With newly confirmed Amy Coney Barrett now the sixth conservative on the bench, the next several months should be fascinating if not terrifying for those concerned about health care, the environment and the concentration of wealth. As expected, little was revealed during her confirmation hearing with all votes determined long before it started (although Alaska’s Lisa Murkowski took a few days to say so). Now we wait to see if Biden can win the presidency and the Democrats can take the Senate. If both of those things happen, we’ll see how long it takes them to add justices to the court to reduce the conservative super majority to a minority. Adding, say, four liberal justices to the court would send Republicans howling, and probably increasing the number yet again if they ever retake the White House and the Senate.
I’ve always been fascinated by what the Founding Fathers were thinking, before there were Democrats or Republicans, when they envisioned the Supreme Court. After providing detailed provisions for Congress and the Presidency, they left Article III on the federal judiciary startlingly vague, just three small sections saying there should be a court and federal judges “shall hold their offices during good behavior” (for life), with appellate jurisdiction for all law (original for cases involving ambassadors) and defining treason. That’s about it. It’s the only branch of our government that has always been able to define itself and choose which cases to hear and which to ignore. Long before Barrett, there has been no shortage of controversy or inconsistency.
At first the six-member Supreme Court was hesitant to hear any case. It never even considered the Alien and Sedition Acts passed by a Federalist Congress that made “criticizing the government a crime” only until the next election in case the Federalists lost (which they did). Congress just pretended the First Amendment and free speech did not exist. (Well you had the right to speak but the government had the right to put you in jail afterward.) Despite their outrage, the Jeffersonians did not legally appeal the acts so the Supreme Court had nothing to say about them.
When President John Adams lost the election of 1800, he appointed several “midnight” judges to the circuit courts his last day in office, to be delivered by his successor, Thomas Jefferson, who had no interest in completing these appointments. One of them sued and the stage was set for arguably the most important case ever, Marbury v. Madison. By then John Marshall was Chief Justice and he set out to strengthen the Court in ways I wonder if the founding fathers could have possibly imagined. Marshall cleverly ruled that while the Supreme Court could not force Jefferson (or his secretary of state Madison) to process the appointments, it could find acts of Congress unconstitutional like the one that did give the court the right to force processing. In this way Marshall and the Court established judicial review of Congress putting it on equal footing with the legislative and executive branches without actually taking on either one. Congress did allow Jefferson to add a seventh judge to the Court.
Marshall’s decision against a president 30 years later would not go so well. In 1832 he found that the state of Georgia did not have the right to strip the Cherokee Nation of its lands and send them to Oklahoma. Only the federal government could do that. But that was during the presidency of well known Indian killer Andrew Jackson who famously said, “Mr. Marshall has made his decision. Now let him enforce it,” knowing full well that white-dominated Americans would never respect Native land claims in Congress, in Georgia, or in any other state. The result was the grotesque Trail of Tears, a forced march of over a thousand miles in winter killing at least 3,000.
Eight years later the post-Marshall court felt political pressure again when kidnapped Africans bound for Cuba overtook their slave ship and landed in Connecticut. They were to be returned to Africa since slave trading on the high seas was by then illegal in American law, except for the southern argument that Africans were in no way human and should be sold into slavery. Former president John Quincy Adams took the case on behalf of the Africans and appealed to the court’s vanity by arguing that going against the Africans would prove the court had no political independence from the president who sued under pressure from John C. Calhoun, already threatening to secede. The court agreed with Adams, the Africans were returned to Sierra Leone, and President Martin Van Buren was voted out of office.
The Supreme Court was even more prone to political pressure in 1856 when it incredibly ruled that Dred Scott, a slave brought north by an owner who then died, had no right to sue for his freedom because, said Chief Justice Roger Taney, “a black man had no rights a white man was bound to respect” even in the north. That meant that slavery was suddenly legal everywhere and fugitive slave laws could land white people in jail for not reporting runaway slaves in Wisconsin. The Civil War soon followed.
With the Dred Scott debacle over and Civil War raging, a no-Southerner Congress allowed Lincoln three more judges so there were briefly 10, reduced to seven after the war, and increased to nine under Grant. There have been nine justices ever since but, dominated by racists, some horrible decisions came over the next 40 years. The 14th Amendment establishing rights for all Americans, black or white, was eviscerated when the court ruled it only applied to corporate monopolies, not individuals, and went on to rule “separate but equal” was adequate, ensconcing segregation and Jim Crow for another 60 years. It also ruled that no government entity, state or federal, could regulate railroad rates, allowing tycoons to extort farmers. And women had no right to vote according to an 1875 decision. Only a constitutional amendment could make that happen.
Later, the Supreme Court found part of Franklin Roosevelt’s New Deal, to fight the Great Depression, a violation of states’ rights. FDR responded by trying to “pack the court” with six more judges but his attempt was highly unpopular, evoking accusations he was becoming a dictator. When he backed down, one judge retired and another changed his vote so the Industrial Recovery Act was constitutional after all, without the court or the President losing credibility.
Bush v. Gore in 2000, however, probably did lose the court credibility. When Florida hadn’t decided its vote count in mid-December, the purely partisan Supreme Court shut down the recount and declared George W. Bush president by a 5-4 vote in the interest of expediency. Deciding a presidential election was totally unprecedented, as was the Senate’s refusal to consider Barack Obama’s appointment to the Supreme Court in 2016, Merrick Garland, for nine months, during which the court had only eight members, deadlocked on most tough decisions, which left lower court rulings in place on 4-4 ties.
With Trump having appointed three justices now, conservatives may control the Supreme Court for many years to come as well as lower federal courts. If Biden is able and willing to “pack the court,” there is precedent, and it won’t be the first controversy to embroil the judiciary. It’s one of a million reasons November 3 is a big day.