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.

Q Toon: Trump Comes a-Courting

With the announced retirement of Anthony Kennedy, Donald Joffrey Trump gets to name a second Supreme Court Justice in as many years. If anyone thought that America's foray into reactionary totalitarianism would be but a four-year fluke of history, anyone is about to be proven sadly mistaken.

Senate Majority Leader Mitch McConnell, having bottled up President Obama's appointment of Merrick Garland for nearly a year, promises to grease the skids for whomever Trump names. I'm sure Mr. Kim will continue in his current job; Trump's nominee will probably be someone from that list of ideologues vetted by the Heritage Foundation.

But Mr. McConnell's record suggests that Trump could nominate Beelzebub himself and Mitch would shrug and go along with it.

Q Toon: Devil's Food in the Details

Sorry I'm late...

We're assured that the Supreme Court's 7-2 ruling in Masterpiece Cakeshop v. Colorado does not give carte blanche to bakers, photographers, florists and lunch counters to claim a religious right to discriminate against customers.

No, the justices tell us that this case was all about how the Colorado Civil Rights Commission mistreated the baker after he refused to bake a wedding cake for a couple getting married. One of the commissioners charged that religious justification of discrimination has been historically "despicable." Writing for the majority, Justice Anthony Kennedy wrote,

"The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s antidiscrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.
"The record shows no objection to these comments from other commissioners. And the later state-court ruling reviewing the Commission’s decision did not mention those comments, much less express concern with their content. Nor were the comments by the commissioners disavowed in the briefs filed in this Court. For these reasons, the Court cannot avoid the conclusion that these statements cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case." 

In their dissent, Justices Ruth Bader Ginsburg and Sonya Sotomayor noted that the couple had not asked Masterpiece Cakeshop to include any pro-marriage equality text on their cake, and were turned away because of their identity as a same-sex couple. Justices  Elena Kagan and Stephen Breyer noted as much in their concurrence with the court's conservative majority, but were swayed by that commissioner's going all Christopher Hitchens about the case.

So let this be a lesson to all friends of the LGBTQ community, as well as all liberal-minded people in general. I appreciate that it's frustrating to live under the Corrupt Trump-McConnell-Ryan, Republican-gerrymandered-statehouses regime, but we all bear the burden of watching our tongues.

Go overboard criticizing a homophobic baker's religion, and it becomes all about you.

Hurl a sexist slur at Ivanka Trump after Roseanne Barr loses her TV show, and that becomes all about you.

Start your introduction of Bruce Springsteen at the Tony Awards with a four-letter verb plus "Trump," and even his locking immigrant children in cages, insulting our closest allies, and giving the Korean peninsula away to Kim Jong Un become all about you.

Gosh, I hope I haven't offended any right-wing snowflakes just now.

Remembering Scalia

As promised when I posted this week's cartoon, Supremeback Saturday rummages through the dank and musty files of my early cartoons throughout the admagistracy of Supreme Court Justice Antonin Scalia. (Enbiggenification available when beclickened.)

It was 1986 and Ronald Reagan was in his second term. So far, he had named Sandra Day O'Connor to the Supreme Court, filling a 1980 campaign promise to name the first female Justice. The liberal wing of the Court consisted of Justices Harry Blackmun, Lewis Powell, Thurgood Marshall, and William Brennan (not pictured: John Paul Stevens); Reagan clearly itched for some of them to retire.

Next to Reagan in this February, 1986 cartoon are Attorney General Ed Meese, and Appeals Court Judges Robert Bork and Richard Posner (both Reagan appointees). Is that Scalia peering over Meese's suitcase? I don't remember whether I already knew who he was or what he looked like; but that's not how I drew Nixon, and it doesn't quite look like Pat Buchanan or Joe McCarthy, either.

Nevertheless, it was Antonin Scalia's name that came up a few months later when Reagan's next opportunity to shape the Court arose. Liberals were none too enthused by Scalia's nomination, but the higher profile appointment was that of William Rehnquist to succeed fellow Nixon appointee Warren Burger as Chief Justice of the Supreme Court. (Scalia was appointed to replace Rehnquist as Associate Justice.) Rehnquist was the most right-wing justice on the court at the time, having been the lone dissenter in Ake v. Oklahoma (1985), Bob Jones University v. U.S. (1983), Richmond Newspapers Inc. v. Virginia (1980) and Taylor v. Louisiana (1975). Rehnquist had also recused himself in the otherwise unanimous U.S. v. Nixon (1974).

Scalia and Rehnquist were easily confirmed anyway, and this cartoon from July, 1986 predicted that they would be joined by Donald Regan, William Clark, Bork, Meese, Clint Eastwood, and Nancy Reagan; and that claims of discrimination would become much harder to prove.

Reagan did in fact name Robert Bork to the court the next year, when Justice Powell retired; but you may remember that the Democratic Senate refused to confirm his nomination and Republicans turned his name into a verb. The Senate eventually confirmed Anthony Kennedy, in an election year, as your liberal Facebook friends have already reminded you several times. (The time between Bork's nomination and Kennedy joining the Court -- even with the aborted nomination of pot-smoker Douglas Ginsburg in the interim: 233 days.)

The first of my cartoons in which Scalia gets the starring role was in June, 2003, after Scalia's caustic dissent in Lawrence v. Texas. The case arose from the arrest of John Lawrence and Tyrone Gardner, whom Houston police found having consensual sex in Lawrence's home when they responded to an unfounded weapons complaint. The Court's decision, written by Justice Kennedy, was that Lawrence's and Gardner's right of due process was violated by Texas's laws outlawing homosexual activity between consenting adults.

Scalia scolded the majority for overturning Bowers v. Hardwick (1986) and predicted a parade of horribles: an end to state laws against obscenity, bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, and bestiality.

"Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.... [T]he Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed."

Two years later, this happened:

I'm sure that today, that kid is a well-respected junior partner somewhere.

There have been two Justices on the Supreme Court whom I have particularly enjoyed drawing, and it's amusing to learn that in spite of their diametrically opposed views on so many constitutional issues. and the lively exchanges in the opinions they have authored, they were actually very close friends who shared a love of opera and celebrated New Year's Eve together year after year.

When the Court struck down the "Defense of Marriage Act" (DOMA) in U.S. v. Windsor (2013), Scalia's dissent wailed that the Court had "formally declar[ed] anyone opposed to same-sex marriage an enemy of human decency."

And finally, last year, Scalia's prediction of the end of civilization was fully realized, as the Court voted 5-4 in favor of marriage equality in Obergefell v. Hodges. Each of the minority judges wrote his own dissent; Scalia called the decision "a threat to democracy." Contrast the "mummery" of the majority opinion with the sheer poetry of Scalia's uffish thoughts:

"Really? Who ever thought that intimacy and spirituality were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie."