Is SCOTUS still “supreme?”

Recently, in the face of the “Roe v. Wade scandal,” U.S. Supreme Court (SCOTUS) Chief Justice John G. Roberts, Jr. advocated for the Court’s “extremely resolute” staff in the wake of a leaked draft opinion, saying the “appalling” breach of trust by “one bad apple” should not sully their reputation.

Not helpful was the concurrent salvo fired by Clarence Thomas, currently the longest-serving member of SCOTUS, defiantly declaring the justices will not be “bullied” into handing down decisions the American people want. Some on social media are taking offense and pointing to the reported and highly inappropriate actions of his far right-wing activist wife, Virginia (Ginni) Thomas, in the weeks and months after the 2020 election.

From the “battlefield” there are those in Congress who have questioned the lack of a SCOTUS code of ethics – something members of the Court appear to have shrugged off in the past, as well as during the present heated confrontation. The nine sitting justices on the only federal court in the land to resist accountability appear to be “roaming the range of accountability” without fear of restriction.

There is nothing written anywhere that requires them to be responsible for their actions, so why should the marital duo of Justice and Ms. Clarence Thomas fear any consequences for their going well beyond what anyone, founding fathers or otherwise, ever contemplated involving a sitting justice?

All the “to do” is about a leaked draft of the pending Roe v. Wade opinion of SCOTUS that circulated on February 10, 2022. Why has the Court left the public “hanging” when all the activity surrounding the decision is heating up?

Could it be that SCOTUS is trying to decide how to prepare for the public outrage when the “boom is finally lowered,” but can’t quite get it right yet? If this is the case, SCOTUS might want to consider that the embers of public concern and uncertainty will only intensify as time passes so that the ultimate announcement, either way, could erupt into dangerous mass demonstrations more so than any of those in today’s climate.

Into the “fire” come SCOTUS “newbies,” the three justices nominated by former President Donald Trump – Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – accused of lying during their confirmation hearings, a process which more critics are acknowledging “is absolutely deeply flawed.”

Despite swearing under oath that they “are going to be judicious and good shepherds of the Court and its impartiality… and that the stare decisis says that the precedent of these cases is well established,” some commentators have charged that once on the Court justices have decided in a manner that’s “dramatically opposed to what they said during the confirmation hearing.” Apparently these candidates for confirmation were so excited about the prospect of appointment to the highest court in the land, they conveniently forgot about that annoying little thing called transparency.

This has created a heated debate as to whether these three justices “knew” at the time they would later vote to overturn the decision, “and they lied about it.” Cleverly, each of these justices did affirm the precedent established by the landmark 1973 decision, but none actually said outright they would vote to uphold it.

The concern is that this could fester “potentially forever,” impinging on the ability of the justices to perform their responsibilities under the Constitution, because of the taint with which this has soiled the historically reasonably credible reputation of the Court. When one considers there really is no authority above SCOTUS when it comes to decisions of law, this is serious business!

States such as Connecticut have decided to move on their own to protect a woman’s right to abortion. That state has enacted legislation that will protect people traveling to the state for abortions; those who aid them as well as in-state providers from legal proceedings under laws outside Connecticut. This would expand the list of medical providers who can perform the procedure in the state. Connecticut Gov. Ned Lamont (D) has declared he would like to sign the bill as soon as possible.

Lamont stated he would like to sign the bill promptly and that ending a woman’s right to choose “is not going to happen in the state of Connecticut. Not if I’m here. No politicians are going to get between you and your doctor. You make the choice.”

The decades-old position of Republicans has been opposition to “activist judges” who “legislate from the bench.” But that was before they succeeded, during the Trump presidency, in stacking SCOTUS with conservative ideologues. Now, after “hearing the message,” they have discovered a change of heart.

They are now enthusiastically and hypocritically encouraging a group of “rightwing justices who seem eager to strip Americans of their right to reproductive freedom” in the hysterical effort to “sew more discord in a deeply divided nation.” The embarrassment of this hangs over the Court. The word is that SCOTUS Justice Samuel Alito (author of the tentative opinion) seems reluctant to appear in public. Is there anyone who wonders why?

On the other hand, Senate Democrats have retaliated, planning legislation to codify Roe in federal law. However, this is like “blowing in the wind” because from all indications the bill has little chance of passing since Democrats in the chamber cannot meet the 60-vote filibuster threshold to pass it. The bill would go beyond what Roe now permits by overriding all state-level restrictions.

In another development in this crazy sequence of events, Senator Susan Collins (D. Maine), pressured by activists to lead a call to impeach SCOTUS Justices Kavanaugh and Gorsuch, issued a statement. Collins noted that if the current draft of the Alito opinion is the final decision by SCOTUS, it would not be in line with their statements during their confirmation hearings or private meetings with Congress.

And then there is Justice Amy Coney-Barrett, who also led the Senators far afield, especially in view of her past membership in a pro-life organization and suuport to overturn Roe.

The significance of this “wiggle testimony” is the failure of justices to directly respond in a forthright manner toquestions propounded by senators during confirmation hearings.

