Magical Thinking: Supreme Court Justices and the Presidents Who Pick Them
The quintessential lesser evil dodge
In the litany of “reasons” trotted out to “hold your nose and vote for Hillary,” one stands head and shoulders above the others. Sure she may be as flawed as many progressives make her out to be: a neo-liberal who never saw a foreign country she didn’t want to destroy, admits to having two opinions on most subjects a public one (feel-good chestnuts for voters) and a private one (the real agenda full of corporate friendly policies), thinks financial institutions ought to be allowed to regulate themselves, has a dangerously visceral hatred of Russia, while harboring a school-girlish crush on Israel and Netanyahu and has presented a bunch of domestic programs targeted at identity politics voters long on blue sky promises, short on real time fixes to a tattered and shredded social safety net. Put all that on the back burner, the Supreme Court is the real reason all right-thinking democrats and progressives must vote for Hillary. The issues that will be facing the court in the next few years —abortion rights, religious freedom, capital punishment, voting rights and equal protection (for the LGBT community among others)— require a president who has “our” values. It’s axiomatic, isn’t it, that a “liberal” president appoints “liberal” justices who bow to the dictates of their appointers and decide constitutional cases the “right” way, with “freedom and justice for all?”
Presidents are not mind readers
What’s wrong with this argument? Leaving aside the open question of whether Hillary is a fit repository of our hopes for a more humane and responsive judicial system — more egalitarian, less punitive, more respectful of different lifestyles — the more perplexing question is whether any president has the power to successfully predict what side of a question a potential jurist will come down on.
Some would-be justices are foxy
Despite the most scrupulous vetting, history provides evidence that no president can predict with any degree of certainty how closely a judicial appointee will adhere to that president’s view of the constitution—whether liberal or conservative. Two examples make this point. In 1990, President George H.W. Bush was looking to fill a vacancy on the Supreme Court with a conservative “strict constructionist” justice (i.e. emphasis on judicial restraint, particularly on some hot button issues like abortion and affirmative action). He nominated David Souter on the advice of his chief of staff and former governor, John Sununu, who assured him that Souter would be a “home run” for conservatism. To emphasize Souter’s conservative credentials, Molly Yard, then president of NOW (National Organization of Women) testified that “Souter would end freedom for women in this country,” The NAACP urged its members to write their senators to vote no on the Souter nomination, and to seal the deal on his conservatism, liberal senators Ted Kennedy and John Kerry were two of nine senators voting against him.
Dashing the hopes of conservatives in the administration and congress and defying expectations, Justice Souter eventually wound up as a card carrying member of the Court’s liberal wing siding with court liberals on abortion as well as other controversial issues. This miscalculation was widely seen by Republican leaders as a major error of the Bush administration and prompted a rethinking of the vetting process to insure that future selections would truly be “reliable” conservatives.
Twenty-two years later, another “slam dunk” selection gone belly up saved Obama’s signature “achievement,” the Affordable Care Act. In 2012 and 2015, Chief Justice John Roberts, the reliable conservative, selected by President George W. Bush, handed Obama two victories upholding the constitutionality of the ACA and paving the way for its implementation.
Looked at from another angle, what happens when restrictive, civil rights-denying laws promoted by liberal-leaning presidents are subject to judicial review? How likely are appointees to follow their leader like lemmings off the constitutional cliff? Let’s look at two landmark Supreme Court decisions, 78 years apart, with two different outcomes.
[I cannot believe] “the American people will, by means of military arrests during the rebellion, lose the right of public discussion, the liberty of speech and the press, the law of evidence trial by jury, and Habeas corpus, throughout the indefinite peaceful future . . .” (Abraham Lincoln before the 1864 election)
In 1862, President Lincoln signed into law General Order number 141 suspending habeas corpus (a writ requiring a person to be brought before a judge or court to protect against illegal imprisonment) and paving the way for civilian prosecutions in military tribunals. In 1864, in the midst of the Civil War, Lambdin Milligan and three other civilians were tried before a military commission charged with conspiracy against the US, offering aid and comfort to Confederates and inciting rebellion. A military tribunal convicted the four on all charges and three of them, including Milligan, were sentenced to hang. In 1866, the Supreme Court agreed to decide whether the Constitution prohibited civilians from being tried before military commissions. The Court’s decision was a resounding YES “martial law can never exist when the courts are open.”
To put the icing on the cake, the opinion was delivered by Justice David Davies, a Lincoln appointee, close friend of the president and his campaign manager in 1860. His decision, “If this be conceded [presidential power to impose martial law], the danger to human liberty is frightful to contemplate” unequivocally denied Lincoln the power to enforce martial law.
