Protecting The Privileged

The composition of the U.S. Supreme Court is a key area of dispute between Republicans and Democrats. I share the concern, but for rather different reasons than most of the people vocally involved in this debate.

It’s clear that Trump’s cult will sacrifice fundamental fairness and a competent (or even barely functional) federal government in return for reversal of Roe v. Wade.  I have increasingly come to file that possibility under “be careful what you wish for”–not only would abortion still be available in blue (and probably purple) states, but the backlash would be profound; it’s hard to think of any other ruling that would activate more more opponents of the fundamentalist cult that is today’s GOP.

My concerns with the Supreme Court are grounded in its less obvious and more dangerous retreat from the civil liberties jurisprudence of the Warren Court. The current Court’s most predictable bias can be seen a steady stream of decisions favoring the rich and powerful over the poor and disenfranchised.

A recent book by Adam Cohen–Supreme Inequality— is one of the emerging discussions of that bias. An article in Time Magazine by Cohen outlined the book’s central thesis–the conservative Court’s  “deep and abiding sympathy” for the rich. That sympathy is a hugely consequential change from the 1960s, when the Warren Court protected the rights of the poor–from welfare recipients’ right to due process to poor defendants’ right to appointed counsel in criminal cases.

As Cohen documents, however, for the past 50 years, “the Court’s sympathies have been the reverse: on one legal doctrine after another, it has expanded the rights of wealthy individuals and corporations.”

After the Warren Court, Nixon was able to appoint conservatives who shaped the Court we have today. Cohen provides striking examples of the consequences.

One of the first groups the new conservative Court came to the rescue of was rich children, or at least children in wealthy school districts. There was a growing consensus among lower federal courts, state courts, and law professors that the Equal Protection Clause required states to equalize spending between rich and poor school districts. In 1973, however, the Court, by a 5-4 vote, declared that Texas, and other states, had the right to spend more money on children in rich districts than children in poor ones.

As a result of that decision, today there are gaping disparities in school spending nationwide. An analysis of funding in Pennsylvania a few years ago found that one wealthy district spent more than three times as much as the state’s lowest-spending district. In the aggregate, these disparities mean that children from wealthy families across the country begin life with greater educational opportunities, and a better chance at success later on.

Other decisions that elevate the interests of the privileged over others include Citizens United and its forerunners–rulings that gave rich people and corporate “people (!)” a disproportionate voice in American politics.

Cohen isn’t the only person to notice. This week, James Dannenberg resigned from the Supreme Court Bar in a letter to Chief Justice John Roberts that has been widely published. Dannenberg has been a member of that bar since 1972. His letter compares the current Supreme Court, with its solicitude for the rights of the wealthy, privileged and  comfortable, to the widely-reviled Lochner court of the early 20th century that favored big business, banking, and insurance interests, and ruled consistently against child labor, fair wages, and labor regulations.

Dannenberg pulled no punches.

You are doing far more— and far worse– than “calling balls and strikes.” You are allowing the Court to become an “errand boy” for an administration that has little respect for the rule of law.

The Court, under your leadership and with your votes, has wantonly flouted established precedent. Your “conservative” majority has cynically undermined basic freedoms by hypocritically weaponizing others. The ideas of free speech and religious liberty have been transmogrified to allow officially sanctioned bigotry and discrimination, as well as to elevate the grossest forms of political bribery beyond the ability of the federal government or states to rationally regulate it. More than a score of decisions during your tenure have overturned established precedents—some more than forty years old– and you voted with the majority in most. There is nothing “conservative” about this trend. This is radical “legal activism” at its worst.

When a respected member of the Supreme Court bar questions the Court’s commitment to the rule of law, it’s an ominous sign.

The question is, as always, what should we do?

We should certainly think very seriously about the recommendation by legal scholars that the number of Justices be increased–a recommendation that long preceded the current administration.

And most obviously, we need to vote blue up and down the ticket, to ensure that people who will be elevated to the court in the future are “throwbacks” to the Warren Court, rather than pro-plutocrat right-wingers.


  1. “It’s clear that Trump’s cult will sacrifice fundamental fairness and a competent (or even barely functional) federal government in return for reversal of Roe v. Wade.”

