The other crisis with the Supreme Court is the political nature of the rulings of the six radical, right-wing justices who upend precedents, the rule of law, and democratic norms to achieve what certainly appear to be predetermined outcomes. Twice before in U.S. history the Supreme Court has attempted to grab reactionary dictatorial power. Ultimately, the voters will decide if this is the course they want America to pursue.

(Note: If you find my posts too much to read on occasion, please just read the bolded portions. They present the key points I’m making.)

SPECIAL NOTE: I’ve created a new website for my blog that’s more user-friendly. The Latest Posts are presented chronologically here: https://www.policyforthepeople.org/blog. The new home page, where posts are presented by topics, is here: https://www.policyforthepeople.org/. If you like the new format, please click on the Subscribe Today button and subscribe. Any comments on the new site or the content of the posts are most welcome. The Word Press site will continue to be available.

The other crisis with the Supreme Court, in addition to the financial and conflict of interest scandals of individual justices, is the political nature of the rulings of the six radical, right-wing justices. (See this previous post for an overview of the ethical scandals of the Supreme Court justices and some possible fixes.) They have upended well-established legal precedents, long-standing procedural practices, and vital democratic norms. They have created a crisis by aligning themselves with the reactionary, white, evangelical Christian, nationalist, right-wing of the Republican Party. By taking on cases designed to provide a venue for achieving their political and ideological goals, and by making rulings consistent with these goals rather than with the rule of law, they are grabbing dictatorial power and attempting to govern the country from the Court. [1]

Recent Supreme Court rulings threaten generations of progress toward real democracy and the achievement of the principles set forth by our founding fathers and documents. The six right-wing justices are not constitutional originalists or textualists, or conservatives; they are radical reactionaries undermining the Constitution and democracy with almost every ruling. (See this previous post for an explanation of why radical and reactionary are the appropriate descriptors for these six justices.)

Twice before in the 233-year history of the Supreme Court similar crises have occurred. In both cases, as today, the thrust was reactionary – an attempt to return America to a past idealized by a subset of the population.

The first crisis was in the 1850s when the Court, dominated by slaveholders, tried to entrench white supremacy and slavery in America. The key event was the Dredd Scott decision, which ruled that a person of African descent was not a citizen, could not sue in federal court, and basically could never achieve freedom. The decision is widely viewed as a significant contributing factor to the occurrence of the Civil War.

The second crisis was in the 1930s when the Court, in the face of the Great Depression, tried to block President Roosevelt’s efforts to restructure the economy with a more level playing field through workers’ rights and protections, as well as a commitment to economic justice and equal opportunity. The Court’s rulings protected the wealth and privilege of the economic elites and barred any government establishment of a right to human dignity or equality for others.

From an issue-based perspective, the current court has ignored long-standing precedents in ending abortion rights, dramatically expanding gun rights, and limiting the executive branch’s power to promulgate regulations, including to address the climate crisis. From a process perspective, the Court has expanded its power and upended established procedures through the frequent use of emergency orders and what’s referred to as the “shadow docket.” With these orders, the Court can step into cases in lower courts and make rulings without allowing trials, briefings, oral arguments, or friend-of-the-court filings. It typically issues these rulings with no explanation and almost always presents victories to politically favored litigants or causes. These shadow docket rulings have been used aggressively and have been a significant contributor to the achievement of the political goals of the six right-wing justices.

The overarching result is that nothing can be viewed as settled law and that the rule of law has been replaced by the rule of the white, evangelical Christian, nationalist, reactionary ideology of the six right-wing justices. The presence of these six justices on the Court is the result of a decades-long effort, spearheaded by the Federalist Society, by right-wing Republicans and their billionaire backers. The current revelations of financial and other connections between the six justices and right-wing billionaires and Republicans are just the tip of the iceberg of concerted efforts to have right-wing interests favored by the Court.

The crisis of the Supreme Court’s political decision-making is likely to be evident in a number of major cases in the 2023 term. The court recently agreed to hear a case that could gut the government’s ability to regulate business. In this case, the Court will reconsider the 1984 Chevron v. Natural Resources Defense Council decision, which affirmed that judges should defer to executive branch agencies’ reasonable interpretation of a law if the wording of the law is unclear or unspecific. The six right-wing justices seem likely to reject this precedent, which would allow judges to second guess regulations according to their own interpretations of laws. [2]

The Court will also consider and rule on a case based on the independent legislature theory, which asserts that only state legislatures (and not state or federal courts) may regulate, supervise, and ultimately decide elections. This would apply to federal elections for president and Congress, not just state office elections. It would, at least in theory, allow a state legislature to decide the outcome of an election regardless of the will of the voters. In particular, it would allow a state legislature to send a different set of electors to the Electoral College in a presidential election than those chosen by voters.

In 2023, the Court will also take up a case that would allow it to end affirmative action in college admissions and another one that would allow it to dramatically cut back the few remaining voter protections of the Voting Rights Act. Also of note, a group of landlords is preparing to ask the Court to overturn rent control in New York City, a change in law supported by Crow Holdings. This case would again put Justice Thomas and his relationship with Harlan Crow in the spotlight. If the case does come before the Court, it will be interesting to see if Thomas recuses himself. He hasn’t in similar situations in the past.

In conclusion, the politicization of the Supreme Court and the alignment of a six-justice majority with the radical, reactionary, white, evangelical Christian, right-wing of the Republican Party have not only undermined the Court’s legitimacy, but also the rule of law, a foundational principle of American democracy and exceptionalism. Numerous other institutions and processes of democracy are being undermined as well.

Ultimately, the voters will determine the future of the Court. They can vote to protect their rights and lives from the Court’s radical, reactionary rulings by shifting power in Congress and the White House away from the Republican Party. This would allow legislative and appointment powers, over time, to repair the Court and the damage that’s been done.

