Musical Chairs – The Supreme Court of the USA

by Vijaya Chanderasoma

According to Article III Section 1 of the United States Constitution, “The judicial power of the United States shall be vested in the Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”

The first Congress of the United States established a Supreme Court with six Justices in 1789. Supreme Court Justices enjoyed lifetime tenure then, as they do now. The Constitution empowers Congress to determine the number of sitting Justices, according to prevailing exigencies of the nation. The number of Justices on the Supreme Court changed six times before Congress settled on the present total of nine in 1869.

The framers of the Constitution expected that the Supreme Court be an independent body, composed of Justices who will interpret and adjudicate on any case before them according to the Constitution and the merits of the case. In short, the Supreme Court is not expected to make the law, it is supposed to interpret and adjudicate the law.

Unfortunately, the modern Supreme Court is not the independent, non-partisan body envisioned by the framers of the Constitution. It reflects the policies and values of the president in power at the time a vacancy occurred. So the composition of the Court depends, at any given time, on a game rather like Musical Chairs, where the incumbent president will appoint to the Court a Justice receptive to his political philosophy when the music stops at the death, impeachment or resignation of a sitting justice.

The music stopped last month when Justice Ruth Bader Ginsburg, a progressive Justice appointed by President Clinton in 1993, died after 27 years of distinguished service. President Trump gleefully nominated a Justice who is undoubtedly well-qualified and, more importantly, is in harmony with the radical right-wing values of the Republican Party.

It has long become a tradition, even a decree, for a sitting president to appoint Justices who are faithful to the values of his own party, and expect that those appointed will conform to party lines, conservative or progressive, in the future. While the tenure of the appointing president is restricted to two terms, Justices, appointed with lifetime tenure as they are, are not so constrained. Therein lies the anomaly that has plagued the independence of the Court in recent times.

Judge Barrett’s confirmation hearings before the Senate judiciary committee began on Monday, October 12, with the Republican controlled Senate hell bent on having Barrett confirmed before the election, and packing the Court with a right-wing majority which will endure during the next generation.

Republicans are using the Supreme Court not to benefit the future of the country but to ensure the survival of their party. The final confirmation vote of Judge Barrett, the result of which is already a foregone conclusion, will be scheduled for the week of October 26, well before Election Day on November 3.

Judge Barrett is an ultra-conservative jurist. She is a “handmaid” (a high ranking female leader) of a cult-like religious community, People of Praise, a Christian organization which opposes abortion, and holds that “men are divinely ordained as the ‘head’ of both the family and faith, while it is the duty of wives to obey them.” She endorses Originalism, “the judicial interpretation of the Constitution which aims to follow closely the original intentions of those who drafted it”.

Originalism demands a strict interpretation of the original Constitution which denies the inexorable progress of societal norms. If this principle is to be taken seriously, we would live in a very different society, one in which segregated schools under the law and governmental discrimination against women, gays and lesbians would be permissible; where a black man would be worth 3/5ths of a white man, and a woman of any color worthless.

Describing her legal principles, Barrett said in her opening statement to the Senate Judiciary Committee: “As a judge on the Seventh Circuit, I have carefully considered the arguments presented by the parties, discussed the issues with my colleagues on the court, and done my utmost to reach the result required by the law, whatever my own preferences might be.”

Judge Barrett has refused to answer hot button issues, posed by Democratic Senators and Vice Presidential Candidate Kamala Harris, throughout the Senate hearing. She protested vehemently that she has no political agenda, and denied she had been subjected to any political pressure by the President on her rulings on the Affordable Care Act (Obamacare), which will be the first case she will hear after her appointment, or on any other issue. She stated that the opinions contained in her papers and opinions in the past, which expressed her strong objections to Roe v. Wade, the landmark Supreme Court ruling of 1973 guaranteeing women’s right to reproductive freedom, and Obamacare, will in no way influence her rulings in the future.