Historically, the G.O.P could have been relied on to consistently attack the Roe case, but not now. With the demise of the previous precedent imminent, their congressional representatives, along with anti-Roe opponents around the country, are suddenly silent. Obviously, this is part of an effort to avoid a backlash against their party as midterm elections are approaching.

Along with this phenomenon, Thomas has risen to the challenge of defending the Court with the admonition: “People need to ‘live with outcomes we don’t agree with.” Of course, he has said nothing about the part he and four of his colleagues have played in securing the low ratings citizens have given the Court as it continues to seek to avoid the negative limelight it has achieved in their eyes. This translates to: Suck it up. This is what we are doing because we can!

Former U.S. Attorney and Deputy Assistant Attorney General Harry Litman said it all when he rolled his eyes during a television interview. He ridiculed comments made by Thomas at a legal conference where Thomas whined about the leaked first draft opinion from colleague Alito that he would overturn Roe “after almost 50 years.”

Allegedly, Thomas told the audience that, “we are becoming addicted to wanting particular outcomes, not living with the outcomes we don’t like. We cannot be an institution that can be bullied into giving you just the outcomes you want. The events from earlier this week are a symptom of that.”

It was obvious Litman had few positive things to say about the justice who has been on the “hot seat” for the part his wife played in the campaign to overturn the 2020 presidential election. Perhaps the Thomas’ were hoping that if Trump got re-elected, the justice might receive the presidential nod to replace Roberts as chief justice should that chair open earlier than expected.

When asked about what he thought of Thomas’ comments, Littman noted that, “the irony is so thick you wonder if it’s maybe a Clarence Thomas impersonator…[Here] is a guy who has spent a lifetime trying to take a battering ram to all the Supreme Court major precedents...and is now saying people don’t respect the law enough…even leaving aside all the controversies he has engendered as has his wife…He really is leading with his chin, let me put it that way [and] Alito’s first draft [is] really impoverished.”

Republicans have blamed the left for leaking a draft opinion that would overturn Roe, but New York Magazine columnist Jonathan Chait says, although the Republican claim could be correct, the evidence points toward an abortion opponent on the right “to put public pressure on the justices to rule in a certain way.”

An editorial published April 26 claimed that Chief Justice John Roberts was trying to persuade one of the Court’s conservatives to join him in a more moderate ruling on a Mississippi case, Dobbs v. Jackson Women’s Health Organization. In stepping back from overturning the landmark abortion ruling, Chait notes how closely the Journal called it – he speculated that “if [Roberts] pulls another justice to his side, he could write the plurality opinion that controls in a 6-3 decision. If he can’t, then Justice Thomas would assign the opinion and the vote could be 5-4. Our guess is that Justice Alito would then get the assignment.”

That is exactly what did happen, based on the draft opinion that Roberts confirmed was legitimate. Chait said the editorial points to the likelihood that someone on the right leaked the opinion to keep another justice from joining Roberts in moderating the ruling. “If a bank employee stole a small amount of money from the safe and then, days later, there was a huge robbery from the same safe, who would be your first suspect?” he wrote.

To make matters worse (if that can be so), Chait advances the thought that the leak came from the right to compromise the left!

During his time as a member of SCOTUS, former Justice Antonin Scalia tried to convince his fellow members of the Court in the majority that they could not “settle once and for all” the dispute over abortion. He lost that argument then, but today the Roe controversy is vindicating him. Scalia thought this was outlandishly wrongheaded and said so in a dissent that looks farsighted 30 years later. Not only did the Court fail to calm the political waters on abortion, it also made itself central to the political and moral argument over the issue.

Then there is former U.S. Attorney General William Barr. He has been adamant that the person who leaked the drafted opinion should be behind bars, though legal experts have not been certain its release was a crime. It would take more space than this to delve into all the “what if’s” of this astounding historical development. However, suffice it to say, there must be an overload of other assumed versions of the story and its details.

But it does seem reasonable to conclude that trust in one of our major institutions - the most important – is the victim. The feeling is that while by tradition the Court is Robert’s to lead he is not doing so. The other five conservative justices (Thomas, Alito, Gorsuch, Kavanaugh and Coney Barrett) are in control.

There is no way to know why Roberts seems to have taken a neutral approach, allegedly responding only when directly presented with questions or suggestions. He has ignored the reprehensible conduct of Ms. Thomas regarding the Jan. 6th capitol events, acting as if they never occurred. Roberts is not leading so it is no longer his court, but theirs!

In one form or another, every Supreme Court nominee is asked during Senate hearings about his or her views of the Roe abortion rights ruling that has stood for a half century.

Considering the historical importance of the Court as the last resort in our system of government, it is unsettling to admit that what we are witnessing is a “Trump Court” by default. Considering the place SCOTUS not only holds in our history, but appreciating the fact that it is the only thing standing between us and anarchy, this is a sobering conclusion. Particularly when one considers that those on the right feel this was the major achievement of the Trump administration.

SCOTUS may have been broken long before the leak. Now, the news is out there for all to know – casting a harsh light on Roberts’ “leadership” and the quickly fading rightful place of the Court in our lives and system of government.