No Supreme Court For You!

For most of my life, the Supreme Court has been dominated by its right wing. In fact, that's true of most of the history of our country; the Warren Court of the 1950's and 60's was the exception to a general tendency of the Court since the founding of the Republic to favor the rich and powerful. The Constitution was written, after all, by the landed gentry, not the Daniel Shayses, John Frieses, and Crispus Attuckses.

I alluded in this week's cartoon to the lack of requirements laid out in the U.S. Constitution for Supreme Court Justices. We can be fairly sure that the Founding Fathers would have strongly disapproved of a foreign head of state sitting on the Court; but whereas the Constitution sets limits on who may or may not be a president, vice president, congressional representative or senator, the sole defining characteristic set for justices is that they "shall hold their Offices during good Behaviour."

"Nine Old Men," unsigned (William Gropper or Jacob Burck, perhaps?), in New Masses, New York, March 9, 1937

Even the size of the Supreme Court is unspecified. In the history of the United States, the sitting members of the Supreme Court as been as few as six; Franklin Roosevelt was rebuffed in his attempt to expand the Court in a scheme that would have allowed him to add as many as six new justices to the sitting nine. If and when the Republicans lose their grasp on the other two branches of government, I wouldn't be surprised if they were hastily to double the size of the Supreme Court while they could still fill the new seats.

Donald Joffrey Trump's executive order this week to ban affirmative action programs in college admissions recalls the Court's attempt to thread that needle in Regents of the University of California v. Bakke in 1978. In the interest of meeting a set quota for minority enrollment, UC had admitted some minority students whose test scores were lower than white male Alan Bakke's. In a complicated set of four rulings, the Court ruled that UC should admit Bakke, and that the quotas violated the 1964 Equal Rights Act, but that the Equal Protection Clause allows race to be taken into consideration in college admission policies. Sort of.

Ronald Reagan's advanced age was an issue in the 1980 presidential campaign, but five of the justices on the Court were older than he. This cartoon from my sketchbook shows Justices William Brennan, Thurgood Marshall and Harry Blackmun, counted as the Court's liberal wing. (Conservatives Lewis Powell and Chief Justice Warren Burger were also older than Reagan.) Reagan came into office in 1981 determined to stack the court with reliable right-wing jurists hostile to minority rights, reproductive rights, unions, environmental protection, and a whole host of liberal causes.

Nevertheless, his first appointment, of Sandra Day O'Connor to replace Justice Potter Stewart, was received favorably, except by some right-wingers who suspected that a woman would be soft on Roe v. Wade. But when Burger retired, Reagan named Justice William Rehnquist, the most hardline conservative on the Court, to replace him as Chief Justice, and conservative firebrand Antonin Scalia as the Court's newest Justice.

In addition to Reagan's successful nominees in the center of the above cartoon, I imagined them being joined by Reagan administration officials Donald Regan, William Clark, Robert Bork, and Ed Meese, plus Clint Eastwood and Nancy Reagan. Reagan would indeed name Bork to the next vacancy, but the Democrat-led Senate voted Nixon's Saturday Night Massacre henchman down, 42 to 58.

The legacy of the Bork nomination was the creation of a verb ("Borking" has proved so much catchier than "Fortasing" or "Garlanding"), and the end of Republican nominees to the Court willing to admit to their prejudices against Roe v. Wade. It also led to Mr. Kennedy's nomination to the Court, for which, at least, LGBTQ Americans can be thankful. On the other hand, President Obama would likely have been the one to nominate the successor to Justice Bork, who died in December 2012 at age 85.

The last of the Warren Court liberals, William Brennan and Thurgood Marshall, retired during the George H.W. Bush administration, succeeded by David Souter and Clarence Thomas, respectively.

Liberals have had fewer opportunities to change the direction of the court. The most significant may have come with the retirement of Justice Byron White in 1993. Appointed by President Kennedy, he nevertheless tended to vote with conservatives: he and William Rehnquist were the only dissenters in Roe v. Wade, and he wrote the majority opinion in Bowers v. Hardwick giving the Court's blessing to laws criminalizing gay sex even between consenting adults in the privacy of one's home.

President Bill Clinton replaced White with Ruth Bader Ginsburg, who has since become the senior and possibly most vocal member of the Court's liberal wing.

More telling of the rightward drift of the Court, however, is the conventional wisdom that cast first Sandra Day O'Connor, then David Souter, then Anthony Kennedy in the role of casting "The Swing Vote." Never were they considered a "swing bloc" on the Court; only as one retired would the next sit in the supposed "swing" seat. (I suppose Kennedy's retirement makes Chief Justice John Roberts the Swing Vote now.)

Since America's bicentennial, Democrats have seated four justices on the Court; Republicans (assuming a swift confirmation of whomever Trump names next week) have seated nine.

That includes the most rigidly conservative examples of Clarence Thomas and the late Antonin Scalia, about whom I've devoted blog posts in the past. Today, I'm trying to widen the focus to the entire Court, but there are a few cartoons here I'm repeating from those earlier posts anyway.

I've always liked this cartoon, largely because I enjoy breaking the boundaries of a cartoon panel this way and I don't have an excuse to do it very often.

The friendship between the ideologically opposed justices Ginsburg and Scalia was legendary, but we're told that this sort of comity across ideological boundaries is a thing of the past.

American right-wingers have been salivating at the chance to overturn Roe v. Wade, and we'll soon see what else: Obergefell v. Hodges? Bob Jones University v. U.S.? Miranda v. Arizona? Loving v. Virginia? Shelley v. Kraemer? West Virginia State Board of Education v. Barnette? Smith v. Allwright? Near v. Minnesota? U.S. v. Darby Lumber?

Enjoy our return to the Gilded Age of robber barons, white patriarchy and sweatshops, folks.