[1]      Epps, G., 10/30/22, “The Court’s third great crisis,” Washington Monthly (https://washingtonmonthly.com/2022/10/30/the-courts-third-great-crisis/)

[2]      Cox Richardson, H., 5/1/23, “Letters from an American blog,” (https://heathercoxrichardson.substack.com/p/may-1-2023)

New revelations about questionable financial relationships and possible conflicts of interest of Supreme Court justices seem to be uncovered almost every day. The failure of Chief Justice Roberts to address these scandals further undermines the credibility of the Court. The failures of justices to recuse themselves from Supreme Court cases where conflicts of interest seem apparent call into question many of the Court’s decisions where the outcomes would have been different if recusals had occurred. The political nature of the rulings of the six radical, right-wing justices becomes clearer and clearer as they upend precedents and democratic norms to achieve what seem to be predetermined outcomes. Legislation has been proposed to force the Court to institute a code of ethics. (See this previous post for an overview of ethical issues with Supreme Court justices and this post for a summary of Justice Thomas’s ethical scandals.)

(Note: If you find my posts too much to read on occasion, please just read the bolded portions. They present the key points I’m making.)

SPECIAL NOTE: I’ve created a new website for my blog that’s more user-friendly. The Latest Posts are presented chronologically here: https://www.policyforthepeople.org/blog. The new home page, where posts are presented by topics, is here: https://www.policyforthepeople.org/. If you like the new format, please click on the Subscribe Today button and subscribe. Any comments on the new site or the content of the posts are most welcome. The old site will continue to be available.

New revelations about the questionable financial relationships of Supreme Court justices seem to be uncovered almost every day. One new tidbit is about Justice Gorsuch’s sale of property. As previously reported, the almost $2 million sale was to an individual not identified on Gorsuch’s financial disclosure, but who turned out to be the CEO of a major law firm that has had 22 cases before the Court since the purchase. The new tidbit is that the property had been on the market for two years before the sale, which occurred just nine days after Gorsuch was confirmed to the Supreme Court. [1]

Possible conflicts of interest are present in the George Mason University Justice Scalia Law School’s relationships with three of the radical, right-wing Supreme Court justices, Gorsuch, Kavanaugh, and Thomas, who have been hired as faculty members. For Gorsuch and Kavanaugh this has included handsomely paid (almost $30,000) two-week teaching gigs in Europe that seem more like subsidized vacations than work. All three of them have used Supreme Court staff to support their activities at the school despite a judicial advisory opinion that states that staff members should not support justices “in performing activities for which extra compensation is to be received.” These justices (and others) have also been recruited to be lecturers and special guests at school events. They have also attended fundraisers for the school even though Supreme Court Justices are not supposed to be involved in any fundraising activity. [2]

The dean of the law school, Henry Butler, has bragged to donors about his close ties to Supreme Court justices and he invited Justice Gorsuch on a junket to Montana to meet with a property rights group (where Butler is on the Board of Directors). The invitation was made a month after the Supreme Court decided to hear a property rights case of interest to the group. Faculty at the law school frequently submit friend-of-the-court briefs on cases before the Supreme Court that these justices rule on because they don’t recuse themselves. [3]

The law school was named after deceased Justice Antonin Scalia after right-wing power broker Leonard Leo engineered $30 million in gifts to the school in support of the renaming. The Charles Koch Foundation (of the Koch brothers, billionaire funders of many right-wing political activities) gave $10 million with the other $20 million coming from an anonymous donor. This donor is widely believed to be Barre Seid, who later gave $1.6 billion to a right-wing political group controlled by Leo.

On April 25, 2023, Chief Justice Roberts refused the Senate Judiciary Committee’s request that he testify before it about the scandals with Supreme Court justices. Roberts noted in his response that the justices subscribe to a statement of ethics principles and practices, which he attached. The Democrats on the Judiciary Committee responded with a letter saying: “It is noteworthy that no Justice will speak to the American people after numerous revelations have called the Court’s ethical standards into question, even though sitting Justices have testified before Senate or House Committees on at least 92 occasions since 1960.” They asked when the justices had agreed to the statement of ethics. Roberts stated that the justices had agreed to the ethics statement on April 25, 2023. [4]

None of the Republicans on the Judiciary Committee signed on to the request to Roberts. This may be due in part, as was recently revealed, to the fact that since 2001 the nine of them have each received campaign contributions from Harlan Crow that total at least $457,000 for the group. Crow, of course, is the same right-wing billionaire who has given millions in gifts to Justice Thomas that Thomas didn’t report. The Committee has sent a letter to Crow requesting that he provide full details of his financial ties and gifts to Thomas and other Supreme Court Justices. [5]

The Judicial Conference of the United States, a body of federal judges led by Chief Justice Roberts, is legally mandated to oversee administrative and policy issues of the federal court system. It is reportedly considering the matter of Justice Thomas’s conduct. It would certainly appear that it has plenty of information to warrant a referral of Thomas to the Attorney General for an investigation of violations of federal ethics and disclosure laws. [6]

The intertwined relationships between the six radical, right-wing justices and the wealthy individuals funding the right-wing of the Republican Party (as well as a network of powerful political organizations) have produced a definite appearance of conflicts of interest, if not actual quid pro quo corruption. This is underscored by the consistency of their rulings favoring right-wing causes and the business and political interests of these wealthy, right-wing “friends” of the Court. The frequency with which long-standing legal precedents and judicial processes are thrown out to the benefit of these interests gives clear credence to charges that these six justices are driven by politics and not the law. These rulings have dramatically undermined the rule of law and our democracy. It is important to note that any number of the justices’ votes in key decisions, many of them by 5 – 4 tallies, were ethically compromised by apparent conflicts of interest and their failures to recuse themselves. The outcomes of many of these cases would have been different if they had recused themselves.