78 years later, the Supreme Court was called on once again to adjudicate a presidential executive order that cut at the heart of American democracy “that all men are created equal, that they are endowed by their Creator with certain unalienable rights…life, liberty and the pursuit of happiness.” and did incalculable harm to the protections in the fifth amendment [No person shall be… deprived of life, liberty or property without due process of law]. Unlike Justice Davis in 1866 who dared to “bite the hand that fed him,” this crop of justices upheld the second most chilling decision (taking first place hands down, Truman’s decision to drop nuclear bombs on the people of Hiroshima and Nagasaki) of an American president in the twentieth century. In Korematsu v. United States (1944), six of the 8 Justices FDR appointed, three of whom to this day are considered liberal icons, decided that the forcible relocation of about 120,000 American citizens of Japanese origin from their homes and businesses to internment (translation: concentration) camps was constitutional. FDR may have won in the short term, but the stain on America’s reputation was permanent, tarnishing the American brand around the world and strengthening US credentials for a top spot on the world’s Hall of Shame.
“He that is good for making excuses is seldom good for anything else.” (Benjamin Franklin)
Let’s take a gander at the tortured reasoning and failed logic two of the affirming justices used to rationalize this monumental blunder. Justice Hugo Black, who delivered the majority opinion, went to great lengths to deny that this was a racially motivated decision (he failed to explain why German Americans and Italian Americans were not subject to the same order) but a precaution warranted by the judgment of military leaders who must know what they’re talking about (more than 70 years of failed ‘military actions,’ including Vietnam have shown how hollow that confidence is). Felix Frankfurter, in his concurrence, made the bizarre claim that the substance of the order was irrelevant to its constitutionality “To find that the Constitution does not forbid the military measures now complained of does not carry with it approval of that which Congress and the Executive did. That is their business, not ours.” William O. Douglas, another FDR appointee who voted to uphold the order, had the good sense to keep his powder dry and limit his exposure to a Yes vote.
[Her father] “would be horrified if he saw that the Obama administration is locking up Central American mothers and children in detention camps, also in the name of national security.” (Daughter of Fred Korematsu, 2015)
Korematsu has a long tail as Robert Jackson, one of the two FDR appointees who voted against FDR, wrote in a dissent that qualified him for Delphic Oracle— “once a judicial opinion…show[s] that the Constitution sanctions such an order [FDR’s exclusion order] the principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. You know you’re in trouble when even a far right justice like the late Anton Scalia comes out swinging “Of course Korematsu was wrong…But you are kidding yourself if you think that the same thing will not happen again.”
Korematsu has never been formally overturned.
At a time when the US is involved in wars in 7 countries and counting and a committed war hawk is poised to become the 45th president, the notion that her election will keep the Supreme Court on the straight and narrow is preposterous.
As we have seen, the risk of hitching one’s wagon to a presidential nominee in the hope of changing or perpetuating the ideological makeup of the Court is at best a huge gamble and at worst a losing strategy. And, as occurred in numerous cases, when the nominee does follow the bidding of his or her appointer, great damage to civil liberties is the result. In Korematsu, a majority of the justices put their loyalty to the president who appointed them above their duty to the citizens they were appointed to serve. Korematsu is an extreme, but by no means singular example of a president celebrated for a whole raft of social welfare legislation (social security, minimum wage legislation) using the fear and insecurity surrounding a war to enact laws to restrict freedom and curtail liberty. Whether it’s World Wars I and II, the cold war, the global war on terror (GWOT), war is both reason and excuse for government-sponsored fear mongering to convince the public that the loss of civil liberties is infinitely preferable to the destruction posed by the encroaching menace du jour —Communism, Islamic terrorists, the Russians, Iranians, North Koreans and whoever else pisses off the empire.
