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The March of Supreme Court Zombies
Don’t Worry About A Romney Appointed Court
by WILLIAM KAUFMAN

Halloween has been over for nearly a week, but prepare yourselves for another autumn haunting this Tuesday: a swarm of Democratic liberal zombies, perhaps numbering in the millions, will darken the streets of the nation, staggering in desperate half steps toward the nearest polling place, lifeless bloodshot eyes peering into the political void, robotically intoning, “Must . . . vote . . . Obama . . . save . . . Supreme . . . Court.”

Every four years this undead political myth—the specter of a far-right takeover of the High Court that only the Democrats can prevent—rises from the grave to cast its long shadow over rational political discourse and terrify otherwise sensible people into voting for whichever corporate hireling is fronting for the Democrats.

Of course, with the impending presidential election, the Supreme Court rationale has been getting its quadrennial intensive workout.  According to the venerable antiwar activist and scholar Daniel Ellsberg, “And it [an Obama defeat] would spell, via Supreme Court appointments, the end of Roe v. Wade and of the occasional five to four decisions in favor of the Constitution and Bill of Rights.” [1]

But for a full head of diversionary rhetorical steam, you can’t top this geyser from Phyllis Bennis of the left-liberal Institute of Policy Studies:

And while foreign policy shows the closest parallels between the two parties, that isn’t the only issue. Who gets appointed to the Supreme Court—whether a mainstream moderate centrist or a young right-wing extremist ideologue who will work for decades to move the court even further to the right—matters a huge amount. And that’s exactly who the current Republican party will appoint. Top Republican candidates view rape—“legitimate” or otherwise—as God’s plan for bringing babies into the world. Women, especially poor women, living in much of this country already have few or no options for full reproductive healthcare, especially in how to deal with unwanted pregnancy. One party is pledged to appoint judges who will overturn Roe v. Wade and make abortion illegal across the board. That matters. [2]

Of course, we have been living with a Court with a majority of Republican appointees for decades now, and Roe v. Wade has remained intact ever since that landmark 1973 pro-abortion decision, which was delivered by a 7–2 majority from a court with 6 Republican appointees, including the notorious conservatives Lewis Powell and Warren Burger, who voted with the majority; the majority opinion was written by Harry Blackmun, a Nixon appointee who evolved into one of the court’s notable liberal voices. But the ironies do not end there: one of the two “no” votes came from Byron White, a Democratic (Kennedy) appointee.

The italicized passage makes the key point: the Supreme Court is not and never has been a cardboard array of party-line purists inhabiting in a Platonic realm of antiseptic legal logic. Despite the lifetime tenure designed to insulate the justices from extra-legal pressures, the court has been no more immune to political and social forces than any other branch of government. This reality has become a commonplace of court scholarship. Jeffrey Rosen, professor of law at Georgetown University, has stated, “Throughout its history, the court has tended to issue opinions, in areas from free speech to gender equality, that reflect or consolidate a social consensus.” [3] An extensive quantitative analysis in the American Journal of Political Science concludes that “the public mood directly constrains the justices’ behavior and the Court’s policy outcomes. . . . The prevailing tides of public sentiment create an active, meaningful constraint on many of the tangible policies that emanate from the U.S. Supreme Court.” [4]. Or, in the words of former Supreme Court Justice Benjamin Cardozo, “the great tides and currents which engulf the rest of men do not turn aside in their course and pass the judge by.” [5]

Roe v. Wade was a conspicuous case in point. The pro-abortion ruling was not the result of seven elderly, mostly reactionary, mostly white patriarchs suddenly discovering their inner feminist soul—it was, rather, the fruit of the rapidly intensifying social and political ferment of the late sixties and early seventies. The tempo of attitudinal change was dizzying on all social fronts, not least of all among American women and in general views about their role in society:  in 1968, only 15 percent of Americans believed that women had a right to an abortion. By 1971, the number had skyrocketed to 50 percent. In 1970, New York State, acceding to growing pressures, became the first state to legalize abortion. By 1971 women were marching in major national demonstrations to demand the right to choose. Roe v. Wade emerged out of clamor of thousands of women in the streets, not out of the wizened skulls of seven patrician gents in robes.

