Why It’s Past Time to Defy the Supreme Court

Our democracy is in a crisis, with many thoughtful and not-prone-to-hysteria commentators wondering out loud if the Republican embrace of Trumpism has gone so far that it may take the entire country over the edge.

A brilliant recent analysis is Thomas Edsall’s article in the New York Times, How to Tell When Your Country Is Past the Point of No Return, bookended by Barton Gellman’s shocking piece in The Atlantic, Trump’s Next Coup Has Already Begun.

Both deal with the immediate crisis brought to us by the six years that Trump has dominated the American political scene and his takeover of the Republican Party.

But neither is addressing the core problem America is facing that helped bring us Trump, but goes deeper than him: money.

Specifically, money — bribery — in politics that has been legalized and expanded by reactionary “conservatives” on the Supreme Court.

But what if Congress could tell the Supreme Court it disagrees that bribery of politicians should be legal, constitutional, and takes its own steps to solve that problem?

The majority of Americans, for example, want their drug prices to be reasonable like they are in Canada or Europe: the reason we pay as much as 10 times more than citizens of those countries is because the Supreme Court made it legal for the big drug companies and their lobbying groups to bribe our federal politicians.

The same is true for a wide variety of issues where federal law is wildly at odds with what the public wants fixed:

+ almost $2 trillion in student loan debt

+ strengthening Social Security and Medicare

+ bankster bailouts

+ health insurance ripoffs

+ billions in subsidies to the fossil fuel industry

+ billionaires paying 1% to 3% in income taxes (and corporations paying nothing) while average folks get soaked

+ 60,000+ factories moved offshore (along with tens of millions of good-paying jobs)

+ employers like Amazon and Kellogg’s engaging in blatant unionbusting

+ internet companies tracking your every move and every keystroke and then selling that information without your permission

+ climate change

Every single one of these problems continue to exist in the face of overwhelming public disapproval because one or another industry or group of rightwing billionaires has been empowered by the Supreme Court’s Citizens United decision to bribe politicians.

Americans watch with their jaws on the floor as Senator Sinema and the “corporate problem solvers” in the House take obscene piles of cash from Big Pharma and then refuse to vote to stop drug-price ripoffs.

There was a time in America when this was a crime called “bribery” and the overall process was called “political corruption.”

In particular, after the 1970s scandals involving both President Nixon and Vice President Agnew taking outright bribes, Congress put laws into place to stop elected officials from putting donor interests above those of voters and the nation.

But that was then and this is now.

Five “conservatives” on the Supreme Court gutted those laws with their 2010 Citizens United decision, over the loud objections of their four colleagues.

Democrats in Congress need to reverse that bizarre and nation-destroying decision with a new law declaring the end to this American political crime spree, and re-criminalize bribery of elected officials.

And they need to do it in a way that defies the Court’s declaration that money is “free speech” and corporations are “persons.”

That defiance requires something called “court stripping.“

Republicans understand exactly what I’m talking about: they tried to do the same thing most recently in 2005 with the Marriage Protection Act, which passed the House of Representatives on July 22, 2004.

That law, designed to override Supreme Court protections of LGBTQ people, contained the following court stripping paragraph:

“No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, section 1738C or this section.”

In other words, Congress wrote that this law is consistent with the constitution, and that they are deciding that…and the Supreme Court, with regard to the Marriage Protection Act, has no say in the matter.

This assertion that each of the three branches should have its own opinions about a law’s constitutionality, is consistent with a view of the Supreme Court expressed at various times by both Alexander Hamilton and Thomas Jefferson, among numerous others of the Founders.

There is literally nothing in the Constitution that gives the Supreme Court the exclusive right to decide what the Constitution says: that is a power the Supreme Court took onto itself in 1803 in a decision, Marbury v Madison, that drove then-President Jefferson nuts. He wrote:

“[O]ur Constitution…has given — according to this opinion — to one of them alone the right to prescribe rules for the government of the others; and to that one, too, which is unelected by and independent of the nation… The Constitution, on this hypothesis, is a mere thing of wax in the hands of the Judiciary which they may twist and shape into any form they please.“

Court stripping when it came to constitutionality was how this country operated for its first 70 years, including when all the men who wrote the Constitution were alive and in our government.

The Supreme Court only ruled twice between the 1789 signing of the Constitution and the 1860s on a constitutional issue, and in each case both Congress and the president at the time ignored the ruling.

The first was President Andrew Jackson when the court ruled the Second National Bank was constitutional and Jackson shut it down anyway, claiming it wasn’t. He said:

“The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others… The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both.”