Senator Feinstein pointed out that when Trump announced her nomination, he said that “the elimination of the Affordable Care Act would be a big win for the American people”, both in the short term and for decades to come. A “win” that would strip tens of millions of Americans of their healthcare insurance cover with a fast-approaching, cold, hard winter, in the throes of a pandemic showing no signs of abatement.

Responding to Democratic Vice Presidential candidate, Senator Kamala Harris via teleconference, Barrett made the incredible claim that she was not aware of the Trump campaign promise that he would nominate to the Court a Justice committed to repeal Obamacare. Her response: “I do not recall”. Trump’s anti Obamacare tweets have been, over the years, as self-serving as they have been numerous.

Trump has repeatedly lied that he has a replacement healthcare plan which will be immediately available after the repeal of Obamacare. This so-called “new plan” has been as diligently guarded as Trump’s tax returns. The difference being that Trump’s tax returns do exist and will not be divulged because they will incriminate the president and land him in prison, while a replacement healthcare plan exists only in Trump’s alternative universe.

Barrett concealed her virulent anti-abortion beliefs from the Senate Judiciary Committee in a questionnaire she completed before her confirmation hearings. She has also paved the way at the Senate hearing to repeal Roe v. Wade on the grounds that the 1973 ruling was not settled law, not a “super precedent” and so subject to challenge.

Barrett also maintained that she will make any decisions on potential disputes in the upcoming elections based on the facts of each case, and not on political grounds or presidential pressure.

Of course, every Justice, on nomination to the Court by Republican or Democratic presidents, swear that they will maintain their judicial independence during their tenure; that they will not be swayed by political pressure on the outcome of any case brought before them. And then every one of these Justices, Republican and Democrat, proceed blithely to base their rulings on political and party lines on the cases before them. Everyone knows that they have been appointed precisely because of their complicity of laws/rules dear to the appointing president. Barrett is no exception. She is a prime example of the sycophancy currently demanded of Supreme Court Justices.

Barrett will join the two other Trump Supreme Court stooges, Gorsuch and Kavanaugh, in impeding laws on gun control (Barrett is a darling of the National Rifle Association – the gun lobby), climate change, LGBTQ rights, the minimum wage, compassionate immigration reforms (sans caged children!), social and economic justice, and a host of other progressive, democratic socialist measures becoming increasingly popular, especially with the younger generation of Americans.

Most importantly, Trump needs a packed Court which will rule on his behalf on any cases he will bring in the event of a disputed 2020 presidential election, in the certain knowledge that a captive Supreme Court will gift him a disputed or even a lost election, a la Al Gore in 2000. In fact, Trump and McConnell are getting this confirmation approved at warp speed with this very purpose in mind.

The Biden/Harris ticket has studiously sidestepped responding to questions about changing the composition of the Court. However, packing the Court with Justices of independence and integrity may be the only path available to the Democrats to mitigate the deleterious effects of a partisan Republican judiciary for decades to come; and to combat an impending threat to a return to a pre-FDR America, Jim Crow, depression and all.

After all, Mitch McConnell packed the Court when he denied President Obama’s nominee for the Court, Merrick Garland, even a Senate hearing, even though the nomination was made a full eight months before the end of Obama’s term in 2016. While McConnell is rushing the nomination of Barrett even while a presidential election is in progress.

Trouble is, Democrats will have to win the presidency, flip the Senate and keep the House if they are to seize the power to address the existing inequalities in the Supreme Court. Not an unlikely scenario, given the evidence of current polls.

However, the real test would be to overcome fraudulent efforts by the Republicans to nullify/falsify election results, to legally/forcibly extricate Trump from the White House on his likely defeat, and to mitigate post-election violence which will inevitably follow a Trump defeat.

On an unrelated note, during the Senate hearings, when fatalities caused by a raging Covid19 reached 215,000, with up to 1000+ Americans dying every day, and 30 million Americans unemployed with no prospect of government relief, President Trump was dancing to the music of the Village People classic YMCA at a “super-spreader” campaign rally in Florida.