On April 26, Senators Angus King (I-ME) and Lisa Murkowski (R-AK) introduced the Supreme Court Code of Conduct Act. The bill would require a Supreme Court code of ethics and avoid any separation of powers concerns by requiring the court to write its own code of conduct and appoint an official to review possible conflicts of interest and public complaints. It’s a straightforward bill to address the ethical scandals at the Court and at least begin to restore the public’s confidence in the Court. [7] Even before these scandals erupted, proposals had been put forward to counter the radical behavior of the six right-wing justices by expanding the size of the Court with new justices and / or by instituting term limits to ensure regular turnover on the Court so that it couldn’t be politically manipulated.

Ultimately, the voters will determine the future of the Court. Their reactions to the Court’s rulings and behavior will affect their voting. Some of the justices, seeing this, may moderate their rulings as occurred in the 1930s when Franklin Roosevelt was President and his policies were being blocked by the Court. Or the voters may shift the power in Congress and the White House away from the Republican Party with which the six justices are in cahoots, thereby allowing legislative and appointment power to repair the Court over time.

My next post will take a step back and look at the Supreme Court from the broader perspective of its alignment with the radical, reactionary, right-wing of the Republican Party. This politicization and the Court’s related actions have not only undermined the Court’s legitimacy, but also the rule of law, a foundational principle of American democracy and exceptionalism, and other institutions of democracy as well.

[1]      Cox Richardson, H., 5/1/23, “Letters from an American blog,” (https://heathercoxrichardson.substack.com/p/may-1-2023)

[2]      Eder, S. & Becker, J., 4/30/23, “How Scalia Law School became a key friend of the Court,” The New York Times

[3]      Levy, P., 5/2/23, “The Dobbs leak didn’t wreck the Supreme Court – the justices’ scandals did,” Mother Jones (https://www.motherjones.com/politics/2023/05/supreme-court-scandals/)

[4]      Cox Richardson, H., 5/1/23, see above

[5]      Stancil, K., 5/9/23, “Billionaire Harlan Crow also bankrolled GOP lawmakers blocking SCOTUS ethics reform,” Common Dreams (https://www.commondreams.org/news/harlan-crow-senate-judiciary-committee-republicans-supreme-court-reforms)

[6]      Levy, P., 5/2/23, see above

[7]      Cox Richardson, H., 5/1/23, see above

The relationship between Supreme Court Justice Thomas and right-wing billionaire Harlan Crow is a major ethical scandal. Justice Thomas’s wife’s activities also present significant conflicts of interest. The fact that Justice Thomas has failed to report relevant and required information about these potential conflicts not only deepens the scandal but in some cases is also a clear violation of federal law. The failure of Thomas to recuse himself from Supreme Court cases where these issues are relevant makes this a truly unbelievable breach of judicial ethics and calls into question many of the 5 – 4 Court decisions whose outcome would have been different if Thomas had recused himself. All of this has severely damaged the credibility of the Supreme Court. (See this previous post for an overview of ethical issues with Supreme Court justices and the damage that’s been done to the Court.)

(Note: If you find my posts too much to read on occasion, please just read the bolded portions. They present the key points I’m making.)

SPECIAL NOTE: I’ve created a new website for my blog that’s more user-friendly. The Latest Posts are presented chronologically here: https://www.policyforthepeople.org/blog. The new home page, where posts are presented by topics, is here: https://www.policyforthepeople.org/. If you like the new format, please click on the Subscribe Today button and subscribe. Any comments on the new site or the content of the posts are most welcome. The old site will continue to be available.

There are numerous scandalous elements to the relationship between right-wing billionaire Harlan Crow and Justice Thomas, which they claim are only reflections of their friendship. It’s relevant to note that they only became “friends” in 1996 AFTER Thomas joined the Supreme Court in 1991. This certainly makes one wonder if Crow’s interest in this friendship was about more than friendship. The relationship has included: [1] [2]

• Free vacations in Indonesia, the Caribbean, and the Baltics and Russia for Thomas and his family, each of which is estimated to be worth at least $500,000. This is well in excess of the requirement to report gifts of over $415. The vacations don’t qualify for the exemption from reporting for personal hospitality because they weren’t at Crow’s personal home and, therefore, federal rules require them to be disclosed.
• Numerous trips on Crow’s private jet over the last 25 years are clearly required to be reported on Thomas’s mandatory annual financial disclosure form but have not been.
• Regular summer vacations at Crow’s Adirondack Mountains resort, which is owned by a corporation not personally by Crow. Therefore, they don’t qualify for the exemption of personal hospitality from required reporting.
• Crow’s purchases of multiple real estate properties from Thomas and his family for over $100,000, including the home where Thomas’s mother lived rent-free and where renovations were done at Crow’s expense. Thomas did not disclose the purchases, despite federal law requiring officials, including Supreme Court justices, to disclose real estate transactions over $1,000. [3]
• Crow’s payment of tuition at private high schools for the grandnephew of Justice Thomas who lived with Thomas and his wife for 13 years and for whom Thomas was the legal guardian. The tuition was $25,000 to $30,000 a year, except for one year at a special school where it was $70,000. Crow paid at least $100,000 of this tuition. Thomas did not report the tuition from Crow on his annual financial disclosures, although he did report as a gift $5,000 from another friend that was for the boy’s education.
• Crow’s gift of $500,000 to a Tea Party organization called Liberty Central founded and run by Thomas’s wife, which paid her a $120,000 salary.
• Crow’s expenditure of more than $2 million to fund a museum at the site of a cannery where Thomas’s mother worked.
• Crow’s $150,000 of financing for a Clarence Thomas wing at the Savannah library.
• Crow’s donation of $105,000 to the Yale Law School for the Justice Thomas Portrait Fund.
• Crow’s gifts to Thomas of a $19,000 bible owned by Frederick Douglass and of a $15,000 bust of Abraham Lincoln.