And then President Abraham Lincoln chose to explicitly ignore the Supreme Court’s confirmation of chattel slavery in its 1856 Dred Scott v Sanford decision, as did Congress, and even went on to free enslaved Americans before the Court could weigh in again.

In the year before his presidency when campaigning for office, Lincoln even mocked his opponent, Stephen A. Douglas (during the first Lincoln-Douglas debate) to “Roars of Laughter” for “respecting” Judge Taney and saying he’d go along with the Dred Scott decision if elected president.

When Republicans were pushing court stripping from the 1950s until they recently lost control of Congress, they constantly cited this long history of the practice.

The Marriage Protection Act died in the Senate, but it’s one of over a hundreds of pieces of court stripping legislation introduced — almost all by Republicans (House Whip Tom Delay was the master of this) — in the wake of the Supreme Court’s decisions in Brown v Board and Roe v Wade, tried to use court stripping to dial back the Court’s efforts to protect women and racial or gender minorities.

If it was worth trying for Republicans — and drew wide public support while having a strong influence, causing the Court to change its position on issues from guns to abortion — why wouldn’t it work for Democrats?

This process of “court stripping” is based in Article 3, Section 2 of the US Constitution, which says:

“…the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

Regulations? Exceptions?!?

Turns out the Constitution says Congress can Regulate the Court by setting the number of their members, determining if their hearings have to be public/televised, or if they must live by the Judicial Code of Conduct (among other things).

And Congress can create “Exceptions” to the things the Court can rule on.

It defines a process where Congress decides what is constitutional and then informs the Court through legislation. In today’s crisis, Congress could say, “Supreme Court, you may no longer rule on whether money in politics is ‘free speech.’ We’re taking that power because the Constitution gives it to us and you have screwed it up so badly.”

And, it turns out, Congress has already gone there, most recently creating exceptions to what our courts may do in a law that was passed and signed by President Bush the very next year: The Detainee Treatment Act of 2005.

That law explicitly strips from federal courts — including the Supreme Court — most of their power to hear appeals against the Bush administration detaining, torturing, imprisoning in Guantanamo, or even killing suspected Muslim terrorists.

It says: “[N]o court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba…”

And that’s just the beginning.  There’s even, as the Brennan Center notes, a court stripping provision in the PATRIOT act of 2001.

As you can read in the book excerpt below if you’re interested in the history and John Roberts’ gory details, the Supreme Court has recognized this congressional limitation on their own power virtually from the beginning of our republic.

And that’s what got Ronald Reagan and the GOP so excited in the 1980s.

If there had been enough public outrage about the Supreme Court to go along with them, they believed they could overturn both Brown v Board and Roe v. Wade, bringing back “Blacks only” schools, pools and water fountains, while putting women back in the kitchen. (As you can see, this idea can cut both ways.)

The guy who really brought court stripping to the fore during the Reagan administration was a young lawyer named John Roberts, who compiled a huge history of case law and precedents that could be used by Congress to justify overturning Brown and Roe. (see book excerpt below for details)

Today, he’s Chief Justice of the Supreme Court, and his background in researching court stripping for Reagan may be why he worried out loud — after the Texas Abortion Vigilante law arguments —that the Court’s credibility and power are now at risk like never before.

The problem, specifically, was that the Texas law is just the newest wrinkle in court stripping.

Instead of forbidding the Supreme Court from ruling on its constitutionality, the Texas abortion law simply uses its vigilante provision as a way around the Court altogether: an innovative new form of court stripping.

And to add insult to injury, this time it wasn’t the United States Congress that was stripping the Supreme Court or any other lower court of its power, it was a state legislature!

“If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments,” Roberts wrote last week, “the Constitution itself becomes a solemn mockery.  The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.”

After all, the Supreme Court has no police force to enforce its edicts, no army to facilitate its decisions, nor even control over its own budget, which is in the hands of Congress. It draws its legitimacy, and thus its power, from the agreement of the other two branches and the public.

Odds are small that any legislation reimposing limits on money in politics that directly contradicts Citizens United would today become law — there are just too many bought-off politicians now, from virtually the entire GOP to a large handful of Democrats — but taking it seriously and making it high profile would stir public debate.

It may even cause the Court to reconsider Citizens United.

After all, the last time their authority and credibility was seriously challenged was by President Franklin D. Roosevelt in 1937 when they threatened to declare Social Security unconstitutional. FDR threatened to replace all five justices on the Court over 70 years old — instant term limits — and most of the public was with him.

He backed them down, stirred up nationwide outrage, and they changed their mind (it was called “the switch [of opinion] in time that saved nine [justices]”), allowing Social Security, child labor, unemployment insurance and other progressive laws to go ahead, positions that hold to this day.

