In an overly simplistic analogy, Scholastic.com discussed the U.S. Supreme Court by saying it is “… like a referee on a football field. The Congress, the President, the state police, and other government officials are the players. Some can pass laws, and others can enforce laws. But all exercise power within certain boundaries. These boundaries are set by the Constitution. As the ‘referee’ in the U.S. system of government, it is the Supreme Court’s job to say when government officials step out of bounds.” Although it is unfortunate that “the people” were left out of the game, it does provide a starting point for a discussion.
The People, The Rule of Law and The Constitutional Government
The Supreme Court was created in 1787 by the Constitutional Convention and officially established when the First United States Congress passed the Judiciary Act of 1789. Over the main entrance of the building which today houses the Supreme Court are inscribed these words: “Equal Justice Under Law.” The Supreme Court’s website says very existence of the court is due to the “deep commitment of the American people to the Rule of Law and to constitutional government.”
The Rule of Law in America has always been made by partisan lawmakers, interpreted by partisan judges, and either accepted or rejected by the American people based on their particular belief systems. Despite all the noble and idealistic rhetoric to the contrary, there has never truly been equal justice under the law in America. Justice has historically been defined by the power in place at the time and was more often than not a mere byproduct of partisan political beliefs.
That has been especially true in the case of the Supreme Court.
In his book The Supreme Court in the Early Republic: The Chief Justiceships of John Jay and Oliver Ellsworth (University of S.C. Press, 1995), William R. Cato pointed out that Chief Justices Jay and Ellsworth “tarnished” the court from its inception by creating the impression that they were “partisans of the Federalist Party.”
SCOTUS Has Often Sidestepped Constitution, Bill of Rights
And as for Chief Justice John Marshall, heralded in history as the great constitutional innovator, he repeatedly ducked the issue of slavery deferring to the partisan laws of those states in which lawmakers had given the depraved institution of slavery both statutory and constitutional blessing under their legal schemes.
The very framers of this nation’s constitution—each and every one of them—were partisan actors, Federalists and Republicans. The liberty and constitutional rights they extolled in the most eloquent of terms belonged only to white male property owners.
As James W. Ely Jr. wrote in The Guardian of Every Other Right: A Constitutional History of Property Rights (2d ed. New York: Oxford University Press, 1997), Chief Justice Marshall made it abundantly clear that “liberty” rested in “the unalienable right [of white male landowners] to possess, enjoy, and augment private property.” The term “augment private property” included the theft of land that did not belong to the privileged landowners.
Native Americans and enslaved Africans certainly did not share in the value of these partisan political views emanating from the Supreme Court.
In a precursor to its infamous Dred Scott decision, the Supreme Court in 1831 in Cherokee Nation v. Georgia upheld the Indian Removal Act of 1830—partisan congressional legislation that not only allowed five slave-holding states to seize the ancestral land of five Native American tribes and distribute it to white landowners but it also authorized the federal government to forcefully remove these tribes from their land east of the Mississippi to barren Oklahoma territorial land west of the Mississippi.
Supreme Court’s Historic, Institutional Racism
Cherokee Nation was a partisan decision favored by President Andrew Jackson and his new Democratic Party over the vehement opposition of the Whig Party. The decision held that whatever lands the Five Civilized Tribes occupied, America possessed “title” to that land “independent of their will;” that the Native Americans of these tribes lived in “a state of pupilage” and that their relationship to the United States was like a “ward to his guardian.”
Put another way, Chief Justice Marshall believed, as did President Jackson and his political party, that Native Americans were domesticated servants to the United States.
Dred Scott Gives Constitutional Credence to Slavery
Twenty-six years after Chief Justice Marshall’s Cherokee Nation decision and after Roger B. Taney succeeded him as Chief Justice following Marshall’s sudden epileptic seizure death, the Supreme Court handed down the most partisan decision in its history: the infamous Dred Scott decision in which a 7-2 court said that a slave was a piece of property who had no standing to bring as lawsuit in federal court. The Dred Scott decision clearly established that the Supreme Court viewed slavery through partisan lens by giving it constitutional credence.
Dred Scott essentially held that enslaved Africans were property, not human beings.
How partisan was that era?
A Radical Republican lawmaker named Charles Sumner was beaten nearly to death on the floor of the Senate in 1856 (one year before Dred Scott) by South Carolina Representative Charles Brooks after Sumner made some anti-slavery comments.
Cherokee Nation and Dred Scott were the inevitable afterbirth of the partisan politics roiling the nation from 1789 throughout the 1800s.
Rival Political Parties Claim Right to Justices
As John T. Morgan explained in his legal treatise titled (The North American Review, Vol. 132, Feb. 1981):
“Within a few years after the organization of the Supreme Court, the rival political parties of the country began to claim it as a right, and to urge it as a party duty, to put judges on the bench who were decided, able, and zealous in their support of party measures and party declarations of political principles. It would be very difficult, in recent time, to cite a single exception to this rule. It has now become as positively established as that the President will select his cabinet from the party that elected him, and there is little hope that this rule will ever be changed.”
The U.S. Supreme Court remains in that same deplorable position today with the ashes of the Constitution lying tattered under the hallowed words “Equal Justice Under Law.”
Trump’s Appointees Must Swear Loyalty
With his next nomination to the Supreme Court in the wake of Justice Anthony Kennedy’s retirement, President Donald J. Trump will try to fulfill the legacy of Cherokee Nation and Dred Scott. This president views his executive authority to appoint justices to the Supreme Court much like he does to his Cabinet—personal loyalty to him alone as the litmus for appointment. At the very least, whoever Trump nominates to replace Justice Kennedy will be a hard right conservative with deep roots in the political, social and religious ideology of today’s Republican Party, more commonly known now as the “Trump Party.”
End of Modern, Progressive State
President Trump has made it unmistakably clear that he wants to overrule Roe v. Wade, expand the death penalty for a litany of non-murder offenses, increase the use of mass incarceration (to help his private prison contributors), enhance the militarization of the nation’s police forces, severely restrict or eliminate First Amendment protections, implement as xenophobic immigration policies that curry favor of his white nationalists supporters, curtail government assistance programs for the poor and disadvantaged (not caring that children will go hungry), destroy the nation’s public school system, eliminate unions, increase the corrupt wealth of the corporate power structure, and, perhaps most significantly, undermine the rule of law with an authoritarian abuse of the law that will allow him to use his pardoning powers to conceal criminal activity tied to him at the hip.
Donald J. Trump’s pick for the Supreme Court will not only perpetuate the heightened political partisanship afflicting virtually every aspect of political and social life in this nation today but will insure that it will regress the nation for generations to come. Congress, backed by a highly partisan Supreme Court, could become Trump’s “Politburo” – and he and Russian President Vladimir Putin will own the world stage, as they have intended all along.
May God save us all.
Photo By Gage Skidmore from Peoria, AZ, United States of America – Donald Trump, CC BY-SA 2.0, httpscommons.wikimedia.orgwindex.phpcurid=53142781