    It may take awhile but eventually there will be cases before SCOTUS due to action or inaction based on race, sex, LGBTQ or religious basis regarding availability of testing for this Covid-19 Pandemic. Trump hid and/or opposed informing the public during early stages of awareness and continues to issue non-informative information in his press conferences as states act on their own to set up rules regarding testing or treatment without testing. The Republican Governor of Ohio has postponed the Democratic Primary Elections, thereby maintaining the Republican majority in that state. Will that become a SCOTUS issue long after it will be of any use? Will the Republican state of Indiana with its Republican majority who support Pence’s RFRA and total anti-abortion laws here be the next state to take that action?

    “We should certainly think very seriously about the recommendation by legal scholars that the number of Justices be increased–a recommendation that long preceded the current administration.”

    The Senate, with its Republican majority, held hearings on the proposed appointment of Kavannaugh regarding the rape accusation then the actual appointment hearing, we saw how that was manhandled by Trump and McConnell and he sits on SCOTUS drooling for the opportunity to repeal Roe vs. Wade after SWEARING he would uphold it as a SCOTUS decision. We tried against the odds to prevent this from happening; can we actually prevent future appointments to SCOTUS, and all other federal courts, such as Kavannaugh.

  2. I was cheered when I read Judge Dannenberg’s letter. He is not only a respected member of the bar, he is also a conservative. When a conservative is complaining about the Court, that is a sure sign of its right winged radicalism.

    I am not completely convinced that we need more justices, but I am convinced that we need a higher bar than a thumbs up from 51 Senators for the approval of any judge getting a lifetime appointment.

  3. Federalist Society judges are cultists in their own right. Since the GOP was virtually founded on the principles of upholding slavery and favoring the rich, why wouldn’t they embrace a judiciary philosophy as their own?

    Grandma said not to speak badly of the dead. Then there is Antonin Scalia…. His egregious decisions regarding corporate/banking America has rippled into our political and Constitutional environment to the point where our democracy is teetering on the brink of kleptocracy. Too bad he isn’t alive to see the shit storm he helped create at the behest of unbridled capitalists.

  4. Our conservative judges have been in the pockets of industry for decades. Scalia was a Koch shill of the worse kind.

    We don’t even have to know the causes anymore because we can simply look at the effects of our rulings and regulations coming from states and federal governments.

    COVID-19 is demonstrating that we don’t have a public health system in Indiana or this country. We have a market-driven for-profit system that is now grossly inadequate to handle a pandemic.

    The Federal government has been quick to respond in favor of the capital markets and financial Oligarchs as not to disrupt their wealth, while their response to the people of this country has been more like malign indifference.

    The gross inequalities for which Dannenberg writes about, or eludes to, is the effect of 40 years of Neoliberalism, where we’ve quietly privatized and commodified everything into a market-driven for-profit system. Even our educational system, as referenced in Sheila’s post.

    Our elected and appointed public servants are peons within the Oligarchic framework.

    Trillions are being spent to prop up the failing economy, but those trillions are going directly to the wealthiest Americans and capitalists.

    Whereas, Senator Mitt Romney tossed out a one-time $1,000 UBI payment to every U.S. taxpayer. How grossly inadequate, but it also won’t gain any traction in this country because that would be socialism. LOL

    The level of propaganda needed to hold this scheme together is astounding. The people should be marching the streets in protest across the country; instead, they’ll be watching their televisions in isolation and rooting for an economic system that is systematically killing them off.

  5. It has occurred to me that absolute power may seize this window of global emergency to exact their will under cover of disruption and common distraction.

  6. “COVID-19 is demonstrating that we don’t have a public health system in Indiana or this country. We have a market-driven for-profit system that is now grossly inadequate to handle a pandemic.”

    Todd; it is also dragging before the entire country that we do not have a working private health system. When doctors are postponing regular appointments due to the virus or scheduling appointments to be conducted by phone which will require debit or credit card numbers to bill patients, can this be considered valid health care we are entitled to due to monthly health insurance premiums? The above situations are what my family members were confronted with yesterday; the postponed regular appointment was with my disabled grandson, the phone appointment will deal with my daughter-in-law’s breast cancer tests and biopsy which should include a “hands-on” examination. Neither will have the advantage of in-person health care with their primary physicians. Has anyone else on the blog learned of these new private health care situations?