Justice Thomas has said, and most reporting on the scandal has echoed, that there’s no ethical issue with Crow’s gifts because he didn’t personally have a case come before the Court. While that’s technically true, his business and political interests certainly have had cases before the Court. Crow inherited a large family real estate business. In 2005, an appeal in a $25 million suit against a Crow company came before the Court. (The Court declined to hear the appeal.) [4] A real estate trade association, the National Multifamily Housing Council (NMHC), which has close links to Crow and his businesses, has filed multiple briefs in Supreme Court cases. NMHC is chaired by the CEO of Crow Holdings, Ken Valach, who took over that position from Crow in 2015. NMHC advocates for over 1,000 large residential rental property owners. Three of Crow’s companies are dues paying members and multiple Crow executives serve on its Board of Directors. It has filed briefs with the Court on cases that would impact Crow’s businesses, such as cases involving rent control, racial discrimination in housing, and the Clean Water Act. [5]

In terms of political interests, Crow is an active member of a network that provides substantial funding to right-wing political candidates, institutions, and legal cases. He has spent millions on efforts to transform the law and the federal judiciary, including the Supreme Court, to reflect his right-wing ideology. The right-wing think tank, the American Enterprise Institute, where Crow is on the Board, has filed three briefs with the Supreme Court. (Furthermore, Thomas’s wife, Ginni, has been a paid employee of the Institute.) In 2003, the Club for Growth, a right-wing, free market advocacy group where Crow serves on the Founders’ Committee, filed a brief with the Court in a campaign finance case.

Thomas’s hobnobbing with Crow has brought him into contact with numerous right-wing activists including Leonard Leo, the leader of the Federalist Society. Leo and the Federalist Society are generally regarded as the architects of the successful effort to turn the Supreme Court into a right-wing juggernaut. [6] Leo uses a network of opaque non-profits to support advocacy for a wide range of right-wing causes, including spending millions to influence Supreme Court cases. For example, at least six groups funded by Leo’s network have filed briefs with the Court on a same-sex marriage discrimination lawsuit. Groups in the network are active in opposing affirmative action, LGBTQ rights, and federal oversight of elections. [7]

Leo has also directed tens of thousands of dollars to Thomas’s wife, Ginni. He instructed a Republican pollster, Kellyanne Conway (who would later be in Trump’s White House), and her company, the Polling Company, to pay Ginni Thomas’s recently formed Liberty Consulting company $100,000 in 2011 and 2012. Specifically, in January 2012, Leo told Conway to bill the Judicial Education Project (JEP), a non-profit organization that Leo advised, “another $25,000” to give to Ginni Thomas. He emphasized that the paperwork should have “No mention of Ginni, of course.” Shortly thereafter, the JEP filed a brief with the Supreme Court for a case on the Voting Rights Act. In a 5 – 4 decision, with Justice Thomas voting with the narrow majority, the Court struck down provisions of the Act that protected minority voters, in accordance with the position of the JEP brief. The JEP has since submitted about ten friend-of-the-court briefs to the Supreme Court and Thomas hasn’t recused himself in any of those cases. [8]

Justice Thomas’s wife, Ginni, is deeply involved in right-wing Republican politics, but this has not led Justice Thomas to recuse himself from cases where this would seem to present a conflict of interest. For example, she was deeply involved in efforts to keep President Trump in office and overturn the results of the 2020 election, including being in touch with people at the White House. Nonetheless, Justice Thomas did not recuse himself from the Supreme Court case deciding whether the House committee investigating the January 6^th insurrection could obtain White House records, even though his wife’s communications could have been among those records. By the way, he was the only justice voting that the committee shouldn’t get the records. [9]

By concealing gifts from Crow and potential conflicts of interest from his wife’s activities, Justice Thomas prevented the issue of whether he should recuse himself from being raised as cases were being heard by the Court. He clearly violated judicial ethics by not recusing himself in some of these cases and he clearly violated federal law by not reporting gifts from Crow.

Justice Thomas’s vote was obviously essential in many of the very significant 5 – 4 decisions by the Court. If he should have recused himself in some of these cases, that would have changed their outcomes. One example is the 5 – 4 decision in Shelby County v. Holder, the Voting Rights Act case mentioned earlier. Another example is the 5 – 4 decision in the 2010 Citizens United v. Federal Election Commission case. This decision opened the floodgates for unlimited spending in political campaigns. One result of this decision was that Harlan Crow and his family could now spend much more on campaigns and have much more political influence. Specifically, from 1977 to 2009 the Crow family spent $5 million in total on campaigns or about $160,000 a year. After the Citizens United decision, from 2010 to 2022, the Crows spent over $20 million on campaigns or about $1.6 million a year, roughly ten times as much as they had spent previously. [10]

My next post will share updates on, effects of, and remedies for the ethical scandals of the Supreme Court justices. I apologize for the length of this post (I think it’s the longest one I’ve ever done) but I couldn’t make even an overview of Justice Thomas’s ethical scandals any shorter.