History shows that the Court does respond to pressure, and particularly fears loss of their own power and credibility.

As Tom Delay said back in the days of his court-stripping Marriage Protection Act: “Judges need to be intimidated” and “Congress should take no prisoners in dealing with the courts.”

Putting forward such a law would highlight how Citizen United’s “SCOTUS-legalized political bribery” is at the core of our political dysfunction, as rightwing oligarchs and giant corporations have taken total control of the entire GOP and corrupted more than a few Democrats, while polluting our public discourse with their think tanks and media outlets.

Congress needs to stand up for what’s right and consistent with widely-believed American values, and legally bribed politicians isn’t that. It’s time to end the bribery and get something done for the people, for a change.

+++

What follows is an excerpt from my book The Hidden History of the Supreme Court and the Betrayal of America that highlights Chief Justice Roberts’ 1980s opinions on court stripping:

The year 1981 was a big one for court-stripping—or, as it’s sometimes called, jurisdiction-stripping. No fewer than 30 pieces of legislation were introduced that year into the US House of Representatives by Republican congressmen that included court-stripping provisions. It was a huge topic of discussion and legal activity among Republicans.

And a young lawyer working in Ronald Reagan’s Justice Department, an up-and-comer named John Roberts, was hot on the trail. …

The Roberts Plan to Strip the Courts

Reagan’s administration brought together a constellation of conservative white men to change the post-Civil Rights Act face of America. Ted Olson, who later argued Bush v. Gore before the US Supreme Court, led the Justice Department’s Office of Legal Counsel. As an assistant attorney general, Olson worked with counselor to the attorney general Ken Starr (appointed to that job in 1981), who was later (1989-1993) George H. W. Bush’s solicitor general. Other new faces Reagan hired into the White House included Samuel Alito and John Roberts.

Starr tasked Roberts, a staunchly antiabortion Catholic, with reviewing the entire history of the US Supreme Court, looking for cases that suggested a legislative or administrative way to overturn Roe v. Wade and possibly even Brown v. Board.

Roberts wrote an extraordinary 27-page document that’s today almost unknown. It took the form of a memo on the letterhead of the Office of the Attorney General to Ken Starr, signed by Roberts as special assistant to the attorney general. It is titled, “Proposals to Divest the Supreme Court of Appellate Jurisdiction: An Analysis in Light of Recent Developments.”

Roberts wrote that he had found “over twenty bills [then pending in Congress] which would divest the Supreme Court (and, in most instances, lower federal courts as well) of jurisdiction to hear certain types of controversies, ranging from school prayer and desegregation cases to abortion cases.”

What Roberts and his researchers found was substantial.

Court-stripping is based on the Exceptions Clause of Article III, Section 2, of the Constitution, which stipulates that the courts exist “with such Exceptions, and under such Regulations as the Congress shall make.”

Roberts noted eagerly in his memo that “the exceptions clause by its terms contains no limit. . . . This clear and unequivocal language is the strongest argument in favor of congressional power and the inevitable stumbling block for those would read the clause in a more restricted fashion.” [iv]

Roberts was looking at the nuclear option. If he could build a strong case for Congress passing a law against abortion (or against desegregation), and persuade Congress to use the Exceptions Clause to render the courts moot, then this could be the magic bullet to restore segregation and recriminalize abortion!

Roberts concluded with a 1968 comment from Sam Ervin of North Carolina, one of the Senate’s most outspoken opponents of racial integration and abortion.

He wrote, “As Senator Ervin noted during hearings on the exceptions clause, ‘I don’t believe that the Founding Fathers could have found any simpler words or plainer words in the English language to say what they said, which is that the appellate jurisdiction of the Supreme Court is dependent entirely upon the will of Congress.’”

Roberts agreed: “[W]e are not considering a constitutional clause that is by its nature indeterminate and incapable of precise or fixed meaning, such as the due process clause or the prohibition on unreasonable searches and seizures.”

This was clearly the original intent, Roberts argued, because “the exceptions clause ‘was not debated’ by the Committee of Detail which drafted it, or the whole Convention.”[v]

Citing the Federalist, no. 81, Roberts wrote, “Hamilton noted that the clause would enable ‘the government to modify [appellate jurisdiction][vi] in such a manner as will best answer the ends of public justice and security,’ and that appellate jurisdiction was ‘subject to any exceptions and regulations which may be thought advisable.’”

Section III of Roberts’s screed on court-stripping dives deep into Supreme Court decisions to find rulings explicitly saying that Congress can regulate the Supreme Court and block the Court from ruling on particular issues.

