A sensible Supreme Court is facing threats from within

The traditional historical view of public opinion regarding the judiciary and its decisions, especially the Supreme Court (SCOTUS), has been one of at least reluctantly accepting its legitimacy.

This is no longer true.

Which leads to the hair-raising conclusion that our judicial system is either broken or on the verge of becoming so. This recently motivated Chief Justice John Roberts to go public about the disturbing trend demonstrating threats against judges.

The leak of a draft majority opinion overruling Roe v. Wade raises questions about SCOTUS motives, methods and whether defections are possible. Riven with mounting internal distrust among its law clerks, staff and, especially, the justices themselves, it is as if this trusted and once noble institution of our democratic system is self-immolating.

SCOTUS Marshal Gail Curley has demanded phone records and affidavits from its law clerks as she continues her investigation into the leaked opinion that would overturn abortion rights – a development that puts these elite young lawyers in an uncomfortable position at the busiest time of the SCOTUS term.

So much so that these law clerks have “lawyered-up” to protect themselves and their respective futures as members of the legal profession. One can only imagine the disastrous outcome for any one or more of these privileged future members of the bar should they become enmeshed in a web of surreptitious conduct.

And, this is not the end of the storm enveloping SCOTUS – one that gathers more force with each passing day – and is quickly diminishing the historical respectability the court has enjoyed for the last 233 years.

Unbelievable as it may sound, according to the St. Louis Post-Dispatch, we are on the verge of SCOTUS decisions being “openly defied.” The logical extension of this warning is utter chaos hovering over our system of “justice.”

There have been suggestions that Roberts should consider making a criminal referral or request the appointment of a special counsel who knows and respects the traditions of SCOTUS, but who, unlike the Department of Justice, is not a regular party before it. Obtaining the support needed from the FBI or any other law enforcement agency to accomplish this task would be critical to such an effort.

The challenge now is one of stemming the tide and reversing the growing public perception that SCOTUS no longer commands respectful observance of its decisions because it has become little more than a group of “political hacks in black robes.”

During a recent pro-abortion rally near the nation’s highest court, Senate Majority Leader Chuck Schumer (D-NY) is alleged to have made negative comments directed at SCOTUS Justices Neil Gorsuch and Brett Kavanaugh for their anti-abortion stands. Subsequently, Schumer has expressed regret through clarification of his intent.

Threats of violence against judges at all levels seem to be increasing and in a frightening manner all the way to SCOTUS. Sen. Chris Coons (D-Del.) downplayed Schumer’s statement that Kavanaugh and Gorsuch would “pay the price” if they ruled the wrong way on abortion. This was after an armed suspect was arrested for attempted murder for allegedly trying to kill Kavanaugh before SCOTUS rules in an abortion case.

The fact Coons felt it necessary to make a distinctive comparison of Schumer’s words with former President Donald Trump’s language before the Capitol riot on Jan. 6, 2001, claiming that what Schumer said was not as bad, did not erase the uneasiness left by Schumer.

Coons, by way of defense of Schumer, said: “Here’s a key distinction: What Sen. Schumer was saying was that he was upset, he was alarmed, he was concerned at the prospect that justices would reverse decades of a well-established fundamental constitutional right in our country. What he did not say was, ‘Let’s go attack them’…The point of the January 6 hearing is to prove that such is in fact what President Trump did.”

Nevertheless, the shocking expression of feelings by Schumer has underlined the serious road this debate has traveled with no end in sight. On the other hand, it appears left-wing media such as the NY Times has turned a blind eye to the lack of coverage on the shocking assassination attempt on the life of SCOTUS Justice Brett Kavanaugh.

Whatever one may think of Kavanaugh, this is an entirely inappropriate slanting of news coverage through blatant omission. The public, irrespective of political persuasion, must be entitled to a full and fair coverage of critical news events such as this incident that underscores the harmful political polarization in our society today.

