposite of what it is supposed to be. It’s supposed to be the body that stands above the various parties and interests that are in conflict and resolves those conflicts according to the Constitution and the Law. Instead, more than any Supreme Court in American history, this Supreme Court is an extension of one of America’s major partisan interests.

Partisanship has marred past Supreme Courts:

• the Court that handed down the Dred Scot decision of 1857, for example, which claimed that “the black man has no rights the white man was bound to respect,” was dominated by the Slave Power; and
• the Court from the 1870s to the 1930s consistently served the rising Corporate Power, against the interests of workers and the wider public.

But those Courts were excessively partisan on a specific category of issues, while today’s Court has been contorting law, Constitution, and justice on a variety of issues that have nothing in common except that they serve the interests of the Republican Party.

What demonstrates that this Court must be seen as purely partisan, and not as conservative is that the opinions the Court majority hands down, supposedly to “explain” their decisions on so many major cases are so weak, so poor, so distorting of the Constitution, the law, and the history.

Contrary to the Rule of Law, this Cout majority puts first getting the desired results, and then fashions supposed justifications second.

In other words, the Court is only pretending to do what the Court is supposed to do, while actually serving the partisan interest that placed this Republican majority on the bench.
For example:

• Opening the floodgates for money to buy political power (Citizens United), thus taking power away from the American people and handing it to the plutocracy which dominates the GOP.
• Gutting the Voting Rights Act (Shelby), thus enabling the Republican-dominated states to disenfranchise vulnerable groups that tend to support the Democratic Party.
• The Court instituted an extreme reading of the Second Amendment (Heller), thus preserving for the Republican Party a mighty block of one-issue voters (and assisting in the plutocracy’s divide and conquer strategy against the American people).

But even if we knew none of this, what the Court just did on Trump’s bogus “presidential immunity” claim would suffice to show the blatant partisanship of this Republican-appointed Court majority. They acted nakedly not as the preservers of our Constitution but as agents of the force that has openly been assaulting America’s constitutional democracy.

In a nutshell, this is what the Court did: For no good reason, it abetted Donald Trump’s ongoing effort to evade the Rule of Law by delaying his most important trial from happening before the presidential election.

Here are the most essential facts that expose the Court’s unjustified alliance with Trump:

• It had been compellingly – irrefutably – argued to the Court that there’s an enormous public interest in establishing Trump’s innocence or guilt of these serious crimes before the citizenry must choose for whom to vote.
• The Supreme Court has shown in the past that it can deal with such cases in a big hurry when there’s a compelling public interest: like Bush v. Gore (2000), and like the Nixon-tapes case (1974).
• But this Court ignored the need for speed, acting for months as if time didn’t matter.
• There was really no need for the Court to involve itself at all. The legal issue is clear: there’s no merit whatever to Trump’s argument that he cannot be prosecuted no matter what crimes he might have committed as President. Two courts already issued powerful and compelling decisions utterly rejecting Trump’s claim, and virtually every legal expert agrees.
• While the jury is obligated to grant Trump the “presumption of innocence,” we as citizens have no such obligation. Indeed, it is our obligation to use the huge body of available facts to draw conclusions vital to the decisions we have to make as citizens. And everyone who is reasonably well-informed should know that the evidence for Trump’s guilt is overwhelming.

(If Trump were innocent, wouldn’t he be eager to prove it in Court? But instead, knowing he has no legal defense, he works incessantly to delay his trials until after the election which, if he wins, he can use the Presidency to prevent his ever being tried at all. Trump’s campaign of delay is tantamount to a confession.)

Were the trials to go forward in a timely way, not only would the ugly reality of Trump’s crimes be laid out publicly, but also he would (almost certainly) emerge as a convicted felon. Many Republican voters have told pollsters that they would not vote for Trump if he were convicted of such crimes.

There is no good reason for the Court to delay Trump’s going to trial for the most serious crimes in American history. But there is a strong partisan reason for the Court’s months-long “slow walking” of Trump’s meritless appeal to the point where it looks unlikely that this most important trial can happen before November’s election.

A trial that would hurt the chances of the Republican standard-bearer would damage also the chances of the down-ballot Republicans. So it is that — against the public interest, contrary to what democracy requires, and obstructing the Rule of Law — this Court majority has shown itself as partisan Republicans thinly disguised by their judicial robes.