  7. Sometimes we lose the big picture in the details. In the biggest picture society is a pretty simple place. We are individuals with our individual strengths and weaknesses and knowledge and prejudices but our society is defined by collections of us called institutions. Corporations, government, churches, charities, communities, schools, public servants, etc. All reflect the people that comprise them in terms of competence and care and focus so like us, they are all capable but far from perfect. The “glue” that binds us are our laws coupled with our respect for each other. Like us individuals they need to reflect among many other things how we collaborate and serve each other but also our freedoms and rights as individuals to be individual and unique.

    Today we are shaped by an explosion of information networks that provide means to share our individual and institutional cares that range from profound to trivial. It’s been estimated that the gross human knowledge racing around those networks now doubles every year or so. Our numbers, our knowledge, our ability to influence strangers, our consumption of energy and raw materials and production of waste as well as useful goods and services are also exploding. We are overwhelming ourselves.

    IMO this is no longer sustainable and Is therefore temporary. I’m afraid that we unfortunately are not capable enough to manage to a soft landing the required transition to what is sustainable and will watch as forces bigger than we are change everything around us. Unfortunate reality.

    Buckle up, hunker down, have faith, care as much as you are able to about the individuals around you and support the institutions that you feel able to and care about. Whatever reality that emerges from the chaos will someday be the new comfortable reality but the transition will be frightening.

  8. As I may have written before, I resigned from the Supreme Court bar following Bush v. Gore, noting in my resignation letter to the clerk of courts that I did not wish to be a member of the bar of a court that itself acted unconstitutionally. I think that case was wrongly decided and still think so to this day.

    My view as a lawyer then and now was not based on partisan politics. It was based on the Madisonian gift of the electoral process (including federal elections) to the states and (speaking of stare decisis) former holdings that thus the court of last resort in electoral matters was the Supreme Court of the state in which the case arose. In this case that would be the Supreme Court of Florida. The Supreme Court of the United States by assuming jurisdiction approved the James Baker’s hijacking of this case from the Supreme Court of Florida into the federal system. I thought that was wrong, and the ensuing decision wrong on the merits in any event (even assuming that the merits were rightfully up for review). I at the time rejected the counter-constitutional argument that the court relied upon as a manufactured response for political purposes.

    I could write more about how Bush v. Gore was (in my view) wrongly decided, but the foregoing will give readers a clue as to why I resigned. It was a grrrrr! moment, and still is, considering that such a decision gave us Iraq, oil people in the Oval Office who transported their petroleum politics to the middle east, a vice president in charge of Halliburton (and policy), and perhaps a decision that (however indirectly)even precipitated 9-11.

    Finally, and again in my view, Bush, arguably, has done more damage to this country than Trump, though Trump is not finished just yet. I remain in my grrrrr! moment.

  9. listening to supreme court arguments, sometimes i ask why didnt they ask a specific question to this subject? i listen to argumants,on issues,seems not to be related to the issue,but well argued. Nina Totenburg,NPR gives a sideline view,and comment on the matters more pressing. thanks,i get the drift now…seems too many baristers enter this court,expecting something,and some lurking in the arguments..respect be due, but maybe some finger pointing at the justices while in argument,is due..thomas hardly says anything,but will shove some chips across the table that makes him important. roberts made head of this court by a mistake,(king geo the 2nd) not his appointment, the one who appointed him..there were at the time senority above his,and his nerd like manner hid his intent.. roberts said he would follow written text? whos?
    the rich has over the past 40 years has dismantled the court(s) to their liking. alumni be damn here, its all the college and whos,who you relate with now,and how far you want to delve into getting rich..follow the education,and where,and then follow who follows who..the right side of the isle,has made a wonderful appreance in this matter.. im sure you dont get into the republican party,or if your a lacky,into,the demo party under a shade of become one of them..the hammer that holds the money in this country,is held above the least fortunate,and will remove dissent eventually… roberts adventure into congress seriously was a mistake,and he should have waited for case to be passed on..instead,it died,with him,in committee..
    (my view,and i havent a clue if procedure was the question) respect for this court shouldnt have a wedge for me to make such statements,it should have my respect for all justices presiding. instead the wedge is throw at us,and its still in air. the fact that Ginsburg,is devoting her last days to stand against the court,the rabble,and the facism of this new goverment,is the real face of who stands and fights..the next pres,hopefully blue, will see fit to releive her last days to relax,and maybe that medal of freedom,to honor a real hero.. we should know right from wrong,and we should ALL have a basic knowlege of our civics,and posture in America.but
    the courts have deem that unnecessary, as we stand before them..