The landmark decisions of the postwar liberal Warren Court owed just as much to shifting social attitudes and pressures. Keep in mind that Earl Warren was a Republican governor of California appointed to the high court by Eisenhower, yet he presided over a sweeping series of progressive rulings in civil rights and civil liberties, most notably in Brown v. Board of Education. But that pivotal 1954 decision, which overturned racial segregation in public schools, was inspired more by geopolitical self-interest than any pangs of conscience by the court. In the words of Howard Zinn,

When the war ended, a new element entered the racial balance in the United States—the enormous, unprecedented upsurge of black and yellow people in Africa and Asia. President Harry Truman had to reckon with this, especially as the cold war rivalry with the Soviet Union began, and the dark-skinned revolt of former colonies all over the world threatened to take Marxist form. Action on the race question was needed, not just to calm a black population at home emboldened by war promises, frustrated by the basic sameness of their condition. It was needed to present to the world a United States that could counter the continuous Communist thrust at the most flagrant failure of American society—the race question.[6]

Truman’s postwar Committee on Civil Rights was surprisingly blunt about the matter: “We cannot escape the fact that our civil rights record has been an issue in world politics. The world’s press and radio are full of it. . . . The United States is not so strong, the final triumph of the democratic ideal is not so inevitable that we can ignore what the world thinks of us or our record.” [7]

As in the case of Roe v. Wade, the court did not steer events, either out of legal scruple or rabid ideology: it was, like every other branch of government in times of turmoil, merely the point at which social and political upheaval was refracted through the medium of the law—in those historic cases, as in others, it adapted to, rather than initiated, the major socio-political trends of the era.

But more recent examples abound as well. Last June, when the Supreme Court upheld Obamacare by a 5–4 margin, the MSM punditry was stunned that Chief Justice Roberts had crossed party lines to join with his more “liberal” colleagues to hand Obama a major political victory. What the mass-media courtiers discreetly failed to note, for the most part, is that Roberts was answering to “a higher authority” than mere partisan loyalty. The spurious reform known as Obamacare was a lavish gift from the piratical insurance industry to itself in the form of the individual mandate that requires Americans to buy the extortionate, woefully inadequate “coverage” offered by the private insurers. That measure, so widely celebrated by putatively liberal Democrats, is actually a corporate scam initially hatched at the arch-conservative Heritage Foundation. Roberts was nominated to the high court and confirmed largely because of his unblemished judicial record of obeisance to business interests; hence it should have come as a surprise to no one that he bent his spine firmly in the direction of Big Insurance, declaring in his majority opinion, “The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.” [8] What should have shocked the commentators was that not merely Roberts, but also all of the court’s so-called “liberals” signed on to this brazen and unprecedented forcing of tens of millions of Americans into financial peonage to giant corporations.

By now, however, the Democrats’ long record of prostration before the 1 percent scarcely raises an eyebrow—which renders absurd the chicken-little campaign alarums that the barbarians are at the gate of the Supreme Court and that only the Democrats can bar the way. The story is the same for all of the most repugnant, Republican-appointed far rightists now sitting on the court: the Democrats, instead of blocking their path to the bench, have strewn it with roses by helping to confirm every last one of them—even though in every instance they had enough votes to mount a blocking filibuster had they really wanted to do so. To wit:

Samuel Alito: Cloture vote: 74–25 (19 Democrats voting for cloture, i.e., allowing a final vote on Alito and thus stopping a filibuster [60 votes are needed to impose cloture]). Confirmed: 58–42 on January 31, 2006. (The cloture vote was the pivotal vote since the final vote was a foregone conclusion; once the Democrats conspired with the Republicans to invoke cloture, any subsequent Democratic “nay” votes on confirmation were purely symbolic and meaningless.)

John Roberts: No roll call vote on cloture so voice vote or unanimous consent. Confirmed: 78–22 on September 29, 2005 (22 of 44 Democrats voted to confirm).

