How the right wing captured the Supreme Court

Part 1 of a 2 part series. Read part 2 here.

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The public’s opinion of the Supreme Court’s job performance is plummeting–only 40% of Americans give the current court a passing grade, down 18 points (!) from just a couple of years ago, and the six members of the court’s right-wing majority claim to be baffled by the plunge. To understand why their reputations are crashing, the Alito-Barrett-Gorsuch-Kavanaugh-Roberts-Thomas clique could consult their PR agents, go into group therapy … or they could just read Hans Christian Andersen’s classic folktale, “The Emperor’s New Clothes.”

Written nearly two centuries ago, the fable depicts a vainglorious royal primping prior to a public procession as his fawning courtiers lavishly praise the magnificence of his new attire. Turning for one last look in the mirror before departing, the emperor agrees his costume is splendid.

As the promenade commences, the townspeople cheer his appearance: “Oh, how fine are the emperor’s new clothes! Don’t they fit him to perfection? And see his long train!” Then a little child pipes up, “But he hasn’t anything on.” One person after another whispers the child’s remark, passing it along until the whole town cries out at last, “But he hasn’t got anything on!”

The emperor shivers, but thinks, “This procession must go on.” So he walks more proudly than ever as his noblemen hold high the train that wasn’t there at all.

And so it goes with the far-right extremists on today’s high court. Having discarded their cloaks of judicial temperament, they’ve been parading through case after case, hoping no one notices their naked political activism. But there it is, so in-your-face and so plainly at odds with the will of the people, that even Americans who normally pay no attention to court-case mumbo jumbo can’t help but see their butt-ugly partisanship. The great irony of the Supremes’ use of their judicial power to advance their radical political agenda is that they are destroying the legitimacy of the court itself, thereby undercutting the strategic value of a governing branch that their corporate and ideological sponsors have spent years and hundreds of millions of dollars to capture.

Odd duck in a greek-styled temple

We commoners have been instructed from our earliest civics classes that the nine eminences of the Supreme Court are not political players, but the wise embodiment of America’s majestic principle of “Equal Justice Under Law,” a phrase engraved across the broad facade of the Greek-styled temple in which they preside. Yet, even before the current gaggle of right-wing legal operatives took over, the court was rarely a democratic bastion of justice and equality. Rather, in its 233-year history, members have most often served as tenacious protectors of wealth, property, privilege, and the corporate order, fending off the egalitarian aspirations and demands of riffraff like you and me.

In fact, the Supreme Court is peculiarly unAmerican, intentionally structured as an aloof, quasi-autocratic, opaque governmental authority, a jarring anomaly in a nation purporting to be a democratic republic.

Consider three oddities of the littlest and least-known branch of government:

1The court is inordinately powerful. Nine individuals in a nation of 332 million periodically emerge Oz-like from behind the courtroom’s deep red curtain to issue life- altering rulings. There are no appeals to their proclamations. With no public scrutiny or accountability, they can conspire on cases of their choosing, and a bare majority of only five can arbitrarily overrule presidents, congresses, governors, legislatures, other courts, voters, science, and even the most intimate personal choices of ordinary, supposedly self-governing people. 2With only rare exceptions, the court’s makeup bears no resemblance to a government Of, By, and For the People. The august justices are practically unknown to the public. Most have little in common with regular people, no real contact with grassroots America, and are dangerously ignorant about the struggles of working class and poor families. They tend to be products of exclusive law schools (eight of today’s members are Harvard or Yale graduates), and they’ve typically had highly paid careers as white-shoe lawyers, lobbyists, or trusted staffers for right-wing political interests. Their separation from workaday Americans is ensured in perpetuity, for the judges:

• are enrobed for life
• make up their own rules of ethical conduct
• are not subject to any independent performance review
• and operate almost entirely behind closed doors.

No wonder, then, that this little group–with truly awesome power over our lives–is so frequently out of touch with our experiences, needs, and beliefs.