  10. Todd
    a few days ago,
    lost $3.4 trillion in the,,so far
    overall worldwide
    $6 trillion.. that was last week..
    imagine the education we could produce for that

  11. From the NYT this morning.
    “McConnell Has a Request for Veteran Federal Judges: Please Quit

    The Senate majority leader has encouraged judges thinking about stepping down to do so soon to ensure that Republicans confirm their replacements this year.
    Senator Mitch McConnell has for months made clear it that he intended to fill as many judicial slots as possible before the end of this year.
    Senator Mitch McConnell has for months made clear it that he intended to fill as many judicial slots as possible before the end of this year.Credit…Anna Moneymaker/The New York Times
    Carl Hulse

    By Carl Hulse

    March 16, 2020

    WASHINGTON — Running out of federal court vacancies to fill, Senate Republicans have been quietly making overtures to sitting Republican-nominated judges who are eligible to retire to urge them to step aside so they can be replaced while the party still holds the Senate and the White House.

    Senator Mitch McConnell, Republican of Kentucky, who has used his position as majority leader to build a judicial confirmation juggernaut for President Trump over the past three years, has been personally reaching out to judges to sound them out on their plans and assure them that they would have a worthy successor if they gave up their seats soon, according to multiple people with knowledge of his actions.

    It was not known how many judges were contacted or which of them Mr. McConnell had spoken to directly. One of his Republican colleagues said others had also initiated outreach in an effort to heighten awareness among judges nominated by Presidents Ronald Reagan, George Bush and George W. Bush that making the change now would be advantageous.

    The overt effort by Republicans to create vacancies reflects a realization that Mr. Trump could lose the presidency, or that Republicans could lose the Senate majority and deprive Mr. Trump of his partner on judicial confirmations even if he did gain a second term.”

  12. The USA since it’s creation bestowed life, liberty and the pursuit of profit on a privileged few the Elite or 1% of it’s day. Slavery was legal. 41 of the 56 delegates who signed the Declaration of Independence were slave owners. We know the tragic history of the Native Americans being “leagally” cheated along the way.

    The Industrial Revolution created opportunities as well as problems. The wealthy not only controlled the means of production. They also controlled the political process. Human Rights, Labor Rights were subservient to Corporate Rights (person hood for corporations).

    Teddy Roosevelt and later FDR attempted to balance this out somewhat. JFK and LBJ destroyed the legal basis for Jim Crow, not however the attitudes of the Neo-Confederates.

    The Warren Court probably can be looked at as an aberration in our long history. Almost immediately the Reactionaries began to attack the Warren Court. The long term plan was to change the court. Mission Accomplished in this sense.

    The name Antonin Scalia often comes up as model of a Reactionary appointed by Reagan. Here is a fact:

    When Senate Judiciary Committee hearings on Scalia’s nomination opened in August 1986, Scalia met NO opposition from the committee. The full Senate debated Scalia’s nomination only briefly, confirming him 98–0 on September 17, 1986. At the time Republicans controlled the Senate 53-47. What this meant was every Democrat who voted; voted for Scalia.

    Scalia’s track record was well known during his nomination process, example per WIKI: In 1981, he became the first faculty adviser for the University of Chicago’s chapter of the newly founded Federalist Society.

    Of the nine members of the Supreme Court of the United States, five (Brett Kavanaugh, Neil Gorsuch, Clarence Thomas, John Roberts, and Samuel Alito) are current or former members of the Federalist Society organization.

    This is an example of how the Republicans play Major League Baseball, while the Democrats have been playing slow-pitch soft ball. That said I will vote Blue no matter who. However, in doing so I hope we are not electing get along DINO’s.

  13. It’s a sure bet that Trumpublicans are in deep discussion now about how to use the pandemic to hang onto their power until they have had time to scrub voters minds free of holding them accountable at the polls for the upcoming depression.