[1]      Blumenthal, P., 4/26/23, “Clarence Thomas said his billionaire friend didn’t come before the Court – but his business interests did,” The Huffington Post (https://www.huffpost.com/entry/clarence-thomas-harlan-crow-business-interests_n_64494a12e4b0d840388c2935)

[2]      Kaplan, J., Elliott, J., & Mierjeski, A., 5/4/23, “Clarence Thomas had a child in private school. Harlan Crow paid the tuition,” ProPublica (https://www.propublica.org/article/clarence-thomas-harlan-crow-private-school-tuition-scotus)

[3]      Conley, J., 4/13/23, “‘He must be impeached’: Clarence Thomas made undisclosed property deal with billionaire megadonor,” Common Dreams (https://www.commondreams.org/news/clarence-thomas-real-estate)

[4]      Tillman, Z., 4/24/23, “Clarence Thomas’s billionaire friend did have business before the Supreme Court,” Bloomberg (https://www.bloomberg.com/news/articles/2023-04-24/clarence-thomas-friend-harlan-crow-had-business-before-the-supreme-court)

[5]      Blumenthal, P., 4/26/23, see above

[6]      Kaplan, J., Elliott, J., & Mierjeski, A., 4/6/23, “Clarence Thomas and the billionaire,” ProPublica (https://www.propublica.org/article/clarence-thomas-scotus-undisclosed-luxury-travel-gifts-crow)

[7]      Kroll, A., Perez, A., & Ramaswami, A., 12/14/23, “Conservative activist poured millions into groups seeking to influence Supreme Court on elections and discrimination,” ProPublica (https://www.propublica.org/article/leonard-leo-scotus-elections-nonprofits-discrimination)

[8]      Brown, E., Boburg, S., & O’Connell, J., 5/4/23, “Judicial activist directed fees to Clarence Thomas’s wife, urged no mention of ‘Ginni’,” The Washington Post

[9]      Levy, P., 5/2/23, “The Dobbs leak didn’t wreck the Supreme Court – the justices’ scandals did,” Mother Jones (https://www.motherjones.com/politics/2023/05/supreme-court-scandals/)

[10]     Stancil, K., 5/2/23, “Thomas’ Citizens United vote enabled billionaire benefactor to boost political power,” Common Dreams (https://www.commondreams.org/news/clarence-thomas-citizens-united-harlan-crow-political-spending)

The Supreme Court’s rulings over the last few weeks on abortion, gun violence prevention, public funding of religious institutions, and the powers of executive branch agencies reflect a political and ideological agenda, not a coherent legal or judicial philosophy. All of them overturned long-standing precedents – something all the justices pledged not to do in their confirmation hearings and something that justices believing in laws and rights “deeply rooted in the nation’s history and tradition” wouldn’t do.

(Note: If you find my posts too long or too dense to read on occasion, please just read the bolded portions. They present the key points I’m making and the most important information I’m sharing.)

The six radical, reactionary justices [1] on the U.S. Supreme Court are justifying their rulings with rationales that are inconsistent and contradictory. This is most evident in their use of the following three principles:

• Belief in a weak federal government and strong state governments (discussed in this previous post),
• Belief in “originalism” or “textualism,” i.e., that the language and meaning of the Constitution and its amendments as and when written should be adhered to (discussed in this previous post), and
• Belief in the legality of laws and rights supporting practices “deeply rooted in the nation’s history and tradition” (see below).

In the June 24, 2022, ruling overturning Roe v. Wade’s establishment of a right to an abortion, the six radical, reactionary justices (Roberts, Alito, Barrett, Gorsuch, Kavanaugh, and Thomas) ruled that the federal government could not constitutionally guarantee this right because it is not “deeply rooted in the nation’s history and tradition.” Apparently, the 50 years since the Roe v. Wade decision is not long enough to be deeply rooted. Nor is the fact that women have quietly had abortions literally forever.

In his majority-supported opinion, Justice Alito relied on an English judge from the 1600s (who believed that some women were witches and that wives were the property of their husbands) to conclude that there is no “deeply rooted tradition” of women being allowed to control their reproductive choices and bodies. If this antiquated worldview is the “tradition” that determines modern liberties, then the only liberties safe from the radical, reactionary justices are the handful of rights expressly mentioned in the Constitution – rights that were enumerated by white, male landowners in the late 1700s. Based on this standard, women’s right to vote is not a “deeply rooted tradition” and would not be recognized without being explicitly stated in the 19^th amendment. This “deeply rooted tradition” criterion also ignores the fact that for the first 129 years of our nation’s history, women were denied the right to vote and thus denied any realistic opportunity to create a “deeply rooted tradition” of bodily autonomy and access to contraception and abortion. [2]

The six radical, reactionary justices misrepresented the nation’s actual history and traditions in their opinion overturning Roe v. Wade. As historian Heather Cox Richardson wrote, “Both the Organization of American Historians and the American Historical Association, the flagship organizations of professional historians in the U.S., along with eight other U.S. historical associations (so far), yesterday issued a joint statement expressing dismay that the six Supreme Court justices in the majority in the Dobbs v. Jackson Women’s Health decision that overturned Roe v. Wade ignored the actual history those organizations provided the court and instead ‘adopted a flawed interpretation of abortion criminalization that has been pressed by anti-abortion advocates for more than thirty years.’ Although the decision mentioned ‘history’ 67 times, [the six justices] ignored ‘the long legal tradition, extending from the common law to the mid-1800s (and far longer in some states, including Mississippi) of tolerating termination of pregnancy before occurrence of ‘quickening,’ the time when a woman first felt fetal movement.’ [The historians note] that ‘[t]hese misrepresentations are now enshrined in a text that becomes authoritative for legal reference and citation in the future,’ an undermining of the ‘imperative that historical evidence and argument be presented according to high standards of historical scholarship. The Court’s majority opinion…does not meet those standards.’” [3]

Justice Alito’s opinion overturning Roe v. Wade states that “Roe was egregiously wrong from the start.” But when he was questioned about his views on Roe during his confirmation hearing, he said, “[Roe] is a precedent that has now been on the books for several decades. It has been challenged. It has been reaffirmed. . . . It would be wrong for me to say … I’ve made up my mind [otherwise] on this issue.” Stating that “Roe has been egregiously wrong from the start” certainly sounds like Alito had “made up his mind on the issue” long before his confirmation hearing but failed to disclose this to the Judiciary Committee. [4] Other justices, most notably Kavanagh and Gorsuch, similarly misled Senators during their confirmation hearings.