3 (and most surprising) Despite its prominence, pomp, and presumption of power, the Supreme Court is an astonishingly weak political entity! The aloof honorables can make all the pronouncements they want, but as Alexander Hamilton noted, they have neither the power of “sword or purse,” nor an army to enforce their rulings or compel the people to comply with what they say. Their only real authority, the sole source of their legitimacy, is the one virtue the present bunch is so stupidly squandering: Judicial integrity. In the long haul, We the People will accept their judgements as the law of the land only to the degree that their rulings appear to be fair–i.e., based on honest legal procedures, the Common Good, and fundamental principles of justice. A court with no judicial integrity is an emperor with no clothes.

The people be damned

Today’s six-member supermajority has surrendered all claim to being an impartial moral force for blind justice. Instead, the GOP’s small network of corporate and right-wing operatives has painstakingly fabricated and weaponized the court as its own political oligarchy. In only a couple of decades, backed by a few billionaires, these anti-democracy zealots have incrementally been imposing on America an extremist political agenda that they could not win at the ballot box.

Their Eureka! Moment–the startling development that opened the eyes of the moneyed elites and ideologues to the raw power they could grab by politicizing the judiciary–was the Supreme Court’s illegitimate Bush v. Gore ruling. In December 2000, that five-person GOP majority abruptly crashed Florida’s presidential vote count, storming over both democracy and judicial propriety to install George W in the White House. Appalled, dissenting Justice John Paul Stevens mocked the five, pointing out that while their trumped-up ruling didn’t really establish whether Bush or Gore won, it did make the loser “pellucidly clear: It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”

One of those who helped run the court’s blatant political power play over the Florida vote was an obscure corporate lawyer who had long been an aggressive, behind-the-scenes Republican monkeywrencher pushing to restrict voting by people of color, the poor, and other Democratic constituencies: John Roberts. Shortly thereafter–surprise!–Bush elevated Roberts to a top federal judgeship, and just two years later moved him on up to America’s ultimate judicial power spot, chief justice of the Supremes.

From this lofty roost, Roberts has orchestrated an expansive political docket for the court, handpicking cases created and advanced by far-right interests. He then has manipulated precedents and procedures to produce convoluted decisions that impose plutocratic, autocratic, and theocratic domination over the American people’s democratic rights and aspirations.

To date, Chief Justice John Roberts has cobbled together slim, all-Republican majorities to hand down more than 80 blatantly partisan rulings, fabricating law that We the People have never voted for and don’t support. They include these infamous decrees:

In the Kafkaesque Citizens United dictate of 2010, the court’s 5-4 right-wing clique embraced the absurdity of “corporate personhood,” asserting that giant, autocratic corporations (paper constructs with no body, brain, breath, voice, or morality–but lots of money) have a constitutional right equal or even superior to actual persons to spend unlimited, often secret, sums of their corporate cash to dominate our elections. Spending on elections, they insisted, is just a form of speech and is thus protected by the Constitution. (This ruling conveniently slides past the obvious conclusion that those with the most money get the most speech, meaning that “free speech” is not free at all.) Their ridiculous play on words has produced a geyser of corrupt money from huge corporations intended to install their chosen agents in high office, defeat direct-democracy ballot initiatives proposed by grassroots progressives, and–not coincidentally–further pack our courts with judges who will serve their special interests over the public interest.

While the federal judiciary has aided corporate bosses and rich shareholders for decades by chipping away at hard-won legal protections for working families, the chisel has become a jackhammer in the last few years. GOP judges routinely pound precedents, logic, truth, and the Constitution itself beyond recognition, not merely to rule against unions, but to demolish the structural pillars of labor rights and organizing.

In a 2018 case, for example, the GOP Five undermined the funding of unions by arbitrarily striking down their process for collecting dues–a practice the court itself had authorized 41 years earlier. As Justice Elena Kagan bluntly put it in her dissenting opinion, there was no reason for the court to barge into this matter of long-settled law … except that the corporate-backed Republican majority simply didn’t like the previous decision and overruled it “because it wanted to.” This was yet another open-and-shut case of five black-robed partisans supplanting America’s hallowed rule of law with their own anti-labor whim.

The Roberts Court has become the linchpin of the Republican Party’s nationwide attack on the voting rights of African Americans, Latinos, and other constituencies inclined to support Democrats. Mass-scale voter suppression depends on a compliant network of starkly partisan judges to legalize it, and the Republican Supremes have willfully made the moral stain of this suppression the indelible emblem of their tenure. In a 2012 North Carolina case, Roberts led the charge, glibly gutting the Voting Rights Act of 1965. To nearly everyone’s astonishment, he decreed from on high that racism was over, no longer presenting a barrier to Black voters in the South! So–ergo, ipso facto, and abracadabra–he and his four regulars merrily ruled that the core protections against voter suppression in the Voting Rights Act were henceforth null and void.