There is a lingering feeling the SCOTUS seats now occupied by Neil Gorsuch and Amy Coney Barrett were “stolen.” The former relating to Attorney General Merrick Garland’s confirmation hearing mistreatment by the Senate, and the latter because Barrett was “rammed through” on the “doorstep” of the eve of the November 20 presidential election.

In addition, there are no rules prohibiting conflicts of interest on the part of the SCOTUS justices requiring their recusal in any case before them. Assertions under oath by Gorsuch and Barrett during their confirmation hearings – that Roe is the law of the land – which they later flagrantly ignored once confirmed, were not helpful.

Incredible as it may seem, there are no professional prerequisites to be a member of SCOTUS, although historically all have been lawyers. For those who are interested in speculating on a grand scale since, as outlandish as it may seem: (1) already there has been conjecture that Trump could be selected as a future Speaker of the House because there is no requirement that such a post be filled by a voter-elected member; and (2) a GOP president supported by a GOP controlled Senate could ensconce Trump as a SCOTUS chief justice should that seat become open during GOP control of our government.

Various states have already broken ranks in open defiance of Congress and effectively ignored federal legislative mandates. The “writing is on the wall” that it will be but a brief time before SCOTUS rulings follow the same track, especially as it appears the GOP game plan is to accomplish that outcome.

Ironically, given his criticized responsibility in much of this, Justice Clarence Thomas has declared: “We are in danger of destroying the institutions... required for a free society.” A sentiment that’s been confirmed by a new low support rate for SCOTUS of 40%. One recent “letter to the editor” submitted by a reader declared there is more than just “one bad apple” sitting on SCOTUS.

Primarily responsible for the negative fallout from the 2020 presidential election, former president Trump remains the nemesis.

Closely examining the mess Trump has left us with, the recent words of columnist Jeff Greenfield bear remembering: “In the case of Trump, the conclusion that he engaged in corrupt and quite possibly criminal behavior has been breathtakingly obvious at least since November 2020, if not before. And that certainty – along with the blatant refusal of millions to accept that reality – defines the limits of what the January 6 committee can accomplish.”

According to the Washington Post, Trump has been asking advisors how he can attack ex-Cabinet members who might run for president in 2024. While not yet having launched a candidacy, he continues to zero in on potential GOP candidates who may run against him in a GOP primary, such as former VP Mike Pence and ex-Secretary of State Mike Pompeo. Whether this is in earnest or simply a smokescreen to divert attention from the January 6 committee hearings that could result in Trump’s criminal liability, is anyone’s guess.

On the periphery and also according to the Washington Post, recents analysis of results in federal and state elections have disclosed an embrace of Trump’s baseless theories about the 2020 vote, and believing that assertion as a pretext and “price of admission” in Republican primaries. Winning in November will place many of these candidates in positions of power to interfere in the outcome of future contests.

Further concerns not being discussed are Trump-sympathizing members of the judiciary who could remain in positions that enable them to influence future litigation conforming to those beliefs.

SCOTUS watchers have indicated that, unlike its traditional historical makeup and functioning, the current membership has become a dysfunctional and unmanageable conflagration of nine-unlike-minded individuals who follow unchecked their own separate agendas. In this connection, we constantly need to remember, not unlike the traditional warning, “letting the horse out of the barn” usually results in an inability to catch and return it.

In this connection, it might be a useful idea to reflect on a1934 speech by then SCOTUS Justice Oliver Wendell Holmes: “We live by symbols and what shall be symbolized by any image of the sight depends upon the mind of him who uses it.”

Our current “mess” is rife with symbols perpetuated by the minds of those who negatively seek to shuffle the “house of cards currently posing as our democracy.” While the history of SCOTUS has not been without controversy, it has remained a reliable cornerstone of our political system. Until now.

Although the Constitution, Article III, Section I, states that “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish,” it permits Congress to decide how to organize it.

Perhaps, hopefully, now is the time for a truly bipartisan Congress to revisit this provision in order to head off a brewing storm of constitutional magnitude.