In the Supreme Court’s June 23, 2022, decision declaring unconstitutional New York State’s over 100-year-old requirements for obtaining a permit to carry a gun in public, the six radical, reactionary justices ignored the fact that from the nation’s founding until 1959, every legal article about the Second Amendment concluded that it did NOT guarantee an individual’s right to own a gun. That and a 100-year-old law seem like a “deeply rooted tradition” to me. It wasn’t until nearly 200 years after the writing of the Constitution, in the 1970s, that legal scholars funded by the gun and ammunition industry, and its front group the NRA, began to claim that the Second Amendment established an individual right to gun ownership. [5] (See this previous post for more detail on how the interpretation of the Second Amendment changed from supporting a well-regulated militia for the security of the state to  a “right” for individuals to bear arms for self-defense.)

Similarly, the six radical, reactionary justices’ recent rulings overturning decades-old, affirmed precedents on the separation of church and state ignore roughly 200 years of a “deeply rooted tradition” based on the First Amendment language that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” (See this previous post for more detail on specific rulings.) In their June 27, 2022, decision, which allowed a high school football coach to conduct a prayer on the football field with team members and others, the six deciding justices ignored the historical record – this one specific to the case at hand. The justices accepted the claim by the lawyers for the football coach that he had prayed privately and silently, despite the facts that a lower court judge had written that this was “a deceitful narrative” and that Justice Sotomayor, in her dissent, included a photo showing the coach leading players and students in prayer. [6]

In their ruling on June 30, 2022, declaring that the Environmental Protection Agency (EPA) does not have the authority to regulate carbon emissions from power plants, the six radical, reactionary justices rejected Congress’s grant of this authority to the EPA, an executive branch agency. However, such grants of authority have occurred since the first sessions of Congress in 1789. Therefore, what was fine with the Framers and the Founding Fathers themselves, is not constitutional according to the Court’s reactionary majority today. So “deeply rooted tradition” goes out the window when it does not fit with these six justices’ political and ideological agenda. [7]

In conclusion, it’s impossible to believe the six justices’ claims that they are honestly using “deeply rooted tradition” as the rationale for their decisions, given that, all of a sudden, these six justices know better what the Constitution means and what its writers intended than the many decades, and in some cases two hundred years, of precedents established by numerous judges and legal scholars who have gone before them. The long-standing precedents look much more like deeply rooted traditions than the positions these six justices are taking. They are using “deeply rooted tradition” as a smokescreen for acting on the basis of their personal political and ideological beliefs. They are not acting as impartial judges upholding the laws established by the legislative and executive branches of government, but rather they are legislating from the bench as they see fit.

My next post will provide a bit of an overview of the current state of the Supreme Court with these six radical, reactionary justices in control. I’ll identify some next steps that it would be logical for them to take and also share some thoughts on how to fight back.

[1]      See this previous post for an explanation of the appropriateness of calling these six justices radical and reactionary.

[2]      Hubbell, R., 5/4/22, ““The hard path forward,” Today’s Edition Newsletter (https://roberthubbell.substack.com/p/the-hard-path-forward)

[3]      Cox Richardson, H., 7/6/22, “Letters from an American blog,” (https://heathercoxrichardson.substack.com/p/july-6-2022)

[4]      Hubbell, R., 5/5/22, “The law of small numbers,” (https://roberthubbell.substack.com/p/the-law-of-small-numbers)

[5]      Cox Richardson, H., 5/24/22, “Letters from an American blog,” (https://heathercoxrichardson.substack.com/p/may-24-2022?s=r)

[6]      Conley, J., 6/27/22, “Supreme Court takes ‘wrecking ball’ to separation of church and state with prayer ruling,” Common Dreams (https://www.commondreams.org/news/2022/06/27/supreme-court-takes-wrecking-ball-separation-church-and-state-prayer-ruling)

[7]      Hubbell, R., 7/1/22, “We have made it through the worst,” Today’s Edition Newsletter (https://roberthubbell.substack.com/p/we-have-made-it-through-the-worst)

The Supreme Court’s rulings over the last two weeks on abortion, gun violence prevention, public funding of religious institutions, and the powers of executive branch agencies reflect a political and ideological agenda, not a coherent legal or judicial philosophy. All of them overturned long-standing precedents – something all the justices pledged not to do in their confirmation hearings.

(Note: If you find my posts too long or too dense to read on occasion, please just read the bolded portions. They present the key points I’m making and the most important information I’m sharing.)

The six radical, reactionary justices [1] on the U.S. Supreme Court are justifying their rulings with reasoning that is inconsistent and contradictory. There are three important areas where the contradictory nature of the reasoning underlying these rulings is most evident:

• Belief in a weak federal government and strong state governments (discussed in this previous post),
• Belief in “originalism” or “textualism,” i.e., that the language and meaning of the Constitution and its amendments as and when written should be adhered to (see below), and
• Belief in the legality of laws supporting practices “deeply rooted in American tradition” (discussed in a subsequent post).

The Supreme Court’s June 23, 2022, decision declaring unconstitutional New York State’s over 100-year-old requirements for obtaining a permit to carry a gun in public is based on an interpretation of the Second Amendment that gives an individual the “right” to bear arms. This interpretation ignores the first half of the Second Amendment which predicates the right to bear arms on “A well regulated Militia, being necessary for the security of a free State.” An honest originalist could not simply ignore this language. An expanded “right” of individuals to own and carry guns in public does not in any way involve a well-regulated militia (such as the National Guard) nor enhance the security of the state. [2] So much for being true originalists or textualists.