This action unleashed GOP legislatures and white supremacists to do their own thing regarding access to the polls. And they leapt at the chance. Since then, dozens of new barriers have been erected in every state covered by the Voting Rights Act. But Roberts and his right-wing cohort have never admitted an error or apologized, instead pushing case after case to further undercut democratic access to the polls.

Since the Supreme Court’s 1973 Roe v. Wade case established that women have a constitutional right to control their own reproduction decisions, including the right to choose a safe abortion, a naysaying minority has ceaselessly pushed to take away this right. They insist that state and federal governments–not women –can make these decisions. Today, all GOP judges on the top court are in lockstep, and they’ve now rigged the system to bring up a case that might let them impose their political will. It involves an ultra-extremist Mississippi anti-abortion law that even a hard-core, right-wing federal court had ruled unconstitutional in 2020. Case closed, right? But the bloc of Republican Supremes skipped past the court’s own rules to put it back on the “To Do” list. Then, in a ghoulish maneuver, they held the case for nearly a year before bringing it up–waiting until ailing Justice Ruth Bader Ginsburg, a persuasive champion of the Roe decision, would die. Sure enough, only eight days after Ginsburg succumbed to cancer, Donald Trump (who would be voted out of office just two weeks later) rushed out anti-abortion activist Amy Coney Barrett to replace RBG. Thus, a GOP supermajority of six sanctimonious judges (five of them men) is now ready and eager to use the zombie Mississippi case as their weapon for overturning every woman’s right to choose.

It’s bizarre to have the least democratic branch of government professing to speak in the name of The People, even as its right-wing core is grinding out an unprecedented level of partisan judgments that We the People clearly do not want–and will not support. Take that abortion right, for example, that the court–now freshly packed with Trump’s trio of Barrett, Gorsuch, and Kavanaugh–will likely move this year to nullify. If they do, it will be a pricey “victory” for those politicos, because they are imperiously thrusting their own agenda over the overwhelming will of the people.

Helloooo, your honors: Some six in ten Americans have consistently and passionately affirmed that these deeply personal and emotional decisions belong to the women affected, not to unelected ideologues and political opportunists. A court so far out of touch with the people is marching forth with no cloak of legitimacy, squandering its authority to be taken seriously, much less obeyed.

Not only has this band of self-righteous judges been punching their reactionary social biases into court-made law, but they’ve also been rubber-stamping cases to enthrone corporate supremacy over us and our environment. Throughout Roberts’ reign, the court has sided with the Chamber of Commerce (the chief front group for US corporate giants) a staggering 70% of the time! Indeed, three members–Roberts, Samuel Alito, and Clarence Thomas–now rank among the five most-corporate-friendly justices of the past 75 years.

This aggressive corporatization and partisanship has lifted the Supremes to a new level of public awareness … much to their chagrin. In a Quinnipiac survey last November, more than six in ten Americans said they believe Supreme Court decisions are motivated primarily by politics, not by unbiased readings of the law. Rather than instilling a modicum of humility, however, the bad reviews have stirred embarrassing outbursts of judicial pique and vitriol. Justice Alito, for example, whined loudly last year that critics are engaged in “unprecedented efforts to intimidate the court or damage it as an independent institution.” Likewise, Justice Barrett was so stung that she felt it necessary to go public with a strained denial, pleading for the public to believe that “this court is not comprised of a bunch of partisan hacks.”

Note to petulant judges: If you don’t want to be called a partisan hack, stop being one. And, Brother Alito, it’s not critics who’re damaging the Third Branch “as an independent institution,” it’s your obsequious fealty to corporate interests and your knee-jerk allegiance to extremist ideologues. You can wear the robe, but you can’t hide in it.

How to capture the Court

How did this happen to us, this installation of a rabidly partisan judicial oligarchy over America’s democratic values and aspirations? I hate to sound conspiratorial, but … this is, in fact, the product of a long-term, right-wing political conspiracy–and there’s even a smoking gun revealing the origins of the plot. It’s a 15-page confidential memo to the Chamber of Commerce, written in 1971 by Lewis Powell–at the time a rich corporate lawyer, consigliere for Big Tobacco, and a Phillip Morris board member.