Clarence Thomas: No roll call vote on cloture so voice vote or unanimous consent. Confirmed 52–48 on October 15, 1991(11 of 57 Democrats voted to confirm—but again—there were more than enough Democratic votes to sustain a filibuster, but none was attempted).

Antonin Scalia: No roll call vote on cloture so voice vote or unanimous consent. Confirmed: 98–0 on September 17, 1986 (All 47 Democrats voted for Scalia—the 2 “not present” votes were Republicans). [9]

These shameful tallies expose the bankruptcy of liberal scaremongering about Roe v. Wade (and other social issues): the four current justices most likely to support a reversal occupy their seats on the bench courtesy of the Senate Democrats. And if the likes of Ellsberg and Bennis are fretting about the consequences of a potential Romney court appointment, it’s only because they know full well that the Democratic majority in the Senate will do nothing to stop it. In the words of David Sirota,

Now, let’s ask the more disturbing question about Democrats and their Supreme Court Argument: namely, what are they really saying when they specifically insist Romney must be defeated to prevent his presumably ultraconservative nominees from getting onto the court? They are actually making the self-incriminating admission that they know their own party will not use their powers in the Senate to vote those nominees down. In constitutional “advice and consent” terms, they are too willing to consent to any jurist — no matter how extreme — a Republican politician nominates. In fact, while Ronald Reagan and George W. Bush did withdraw nominations on their own, Democrats haven’t actually mustered the courage to vote down a Republican Supreme Court nomination in more than a quarter-century. [10]

But the Democrats have not merely served as passive enablers of far-right Republican appointments to the court. During the Clinton and Obama administrations they have had four shots at appointing a progressive to the bench and each time have instead nominated a pro-business centrist. Of Clinton’s appointments, Ginsburg and Breyer, Jeffrey Rosen wrote,

After the election of Bill Clinton, for example, the [C]hamber [of Commerce] endorsed Ruth Bader Ginsburg, who in addition to her pioneering achievements as the head of the women’s rights project at the A.C.L.U. had specialized, as a law professor, in the procedural rules in complex civil cases and was comfortable with the finer points of business litigation. The chamber was especially enthusiastic about Clinton’s second nominee, Stephen Breyer, who made his name building a bipartisan consensus for airline deregulation as a special counsel on the judiciary committee; and who, as a Harvard Law professor, advocated an influential and moderate view on antitrust enforcement.

During Breyer’s confirmation hearings his sharpest critic was Ralph Nader, who testified that his pro-business rulings were “extraordinarily one-sided.” Another critic, Senator Howard Metzenbaum of Ohio, said that the fact that the chamber was the first organization to endorse Breyer indicated that “large corporations are very pleased with this nomination” and “the fact that Ralph Nader is opposed to it indicated that the average American has a reason to have some concern.” The chamber’s imprimatur helped reassure Republicans about Breyer, and he was confirmed with a vote of 87 to 9. “Frankly, we didn’t feel like we had anyone on the court since Justice Powell who truly understood business issues,”  [Robin] Conrad [of the Chamber of Commerce] told me. “Justice Breyer came close to that.” [11]

Conrad also proudly cited as “one of her favorite moments” Ginsburg’s declaration of her wariness of the alleged “abuse” [read: vigorous employment] of private-securities fraud actions—one of the main tools by which defrauded investors can recoup losses caused by incompetent corporate management. [12]

Obama’s record on high court nominations has betrayed progressive hopes as surely as every other aspect of his administration. His nomination of Elena Kagan was greeted with cautious optimism both by business groups who respected her reputation as a “pragmatist” and by neocons who admired her June 2001 Harvard Law Review article supporting the expanded presidential powers of a “unitary executive.” Nor were there any signs of progressive leanings during her stint as Deputy Director of the Domestic Policy Counsel in Clinton’s White House; according to an associate, “There were some important issues on which Elena took centrist or even center-right positions, but it was never clear whether she was pressing her own views or merely carrying water for her boss on the Domestic Policy Council, Bruce Reed.” [13] As Dean of Harvard Law School, she compiled an abysmal record on diversity in staffing: of the 32 tenured and tenure-track professors she hired, only one was a minority and only seven were women.[14]

