Manipulating U.S. top court nothing new

Hey there, time traveller!
This article was published 07/08/2018 (2641 days ago), so information in it may no longer be current.

In John Grisham’s 1992 thriller The Pelican Brief, two U.S. Supreme Court Justices are murdered. One of the judges is regarded as a liberal; the other, a conservative. Darby Shaw, a law student (played by Julia Roberts in the 1993 movie based on the novel), solves the murder mystery — which puts her life in danger — by figuring out that both justices were supportive of environmental causes.

Their deaths were arranged by Victor Mattiece, an oil magnate who wanted to obtain oil drilling rights on land in Louisiana inhabited by an endangered species of pelican. Mattiece feared that when the dispute over the land eventually made its way to the Supreme Court, these two judges would cast the significant votes against him. As a big financial backer of the U.S. president, Mattiece believed he could manipulate the president into appointing new pro-business justices who would side with his position.

As implausible as this plot may be, American presidents have been manipulating their selections for Supreme Court justices for generations — yet perhaps no more blatantly than at the present.

Most Canadians would be hard-pressed to name the chief justice of the Canadian Supreme Court (Richard Wagner) and the other justices. Yet given the excessive media attention, the odds are much better that they are more familiar with U.S. Chief Justice John Roberts and the eight other American judges, including Neil Gorsuch, President Donald Trump’s first appointee, who assumed office in April 2017.

In Canada, the prime minister — with some consultation of the broader legal community — chooses Supreme Court judges based on scholarship, experience and prior legal decisions, as well as a consideration of sex, diversity and region. In the U.S., the president also takes into account these qualities (in theory, at any rate), but the overriding factor is the prospective nominee’s political bent.

The key is whether a judge is a conservative or a liberal; or more accurately, an originalist who narrowly interprets the U.S. Constitution as it was written in the late 18th century, or a progressive who treats the constitution as a living document that must adapt to fit current attitudes and values. Justices Clarence Thomas and Gorsuch and most conservative judges tend to be originalists, while Ruth Bader Ginsburg and Sonia Sotomayor are progressives. Chief Justice Roberts can go either way.

Trump regards his power to appoint judges to the high court as one of the most significant ways he can reshape American society in his own (arguably distorted) image. And as a self-proclaimed foe of abortion, he promised on several occasions during the 2016 presidential campaign to appoint judges who would overturn the landmark 1973 Supreme Court decision, Roe v. Wade, which decriminalized and extended abortion rights in the U.S.

During his Senate confirmation hearing, Gorsuch refused to clarify his stand on Roe v. Wade, stating only that the decision established an important precedent he respected. He also insisted that had Trump asked him if he would overturn the decision, he would “have walked out the door.”

With the recent announced retirement of Justice Anthony Kennedy, Trump has been given another opportunity to politicize the court further with his selection of Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit (he also served in George W. Bush’s White House administration).

He, too, is regarded as a conservative and overly partisan. Yet no matter how aggressively Democratic senators will question Kavanaugh about his views on abortion, he no doubt will be as vague as Gorsuch was. And there isn’t much the Democrats can do about it with the current makeup of the Senate. The probability of him being confirmed is high.

At the same time, no one, certainly not Trump, can predict with absolute certainty how any judge, conservative or not, will rule in a specific case. To prophesize that Gorsuch and Kavanaugh, over the course of three decades — if they serve that long — will never waver from the political views they seemingly hold today is wishful and simplistic thinking.

The process of rendering a legal decision is complex and not merely based on a judge’s perceived political bias. In 1896 in Plessy v. Ferguson — one of the most controversial and worst Supreme Court decisions ever made — the court in a 7-1 vote upheld the constitutionality of “separate but equal” supporting racial segregation, which severely impacted on the lives of African-Americans in the south. The majority opinion was not written by a southern appointee from an old slave-owning family, but by Justice Henry Billings Brown from Michigan. He did not consider himself a racist, yet maintained that though all citizens were equal, separate facilities could exist.

Similarly, it took until 1954 to overturn Plessy v. Ferguson with Brown v. Board of Education of Topeka, mainly because so-called liberal Supreme Court judges appointed by Democrats Franklin Roosevelt and Harry Truman were reluctant to overturn an established precedent and pointed to the fact that as of 1952, Congress had yet to pass a law forbidding segregation.

On the other hand, Justice Harry Blackmun of Minnesota, appointed to the court by Republican Richard Nixon, wrote the majority opinion in Roe v. Wade and became a champion of liberal causes.

Anything is thus possible in a future court decision on abortion. Gorsuch and Kavanaugh might not vote to overturn Roe v. Wade as Trump anticipates they will. And Chief Justice Roberts may now take the place of Justice Kennedy as the deciding arbiter in any 4-4 decision.

Now & Then is a column in which historian Allan Levine puts the events of today in a historical context.