In his memo, Powell lamented that the likes of Ralph Nader were getting media coverage and legislative action by accusing upstanding corporate citizens (like cigarette makers) of profiteering from wrongdoings such as intentionally selling dangerous products. Powell wailed that poor little Corporate America wasn’t getting the respect it deserved from lawmakers, nor did it have its fair share of power over the nation’s political system. You can practically hear Powell sobbing when he concludes that “with respect to the course of legislation and government action, the American business executive is truly the ‘forgotten man.'”

Never mind that he made this absurd plea for pity at a time the presidency itself was infamously known as Nixon Incorporated, with a cadre of corporate functionaries literally running whole segments of the US government! But absurdity was no barrier to Powell’s grand ideological determination not only to increase the influence of those “forgotten” executives, but to return to pre-New Deal days when their ilk were the supreme, domineering force over America’s government, economy, and society. To get there, Powell’s memo proposed a novel point of attack he labelled “Neglected Opportunity in the Courts.”

He noted that “with an activist-minded Supreme Court, the judiciary may be the most important instrument for social, economic, and political change”–by which he meant structural changes that empower moneyed interests over workers, consumers, et al. Powell proceeds to specify judicial maneuvers for the Chamber and its big funders, conceding that the aggressive offensive “would require far more generous financial support from American corporations. …But the opportunity merits the necessary effort.”

Just two months after Powell sent his memo, Nixon awarded him a seat on the Supreme Court. Although few Americans have ever heard of him, Powell spent the next 15 years on the bench advancing corporate power over us, including writing a 1978 opinion that Roberts & Co. used 32 years later to justify their Citizens United decree.

But there’s much more to this plutocratic attempt to capture the courts than one lawyer’s how-to blueprint. After all, a memo is not a coup. Indeed, it has taken a concerted, surreptitious, two- decade campaign by a consortium of laissez-faire ideologues, dark- money billionaire funders, secretive front groups, top GOP politicos, and many lies by Supreme Court nominees to “operationalize” Powell’s memo.

Today’s tightly knit Republican majority on the court did not come together by happenstance–and certainly not because any one of them was the brightest, most fair-minded choice in the land. All were handpicked by the consortium and escorted to Third Branch rule specifically because they could be counted on the use their lifetime appointments to make our laws accord with the GOP’s right-wing agenda and to return to their imagined ideal of the Grand Old Days of pre-1930s corporate supremacy. This is a direct special-interest assault on workaday Americans and on the very idea of America.

Yet, with only a few exceptions, there’s no ringing of the democracy alarm today, no widespread public expose, discussion, or action: What groups are directing this? Who is financing them? And what tactics are they using? That’s why the Lowdown has dedicated this month’s double issue to the topic–and why next month we’ll be publishing an issue with “who’s who” details.

Lisa Graves, a corporate watchdog and advocate of fair courts, reminds us that “the choice of who interprets the US Constitution and the laws of our land is every bit as important as electing those who make the laws in the first place.” The moneyed elites figured this out years ago and have captured the top court. Now, democracy champions must free it from their corporate grip.

Part 1 of a 2 part series. Read part 2 here.

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The Alliance for Justice was founded in the wake of the infamous Powell Memo urging corporate titans and the US Chamber of Commerce to “to weaponize the courts to serve business interests.” AFJ is a national association of more than 120 organizations working to secure confirmation of “highly qualified, fair-minded, and diverse federal judges.” afj.org

Take Back the Court takes off from the premise, shared by us in Lowdownland, that instead of defending Americans against attacks on their fundamental rights, the right-wing majority on the Supreme Court (expanded in recent years through Trump/McConnell/GOP thievery) “routinely sides with big business and wealthy Republican donors over working families.” Find Take Back the Court’s “Case for Court Expansion” at takebackthecourt.today.

The National Women’s Law Center fights for gender justice, not only in the courts, but also in policy and society broadly, working on issues central to the lives of women and girls–equal pay, child care, abortion rights, and more–and breaking down barriers that harm us all. nwlc.org