Even ignoring this language from the Second Amendment for a moment, a modern day “right” to bear arms is being applied to arms that could not have been imagined at the time the Constitution was written. If the “right” to bear arms were being applied to muzzle-loading guns that took many seconds to reload, that would align with the original intention of the writers of the Second Amendment. Applying it to guns that can fire multiple bullets per second (and much more lethal bullets too) cannot be said (with a straight face) to be originalism.  (See this previous post for more detail on the history of the interpretation of the Second Amendment as creating a “right” for individuals, as opposed to a militia, to bear arms.)

Similarly, the Supreme Court’s recent rulings overturning decades-old, affirmed precedents on the separation of church and state ignore the First Amendment language that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” (See this previous post for more detail on specific rulings.) The intent seems clear and the amendment has been interpreted since it was written as prohibiting governments at any level from supporting a specific religion. For six supposed “originalists” to come to a different conclusion 200 years later, seems to make it clear that they are not really originalists.

In their ruling on June 30, 2022, declaring that the Environmental Protection Agency (EPA) does not have the authority to regulate carbon emissions from power plants, the six supposed originalist (aka textualist) Supreme Court justices relied on a new rationale found nowhere in the Constitution. In her dissenting opinion, Justice Kagan called out the hypocrisy of the six deciding justices who, while claiming to be originalists, are, in fact, inventing new doctrines to achieve the outcomes they desire. “The current Court is textualist only when being so suits it,” she wrote. “When that method would frustrate broader goals, [new rationales] magically appear as get-out-of-text-free cards.” [3] The ruling in the EPA case overturned grants of authority to executive branch agencies that have occurred since the first sessions of Congress. However, what was fine with the Framers and the Founding Fathers themselves, is not constitutional according to the Court’s reactionary majority today. So originalism or textualism goes out the window when it does not fit with these six justices’ political and ideological agenda. [4]

Many of this year’s rulings by the six radical, reactionary justices (Roberts, Alito, Barrett, Gorsuch, Kavanaugh, and Thomas) overturn long-standing precedents, i.e., legal interpretations and multiple court rulings by the Supreme Court and other courts that have been in place for years, some literally going back 200 years. It belies their claim to be originalists when suddenly, these six justices know better what the Constitution means and what its writers intended than the numerous judges and legal scholars who have gone before them.

Finally, these justices are totally ignoring the preamble to the Constitution, which states,  “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” It’s hard to see any commitment to the general welfare, domestic tranquility, or liberty in their rulings expanding the presence of extremely lethal guns on the streets of America, requiring state and local governments to support religious institutions or practices (even allowing coercion of public school students), or denying women the ability (i.e., liberty) to make decisions about their own pregnancies.

In conclusion, it’s impossible to believe the six justices’ claims that they are pursuing the original intentions of the Constitution and its writers. Rather, they are using “originalism” as a smokescreen for acting on the basis of their personal political and ideological beliefs. They are not acting as impartial judges upholding the laws established by the legislative and executive branches of government, but rather they are legislating from the bench as they see fit.

In my next post, I will review the contradictory and inconsistent nature of the six radical, reactionary Supreme Court justices’ use of their supposed belief in the legality of laws supporting practices “deeply rooted in American tradition.”

[1]      See this previous post for an explanation of the appropriateness of calling these six justices radical and reactionary.

[2]      Johnson, J., 6/23/22, “ ‘Devastating’: Supreme Court blows massive hole in state gun control efforts,” Common Dreams (https://www.commondreams.org/news/2022/06/23/devastating-supreme-court-blows-massive-hole-state-gun-control-efforts)

[3]      Cox Richardson, H., 6/30/22, “Letters from an American blog,” (https://heathercoxrichardson.substack.com/p/june-30-2022)

[4]      Hubbell, R., 7/1/22, “We have made it through the worst,” Today’s Edition Newsletter (https://roberthubbell.substack.com/p/we-have-made-it-through-the-worst)

Note: If you find my posts too long or too dense to read on occasion, please just read the bolded portions. They present the key points I’m making and the most important information I’m sharing.

The Supreme Court’s rulings last week on abortion, a gun violence prevention measure, and public funding of religious institutions reflect a political and ideological agenda, not a coherent legal or judicial philosophy, as I will discuss below. All of them overturned long-standing precedents – something all of the justices had pledged not to do in their confirmation hearings. There are three important areas where the contradictory nature of the reasoning underlying these rulings is most evident:

• Belief in a weak federal government and strong state governments,
• Belief in “originalism,” i.e., that the language and meaning of the Constitution and its amendments as and when written should be adhered to, and
• Belief in the legality of precedents and rights unspecified in the Constitution only if they reflect long-standing practices in the country.

In this post, I’ll explore the belief in a weak federal government and strong state governments as a rationale for the justices’ rulings and demonstrate their inconsistent and contradictory use it. I’ll cover the other rationales in subsequent posts.

Conservatives have traditionally supported a weak federal government and strong state governments. However, for the six justices in the majority in each of these recent rulings their commitment to this belief seems to depend on the issue.

There are two main pillars behind the weak federal and strong state government position. One is support for “states’ rights;” leaving as much of the public sector role and policy making to lower levels of government that are closer to the grassroots. Having control of schools and elections in local and state hands are two bedrock conservative examples of this. The exercise of “states’ rights” has, both historically and currently, reflected racism. Racism was an important component of “states’ rights” politics in the 1960s as it was pushback against federal Civil Rights laws, including voting rights and school desegregation.

The second pillar of conservative support for a weak federal government is opposition to regulation of businesses and the private sector. Conservatives typically believe that an economy that is as unfettered by government regulation as possible will be the most productive (if not necessarily the fairest). They also typically believe in market place and private sector solutions to social issues (e.g., privatization), not government programs as solutions.