In Sotomayor Obama chose a former corporate defense attorney who had achieved no great distinction on the bench either for the intellectual rigor of her rulings or her willingness to defy entrenched business interests. According to a former Second Circuit clerk who worked with her, she is “not that smart and kind of a bully on the bench. She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren’t penetrating and don’t get to the heart of the issue.” [15] Before ascending to the high court she earned a reputation as a reliable ally of big insurance companies, prompting one insurance attorney to comment that in her cases pitting policy holders against giant corporations, “It’s insurers by a landslide.” [16] Moreover, prior to joining the Supremes, Sotomayor ruled to limit access to abortion by supporting the Bush administration’s ban on government funding to international groups that provide abortions or abortion-related services. [17] As David Sirota comments, “Even on the issues like abortion in which there seem to be real differences between the parties, his nominees have been underwhelming from a progressive perspective.” [18]

Thus from both the executive and legislative branches the Democrats have colluded with the Republicans to hasten the trajectory of the high court toward pro-business conservatism. The Democrats’ complicity in obliterating any traces of economic populism from the judiciary is the bitter fruit of a decades-old, systematic effort by business lobbying groups to colonize the Supreme Court, spearheaded by the Chamber of Commerce. The Chamber’s amply funded Supreme Court litigation program provides extensive rehearsal time to corporate lawyers with cases before the court. The Chamber also floods the court with friends of the court briefs to shore up corporate positions in key cases. Finally, the Chamber of Commerce lobbies intensively for pro-business nominees of both parties, as it did for Alito, Roberts, Ginsburg, Breyer, and Sotomayor (the Chamber did not endorse Kagan but did not actively oppose her).

Reflecting on the growing bipartisan consensus in favor of a pro-business court, Jeffrey Rosen wrote,

With their pro-business jurisprudence, the justices may be capturing an emerging spirit of agreement among liberal and conservative elites about the value of free markets. Among the professional classes, many Democrats and Republicans, whatever their other disagreements, have come to share a relatively laissez-faire, technocratic vision of the economy and are suspicious of excessive regulation and reflexive efforts to vilify big business. Judges, lawyers and law professors (such as myself) drilled in cost-benefit analysis over the past three decades, are no exception. It should come as little surprise that John Roberts and Stephen Breyer, both of whom studied the economic analysis of law at Harvard, have similar instincts in business cases.

This elite consensus, however, is not necessarily shared by the country as a whole. If anything, America may be entering something of a populist moment. If you combine the groups of Americans in a recent Pew survey who lean toward some strain of economic populism — from disaffected and conservative Democrats to traditional liberals to social and big-government conservatives — at least two-thirds of all voters arguably feel sympathy for government intervention in the economy. Could it be, then, that the court is reflecting an elite consensus while contravening the sentiments of most Americans? Only history will ultimately make this clear. One thing, however, is certain already: the transformation of the court was no accident. It represents the culmination of a carefully planned, behind-the-scenes campaign over several decades to change not only the courts but also the country’s political culture. [19]

Another thing is certain already: the Democrats have been both accomplices and beneficiaries of this campaign to stamp out the last vestiges of social and economic conscience from the Supreme Court in particular and from the American polity in general. In the Senate, the Democrats eagerly oblige Republican presidents by confirming far-right corporatist nominees; in the White House, Democratic presidents nominate their own corporatists, who in turn conveniently manage just enough support from Senate Republicans. Thus do the two corporate-financed parties cynically connive to push the “center” of American politics—in all three branches of government—ever farther to the right—so far to the right that the imposition of onerous economic servitude for millions of Americans in the form of Obamacare is widely hailed as a victory for sound “progressive” governance, along with other lavish corporate benefactions such as the bailouts of the Wall Street fraudsters,  the export of hundreds of thousands of jobs through a succession of bipartisan “free trade” agreements, and the pampering of the oil- and coal-extraction industries whose unchecked power threatens the planet with climate apocalypse.

