Greatest Hits: Supreme Court Edition
Revisiting Supreme Court posts from The Journeyman archives
With the Supreme Court back in the news of late, I thought a recap of some of my earlier posts on the court might be a helpful refresher. Older posts on The Journeyman are paywalled once they hit the archive, and comments are usually limited to paid subscribers. Since the high court figures prominently in American life in the months ahead, I’ve removed both restrictions for this piece. For the remainder of this month, free subscribers can access all the posts included here.
On stolen court seats
Conventional wisdom suggests that Senator Mitch McConnell’s decision to block then-president Barack Obama’s appointment of Merrick Garland to the court was the game-changer that led to today’s far-right court.
Indeed, Mcconnell’s Machiavellian strategy was crucial in facilitating the three SCOTUS appointments during the Trump presidency. That said, the Republican trickery didn’t start with Garland. It’s important to remember how Mcconnell et al set the stage for their takeover of the highest court in the land.
After Justice Ruth Bader Ginsberg’s passing in 2020, I wrote about how, during the Obama era, Republicans blocked a lower court appointment, creating a placeholder seat for Trump to appoint Amy Coney Barrett, a favorite of the Federalist Society. From September of that year:
There is an argument to be made that Barrett’s current position on the Seventh Circuit Court is itself a stolen judicial seat. Trump nominated Barrett to the Seventh Circuit in 2017, but why was that seat vacant in the first place?
…Myra Selby was a former Indiana Supreme Court Justice and the first Black woman to sit on the State’s highest court. She would have been the first African American from Indiana and the first woman from the State to serve on the court. But then-senator Dan Coates, a Republican, blocked Selby from a hearing by not returning what is known as a ‘blue slip.’
As a result of Coates withholding his blue slip, Mitch McConnell could leave the seat open — allowing Trump to fill the vacancy by nominating Amy Coney Barrett. The United States Court of Appeals for the Seventh Circuit is now the country’s only all-white federal appellate court.
In a letter to the Senate Judiciary Committee opposing ACB’s nomination to the Supreme Court, the NAACP pointed to how Senate Republicans used the century-old blue slip tradition to deny Obama a judicial appointment to the Seventh Circuit:
“Amy Barrett is already sitting in an illegitimate judicial seat -a seat that was stolen by Republican Senators and Donald Trump. In May 2017, Donald Trump nominated Barrett to an Indiana seat on the Seventh Circuit, which covers Indiana, Illinois. and Wisconsin. This is the same seat to which President Obama nominated Myra Selby, a Black woman, in 2016. But Republican Senators blocked Selby's confirmation and saved the seat for Donald Trump. After Trump was elected, the Seventh Circuit lost its only Black judge to retirement. The Shelby appointment would have retained diversity on this court. Instead, Trump appointed four white individuals, including Amy Barrett. The Seventh Circuit is now the only all-white federal appellate court in the country.” [In 2021, Candace Jackson-Akiwumi, an African-American woman, was confirmed by President Biden to fill the seat vacated by Joel Martin Flaum.]
When RBG’s seat opened, Mcconnell flipped the script, discarding the rationale he previously used to block Garland. The result was ACB’s ascent to the Supreme Court. The path taken to achieve this feat is largely underreported.
On flexible originalism
Originalism, or the belief that the Constitution must be interpreted based on the original understanding “at the time it was adopted,” has long been the prevailing legal theory of the thinking of the conservative wing of the Supreme Court.
After Utah Senator Mike Lee famously declared that the United States is “not a democracy,” I wrote about the right’s “selective interpretation” of the Constitution, and their intent to dismantle fifty years of progressive policy. In retrospect, the confirmation hearing of then-nominee Barrett was a harbinger of the circumstances in which we currently find ourselves. From October 2020:
Conventional wisdom has it that conservatives like Lee and soon-to-be-confirmed Supreme Court nominee Amy Coney Barrett subscribe to what are commonly known as textualism and originalist philosophies.
Their philosophy allegedly contends that the Constitution’s Framers intended the document to be understood based on the strict text and its original understanding when adopted. According to ACB, the Constitution’s meaning “doesn’t change over time. And it’s not up to me to update it or infuse my own policy views into it.”
…with calls within the Federalist Society for “active judging” and the suggestion from conservative scholars that originalism itself “has now outlived its utility, and has become an obstacle to the development of a robust, substantively conservative approach to constitutional law and interpretation,” pardon my skepticism.
…while it is a relief to know ACB believes Brown v. Board of Education was properly decided, consider the areas where she was less than forthcoming. Barrett would not share her views on the constitutionality of Roe v. Wade, the Affordable Care Act, or even Medicare during her three days of testimony.
On the shadow docket
Last month, in an unsigned, single-paragraph order, the Supreme Court allowed full access to Mifepristone, one of two drugs approved in the U.S. for medication abortions, to continue — at least for now. In a fiery dissent, Justice Samuel Alito took issue with the 7:00 pm ruling and the court’s use of what is known as “the shadow docket” to communicate its decision.
Alito’s position regarding the shadow docket is stunningly hypocritical, given the right-leaning court's partisan use of this method to communicate its orders. Pre-2017, this emergency procedure was limited primarily to death penalty cases.
During the Trump administration, the court altered its use to include a variety of partisan policy prerogatives.
On forty-one occasions, the Trump DOJ requested emergency relief from the Supreme Court. On 28 occasions, remedies the administration sought were granted, at least in part. The court has not, however, extended the same degree of deference to the Biden administration.
For example, the court refused to freeze a district court injunction requiring the administration to restart the shuttered “Remain in Mexico” program — the administration's first such request.
In August 2021, I wrote about the SCOTUS decision — just two days later — to reverse the Centers for Disease Control and Prevention (CDC) moratorium on evictions:
The court’s decision to overturn the federal eviction moratorium, with as many as 6.5 million households on the verge of eviction, occurred during what is known as the court’s “shadow docket.”
…Unlike most shadow docket cases, where the court issues brief orders, in this instance, it issued an eight-page majority opinion, which is unusual, as Adam Liptak and Glen Thrush of the New York Times point out, especially in a ruling on an emergency relief application.
A few days after that decision, the court used the shadow docket again, this time in a ruling that foreshadowed the court’s decision to overturn Roe v. Wade a few months later. From September 2021:
This week in a one-paragraph, unsigned statement via the “shadow docket,” the high court’s process for addressing emergency petitions, the Supreme Court denied relief to plaintiffs challenging Texas’s new abortion law. The new law bans abortions after six weeks.
Adding insult to injury, Texas Senate Bill 8 effectively creates a class of paid vigilantes; private citizens who are allowed to hunt down, file suit against, and collect a $10,000 bounty from women suspected of exercising this constitutional right…
…The high court’s decisions on “Remain in Mexico”, the eviction moratorium, and now Texas’s SB8 leave little doubt regarding the conservative majority’s willingness to abuse the system for political ends.
If the Supreme Court's past is its prologue, it appears we’re in for a rough ride this summer. As a result of its recent hyper-partisan behavior, not to mention its questionable ethics, it's no wonder half the country has an unfavorable view of the court.
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It's pretty amazing how +rump's clownish behavior all through his administration hid much of these goings on. And many, myself included, didn't know the half.
"On forty-one occasions, the Trump DOJ requested emergency relief from the Supreme Court. On 28 occasions, remedies the administration sought were granted, at least in part. The court has not, however, extended the same degree of deference to the Biden administration."