[I can] “imagine no greater disservice to the country than to establish a system of censorship that would deny to the people . . . their indisputable right to criticize their own public officials.” (Woodrow Wilson still in campaign mode before he signed the 1918 Espionage Act)
Whenever it suits their purposes, Presidents play fast and loose with the Constitution. President Woodrow Wilson, on his way to committing US bodies to a war (WW1) he promised to keep us out of, compelled a supine congress to pass two laws (Espionage Act of 1918 and a 1919 Amendment) eliminating the civil liberties protected by the first and fourth amendments. Convictions under these laws did not go unchallenged. In 1919 three cases went to the “court of last resort,”— in one case, a group of Socialists were convicted of impeding the war-time draft, in another, a labor leader and five-time Socialist Party presidential candidate (Eugene Debs) was convicted of fomenting mutiny and treason by calling for draft resistance, and in the third, a group of anti-war activists were convicted of inciting resistance to the war effort and urging curtailment of the production of essential war materials. All the convictions were upheld. In two of the three cases, the liberal side of the bench went on a tear against the protestors. The progressives’ favorite justice, Oliver Wendell Holmes, Jr., appointed by Theodore Roosevelt, wrote the opinion upholding the Espionage Act. He was joined by another liberal “lion,” Louis Brandeis (appointed by Wilson), militant crusader for social justice, dubbed the “People’s Lawyer” for his advocacy of public cases. The Espionage Act was never overturned and has been used by President Obama to arrest and convict eight whistleblowers sending several of them to jail.
[Family detention camps] “are an effective and humane way to keep families together” (Obama administration in the wake of thousand of children and families seeking asylum in the US)
So it goes. For every period of dislocation and war, a spate of due process outrages occurs hollowing out the concept of judicial review. In 1942, FDR, like Lincoln before him embroiled in a major war, issued executive order 2561 setting up military tribunals and establishing the concept of unlawful combatants. Eventually, two American citizens (8 men total) were convicted by a military tribunal and sentenced to hang. In a unanimous decision the Supreme Court upheld their convictions—“citizens who associate themselves with the military arm of an enemy government and…enter this country bent on hostile acts are enemy belligerents.” (Ex Parte Quirin). Liberal justices, William O. Douglas, Robert Jackson, Felix Frankfurter and Hugo Black, in full retreat from their love affair with social justice and progressive values, joined in the majority opinion. Quirin is still on the books and has been and is likely to be cited again by a future administration as a precedent for trial by military commission of any “unlawful combatant.” In 2011, the Obama administration revived military commissions and issued this statement “Military commissions should proceed in cases where it has been determined appropriate to do so [and] are appropriate for trying enemies who violate the laws of war, provided that they are properly structured and administered.” Shades of) Quirin (1944)
“If cops are not doing stop-and-frisk, they are not doing their jobs… If you do away with stop-and-frisk, this city will go down the chute as fast as anything you can imagine.” [William Bratton, ex NYC Police Commissioner, now executive at Teneo, a company with deep ties to Hillary and Bill]
Judicial outrages are immune to the notion that appointment of the “right” justice(s) will prevent them. For 50 years, the courts have wrestled with the question of the legitimate use of force by the police, specifically a particularly egregious technique known as “stop and frisk.” The Supremes opened a Pandora’s box of abuses in a 1968 decision, Terry v. Ohio that highlights the sorry history of the relationship between Supreme Court justices and the presidents who appoint them. The Terry decision gave police carte blanche to stop individuals on the street on the basis of “reasonable suspicion” (not probable cause) that a crime has been, is or is about to be committed. The definition of a legal “frisk” left the doors wide open for police misconduct, requiring only a “reasonable belief” that the individual was “armed and presently dangerous.” As a result of Terry, with help from tough on crime campaign rhetoric by police commissioners and mayors of large cities, including New York, hundreds of thousands of mostly young, mostly minority men became subject to this humiliating and degrading procedure. The Terry case has spawned a raft of equally flawed decisions —a state law requiring a “suspect” to identify himself during a “Terry” stop, car compartments that may be legally searched if the police have a “reasonable suspicion” that the “suspect” is armed and dangerous, and a 2009 ruling by the Court expanding “stop and frisk” to individuals pulled over in a traffic stop if police have “reasonable suspicion” to believe any one or all of the car’s occupants are armed and dangerous (in that decision, Arizona v. Johnson, the entire liberal bench voted for the expansion— Ruth Bader Ginsburg wrote the unanimous verdict, Stephen Breyer, David Souter and John Paul Stevens concurred.) Terry itself was an 8-1 decision with liberal justices in the majority. Earle Warren delivered the majority opinion with his liberal colleagues, Thurgood Marshall, Byron White, Abe Fortas and William Brennan. The exception: William Douglas.
In his no-holds-barred dissent, Justice Douglas reminds us that the courts cannot and should not be a vehicle for change. Legislative action is the only way to build the free, peaceful and just society that is now little more than a talking point: —“To give the police a greater power than a magistrate is to take a long step down the totalitarian path. Perhaps such a step is desirable to cope with modern forms of lawlessness. But if it is taken, it should be the deliberate choice of the people through a constitutional amendment.
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