Clearly, then, the basic political direction of the Supreme Court does not hinge on the whether a Democrat or Republican occupies the White House; in either case we can expect enhanced power  and wealth for the 1 percent and growing suffering for the rest of us. Fortunately, given the proven ability of mass movements and political/social pressures to stymie the rapacity of the elite, the future of the country need not be served up to the not-so-tender mercies of the corporate law firm known as the Supreme Court. But as long as the citizenry heeds the liberal zombies and passively consigns its fate to those nine lawyers—rather than taking history into its own hands by organizing and fighting for its civil and economic rights—the Justices will gladly welcome our cooperation.

Unless the quadrennial march of the Supreme Court zombies awakens into a perennial march of an enraged and aroused populace, we are headed for a self-fulfilling political prophecy: a corporate-dominated Night of the Living Dead.

William Kaufman is an educational writer who lives in New York City. He can be reached at kman484@earthlink.net.

NOTES

[1] Daniel Ellsburg, “Defeat Romney, Without Illusions About Obama: Advice to Progressives in Swing States, Vote for Reelection,” Commondreams, October 18, 2012, https://www.commondreams.org/view/2012/10/18.

[2] Phyllis Bennis, “Why Elections Matter and Why We’re Still Arguing About It,” October 29, 2012, Institute for Policy Studies, http://www.ips-dc.org/blog/why_elections_matterand_why_were_still_arguing_about_it.

[3] Jeffrey Rosen, “Supreme Court Inc.,” New York Times Magazine, March 16, 2008, http://www.nytimes.com/2008/03/16/magazine/16supreme-t.html?pagewanted=all&_r=1& .

[4] Christopher J. Casillas, Peter K. Ens, and Patrick C. Wohlfarth, “How Public Opinion Constrains the U.S. Supreme Court,” American Journal of Political Science, vo. 55, No. 1, January 2011 (p. 2 of on-line version, available at http://falcon.arts.cornell.edu/pe52/CEW_ajps2011.pdf) .

[5] Ibid., p. 2.

[6] Howard Zinn, A People’s History of the United States: 1492–Present (New York: HarperCollins, 2003), 448.

[7] Ibid., 449.

[8] Kathryn Buschman Vasel, “Supreme Court Rules ObamaCare is Constitutional,” Fox Business News, June 28, 2012, http://www.foxbusiness.com/industries/2012/06/28/health-care-supreme-court/

[9] Yves Smith, “The Democrats’ Dubious Record on the Supreme Court,” Naked Capitalism, October 29, 2012,  http://www.nakedcapitalism.com/2012/10/the-democrats-dubious-record-on-the-supreme-court.html.

[10] David Sirota, “Romney or Obama and the Supreme Court: Does It Even Matter?” Salon, Nov. 1, 2012, http://www.salon.com/2012/11/01/romney_or_obama_and_the_supreme_court_does_it_even_matter/.

[11] Rosen, “Supreme Court Inc.”

[12] Ibid.

[13] Glenn Greenwald, “The Case Against Elena Kagan,” Salon, April 13, 2010, http://www.salon.com/2010/04/13/kagan_3/ .

[14] Guy-Uriel Charles, Anupam Chander, Luis Fuentes-Rohwer and Angela Onwuachi-Willig, “The White House’s Kagan Talking Points Are Wrong,” Salon, May 7, 2010, http://www.salon.com/2010/05/07/law_professors_kagan_white_house/.

[15] Jeffrey Rosen, “The Case Against Sotomayor: Indictments of Obama’s Front-Runner to Replace Souter,” The New Republic, May 4, 2009, http://www.tnr.com/article/politics/the-case-against-sotomayor.

[16] Dave Lindorff, “Sotomayor’s Problem Isn’t That She’s Too Latina,” CounterPunch, May 29-31, 2009, http://www.counterpunch.org/2009/05/29/sotomayor-s-problem-isn-t-that-she-s-too-latina/.

[17] Huma Kahn, “Abortion Rights Groups Wary About Sonia Sotomayor’s Views,” ABC News (http://abcnews.go.com/Politics/SoniaSotomayor/story?id=7699191&page=1#.UIjrl2l27R_).

[18] Sirota

[19] Rosen, “Supreme Court Inc.”