  14. That strategy could also give them more time to continue the privatization of the Judicial Branch as well as increasing the odds that they will get to choose Ruth Bader Ginsberg’s replacement.

  15. There are power philosophers who purport that the wealthier a country’s elite is the stronger the country is.

    That flies in the face of the popular democratic assumption that the wealthier a country’s middle class is the stronger the country is.

    So, which is it? Which is best for a country–its middle class or its elite? Which best assures a country’s access to worldwide resources, its influence in world affairs, sea routes, air space, international legal recourse, and the ultimate arbitration of international contention–force?

    Since I have never heard or read anything in my life that supports the imperative of a strong and wealthy elite, I skimmed through some new-to-me literature from contemporary power philosophers.

    In case you also want to read some of the idea influencers pedaling various power virtues of the elite, the most contemporary are: Elmer Eric Schattschneider, C. Wright Mills, Floyd Hunter, G. William Domhoff, James Burnham, Robert D. Putnam, Thomas R. Dye, George A. Gonzalez, Ralf Dahrendorf, Martin Gilens and Benjamin I. Page.

    It’s quite interesting to read reasoned tomes supporting elitist power… when you can find them. Most treatises on the subject of national power, rather than aim for a comparison of results from contending national power systems, limit their purpose to description of existing power, descriptions which their authors contend owe their historical value to novelty.

    The following seems to me to be a thoughtful find in “The Irony of Democracy” by Thomas Dye: (paraphrasing) The very idea of democracy, precisely its inherent dream of economic success, assumes elitism to be democracy’s desired and inevitable outcome; therefore, democracy carries with it its own demise–suicide by democracy.

    If I understood a few of the other authors, democratic socialism is meant to be the fix for democracy. In democratic socialism, democracy is implanted with a device that enables it to chug along in perpetuum with nary a thought of suicide, at least none that would not be thwarted by a quick automatic micro-dose of socialism.

    I will try to keep some of these new thoughts in mind as the Feds dole out tens of billions to save the big boys of the economy from the ravages of a sick stock market.

  16. Larry – I am not familiar with most of those authors you mention, but I did read C Wright Mills during my undergraduate days. I cannot imagine him supporting the idea that a rich upper class was good. He was a left-wing sociologist and a hero to the New Left in the ’60s.

    Sheila -I share your broader concern with the Supreme Court. I have often heard views, such as Monotonous expressed, that the Warren Court was an aberration, but I have this hopeful vision that it represented an evolution in this country’s outlook on what this nation stands for. When the founders stated that “all men are created equal” (men being the then appropriate noun form to include all people), the didn’t include everyone. Slowly we abolished slavery, gave voting rights to people of color, and eventually women. I consider this an evolution in our self-view as a nation.

    What I worry about it the typical wishy-washy response from Democrats. “Well, let’s pick a ‘moderate’ to replace RBG – we want this to be bipartisan – let’s go slow and seek agreement from the Republicans – we can’t change the size of the courts; that’s court packing and it didn’t work for FDR – let’s go slow and bipartisan and always pick ‘moderates’ for the courts”

    Court packing is what Moscow Mitch engaged in – not approving Obama appointments, rushing any and all appointments through for Trump, and of course the McConnell Addendum to the Constitution that says that Democrats cannot make court appointments in the last year they are in office, but Republicans can get appointments through in a lame-duck session.

    FDR and the court at his time are not relevant now. Gerald Ford demanded the impeachment of Justcie William Douglas, and he was nowhere as far to the left as some of these sitting Justices are to the right (and we could add the late Justice Scalia).

    The radical right has seized our government and we may need to take extraordinary measures to restore our country. What and how are still unclear, but increasing the number of Supreme Court justices seems like a reasonable measure, especially considering the increase in population and in the number of potential cases for them to hear.

  17. Thank you Sheila for showing the emperors behind the curtain. I tend to view most all their decisions through the prism of the powerful maintaining their economic and/or political power.

    The majority of justices wore their Christianity on their sleeve during confirmation hearings, but we know what Jesus thought of the money-changers who had corrupted the temple. That’s my view of the current Court majority. It’s time for us to over-turn their table for the haves to protect the have-nots.

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