Beginning with the 1869 decision Ex parte McCardle, Roberts wrote, “A unanimous Court upheld the power of Congress to divest the Supreme Court of jurisdiction. The Court clearly based its decision on Congress’ power under the exceptions clause. Chief Justice Chase began the opinion by recognizing that the appellate jurisdiction of the Court “is conferred ‘with such exceptions and under such regulations as Congress shall make.’”

Quoting Chase again, Roberts added his own emphasis: “We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this Court is given by express words [emphasis Roberts’s].”

He continued his historical exposé of court-stripping with another 1869 decision, Ex parte Yerger, and then United States v. Klein (1872), Wiscart v. Dauchy (1796), Durousseau v. United States (1810), Daniels v. Railroad (1865), and The Francis Wright (1881).

In The Francis Wright, Roberts found that Chief Justice Morrison R. Waite (whose Court oversaw the infamous 1886 “corporate personhood” Santa Clara County v. Southern Pacific Railroad case) wrote for a unanimous Court, quoting him as follows: “Not only may whole classes of cases be kept out of the jurisdiction altogether, but particular classes of questions may be subjected to re-examination and review, while others are not.”[vii]

Each case strengthened the idea that Congress could simply pass a law, without even needing a supermajority, that barred the Supreme Court from ruling on a set of issues—like Reagan’s hot-button issues of school desegregation and abortion.

Moving toward late-19th-century decisions, Roberts quoted the Court in Colorado Central Consolidated Mining Co. v. Turck (1893): “[I]t has been held in an uninterrupted series of decisions that this Court exercises appellate jurisdiction only in accordance with the acts of Congress upon the subject.”

Roberts, in his own voice, added, “Again, it bears emphasis that the basis for this theory is the implicit exercise by Congress of its exceptions power when it makes a limited grant of jurisdiction.”

Court-Stripping in the 20th Century

Still building his case, Roberts jumped into 20th-century rulings, starting with National Mutual Insurance Co. v. Tidewater Transfer Co. (1948). Writing for the majority, Justice Felix Frankfurter noted in the decision, “Congress need not give this Court any appellate power; it may withdraw appellate jurisdiction once conferred and it may do so even while a case is sub judice.”[viii]

About the 1944 Yakus v. United States case, Roberts wrote, “Justice Rutledge noted . . . that ‘Congress has plenary power to confer or withhold jurisdiction.’”

Regarding Flast v. Cohen (1968), Roberts quoted from Justice William O. Douglas, who wrote, “[A]s respects our appellate jurisdiction, Congress may largely fashion it as Congress desires by reason of the express provisions of Section 2, Article III. See Ex parte McCardle.”

In Section IV of his memo, Roberts again went back to the framing of the Constitution and brought us up to the present day, quoting another dozen or so cases that referenced, less directly, the power of Congress to exempt the Court from certain issues or decisions.

Roberts also noted that the original Judiciary Act (which created the federal court system) also refers to Congress’s power of exception.

Roberts and many of his colleagues in the Reagan administration and the Republicans in Congress believed that if school desegregation and legalized abortion stood, their (and their base voters’) white male power was in real danger of being diminished. It was an existential emergency to them, as much as a political opportunity.

In the face of such an emergency, they seriously considered—and tried more than 30 times that year in Congress—a nuclear option that had never been used in a big way before: court-stripping.

Notes.

[i] “Richard Land and Southern Baptists’ Race Problem” by Jonathan Merritt in the Huffington Post   https://www.huffingtonpost.com/jonathan-merritt/richard-land-and-the-southern-baptist-race-problem_b_1430019.html

[ii] Abortion, Race, and Gender in Nineteenth-Century America AMERICAN SOCIOLOGICAL REVIEW, 2004, VOL. 69 (August:498–518) #1704-ASR 69:4

[iii] “The evangelical presidency: Reagan’s dangerous love affair with the Christian right and How Reagan’s landslide victory in 1980 made the Moral Majority a force to be reckoned with in American politics” Stephen P. Miller May 18, 2014 Salon https://www.salon.com/2014/05/18/the_evangelical_presidency_reagans_dangerous_love_affair_with_the_christian_right/

[iv] https://www.archives.gov/files/news/john-roberts/accession-60-88-0498/014-supreme-court-jurisdiction/folder014.pdf

[v] Ibid.

[vi] Bracketed insert contained within Roberts’ original memo

[vii] https://caselaw.findlaw.com/us-supreme-court/105/381.html

[viii] https://caselaw.findlaw.com/us-supreme-court/337/582.html

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