In the June 24, 2022, ruling overturning Roe v. Wade’s establishment of a right to an abortion, the Supreme Court ruled that the federal government could not constitutionally guarantee this right. On the face of it, this reflects a belief in a weak federal government and a “states’ rights” approach where policies on abortion would be left to state governments. However, Alito’s opinion seems to go out of its way to ensure that anti-abortion advocates could pursue a nationwide, federal ban on abortion (i.e., a strong federal government role) by repeatedly writing that the abortion debate is being returned “to the people and their elected representatives.”  He does not write that the decision is being returned to the states. The implication is that those “elected representatives” could be those in Congress. Therefore, within this one decision and opinion, Alito and the five other concurring justices are at best unclear and at worst contradictory about whether they believe the Constitution creates a strong or weak federal government in relation to the states, at least in realm of abortion law. [1]

The Supreme Court’s June 23, 2022, decision declaring unconstitutional New York State’s requirements for obtaining a permit to carry a gun in public is an assertion of a strong federal government with the power to overrule states’ laws regulating guns. The Court is furthering federal enforcement of an individual “right” to bear arms based on its interpretation of the Second Amendment. (I discussed the problems with their interpretation of the Second Amendment in this previous post and won’t go into them here.) This ruling overturns a state law that has been in place for over 100 years and effectively renders any state law restricting ownership or carrying of a gun presumptively unconstitutional. The ruling, among other problems, seems to ignore the language of the Second Amendment that the right to bear arms is predicated on “being necessary for the security of a free State.” A state and the people living in it are neither more secure nor freer with an expanded “right” of individuals to carrying guns in public. [2]

On June 21, 2022, the Supreme Court issued a ruling ordering the state of Maine to allow public dollars to pay for children’s attendance at religious schools. Putting aside for the moment the First Amendment language that prohibits the government from making any “law respecting an establishment of religion” (as the six deciding justices apparently did), this ruling reflects a belief in a strong federal government that can tell states how to spend their money. This is the antithesis of “states’ rights” and a weak federal government, which conservatives typically support. This follows a pattern of decisions where the Supreme Court has overturned decades-old, affirmed precedents and ordered state or local governments to take actions that benefit or support religious groups. In Missouri, the Court ordered the state to include religious organizations in a program funding playground maintenance. In Montana, it ordered the state to include religious schools in a scholarship tax credit. It ordered Boston to include Christian groups in a program allowing non-profit organizations to fly a flag on a city flagpole. [3] Most recently, it ruled that a Washington state school district had to allow a football coach to lead players and others in prayer on the football field, despite students reporting that they felt coerced. [4] (I wonder how the Court would rule if the religious group asking for government support were Jewish, Muslim, or some other non-Christian religion. We may find out one of these days.)

One final note. Election laws and the running of elections (along with schools) have been hallmarks of conservatives’ insistence on state responsibility and control with no or very limited federal government involvement. In recent years, the Supreme Court has overturned the Voting Rights Act, stopping federal oversight of election laws in states that had (and have) a history of discriminating against Black voters. It has refused to intervene as states have engaged in voter suppression and extreme gerrymandering with political and racial goals. However, back in 2000, the Supreme Court stepped into the presidential election in Florida (in Bush v. Gore) and ordered the state to stop counting ballots. The dissenting justices and many others identified this decision as a turning point when the “conservative” justices on the Court first displayed in a dramatic way their willingness to cast aside any coherent judicial philosophy or reasoning, upend precedent, and issue a ruling to achieve the political result they personally supported.

The recent rulings by these six Supreme Court justices (Roberts, Alito, Barrett, Gorsuch, Kavanaugh, and Thomas) are clearly political and ideological, if for no other reason than the judicial philosophy and reasoning behind them is inconsistent and contradictory. Given the lack of a coherent judicial philosophy or reasoning, the only rational conclusion I can come to, is that these justices are acting on the basis of their personal political and ideological beliefs and sympathies, and not as judges upholding the laws established by the legislative and executive branches of government. Rather, they are dramatically legislating from the bench; something conservatives used to criticize others for doing. They are radical reactionaries, not conservatives. (See this previous post for more detail on why this is appropriate terminology for describing them.)

In my next posts, I will review the six radical, reactionary Supreme Court justices’ contradictory and inconsistent uses of their supposed beliefs in “originalism” and in the legality of precedents and rights unspecified in the Constitution only if they reflect long-standing practices in the country.

In the meantime, Heather Cox Richardson has posted a 33-minute reflection on the state of our (supposed) democracy after the recent momentous and anti-democratic decisions by the Supreme Court. Her commentary and perspective are, as always, thoughtful, poignant, and steeped in history. I encourage you to listen to all or part of it (perhaps the last ten minutes if you’re short on time). I’ve linked to it on my Facebook page: https://www.facebook.com/john.lippitt.161/

[1]      Hubbell, R., 5/4/22, “The hard path forward,” Today’s Edition Newsletter (https://roberthubbell.substack.com/p/the-hard-path-forward)

[2]      Johnson, J., 6/23/22, “ ‘Devastating’: Supreme Court blows massive hole in state gun control efforts,” Common Dreams (https://www.commondreams.org/news/2022/06/23/devastating-supreme-court-blows-massive-hole-state-gun-control-efforts)

[3]      Atkins Stohr, K., 6/22/22, “Remember separation of church and state? Apparently the Supreme Court doesn’t.” The Boston Globe

[4]      Conley, J., 6/27/22, “Supreme Court takes ‘wrecking ball’ to separation of church and state with prayer ruling,” Common Dreams (https://www.commondreams.org/news/2022/06/27/supreme-court-takes-wrecking-ball-separation-church-and-state-prayer-ruling)