Lincoln's warning
It's like he was talking specifically about the Roberts Court.
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A right-wing Supreme Court majority could well place Donald Trump effectively beyond the reach of the nation’s criminal justice system for his attempt to void the outcome of a national election. This is not the first time a politicized court has tried to take control of the levers of the nation’s government, with sometimes catastrophic results.
While some describe this moment as a test of whether the Court will exercise restraint, it may also prove to be a test of how the nation responds to a partisan and increasingly unrestrained Supreme Court majority that has shown itself willing go every bit as far as the nation will allow it — up to and including assuming the authority to decide who sits in the White House.
Understanding how the nation journeyed to this perilous point requires a review of the long history of the Supreme Court’s arrogation of power to itself, a history that begins soon after the adoption of the Constitution. It also requires reviewing the Republican Party’s systematic effort, over the past 44 years, to employ the Court as a mechanism for imposing extreme right-wing policies that it could not implement through the democratic process.
“The people will have ceased to be their own rulers”
As he was being sworn into office at the outset of the Civil War in 1861, Abraham Lincoln warned of the danger that an overreaching Supreme Court posed to the nation.
Lincoln, a longtime trial lawyer, had the utmost respect for the role of courts in adjudicating “ordinary litigation between parties.” But, he cautioned, if the “policy of the Government upon vital questions affecting the whole people … is to be irrevocably fixed by decisions of the Supreme Court … the people will have ceased to be their own rulers.”
Lincoln was hardly speaking in the abstract. In 1857, a politicized Supreme Court majority had issued the notorious Dred Scott v. Sandford decision, which purported to resolve the “issue” of slavery entirely in favor of the enslavers, including by recognizing that they had a constitutionally protected right to own their human “property” and declaring that Black Americans were not citizens of the nation.
The fact that a Supreme Court majority felt itself empowered to dictate and impose upon the nation such a heinous public policy would have almost certainly have surprised the framers of the Constitution, a document that did not state or even suggest the Court would have the last word on such fundamental matters. That proposition was the result of a power grab by the longest serving Chief Justice, John Marshall.
After arranging his own installation on the Court in the waning days of Federalist Party President John Adams’s term, Marshall declared in the Court’s 1803 decision in Marbury v. Madison that the Court had the last word in any dispute regarding the interpretation of the nation’s Constitution and laws.
During his 34-year tenure as chief justice, Marshall employed this self-declared authority to remake many of the rules governing the nation’s economy in favor of Federalist-oriented policies, including by construing the Constitution’s Commerce Clause to grant the federal government exclusive authority to regulate interstate commerce.
While Marshall’s policy prescriptions largely proved to be wise, his assumption of judicial authority to interpret the Constitution invited judicial overreach. That came to fruition 54 years later when Marshall’s immediate successor as chief justice, Roger Taney, wrote the majority decision in the Dred Scott case.
As Lincoln demonstrated during his debates with Stephen Douglas soon after Dred Scott was handed down, apart from being morally obtuse, Chief Justice Taney’s effort to write Black persons out of the Constitution was shoddily reasoned and based on a false account of history and precedent. Northern resistance to the Supreme Court’s ruling played a large role in both Lincoln’s own election to the presidency several years later, as well as the Confederacy’s formation and declaration of war.
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One would have hoped that members of the Supreme Court, as well as those seeking to use the tribunal to do an end-run around the democratic system, would have learned a lesson from the cataclysm unleashed by the Civil War. But that was not to be.
Following the War, the Reconstruction Amendments (the 13th, 14th, and 15th) were passed by Congress and ratified by the states. Those amendments were expressly intended to overrule Dred Scott, including by granting all of the “privileges and immunities” of citizenship to Black male Americans. But it was not long after the Reconstruction Amendments were ratified that the Supreme Court, still dominated by reactionaries from the South and the North, began gutting large chunks of the then-recent amendments, including by ruling that the 14th Amendment provided virtually no protection against discrimination by non-state actors.
The Court’s initial effort to eviscerate the Reconstruction Amendments culminated in its 1899 decision in Plessy v. Ferguson, in which a seven justice majority essentially read the Equal Protection Clause out of the 14th Amendment by permitting states to engage in overt racial discrimination. The majority based their ruling on the makeweight rationale that the facilities and accommodations local governments provided to Black citizens could be “equal” to the facilities afforded to whites, from which they would be barred.
It was not until the 1954 decision in Brown v. Board of Education that the Supreme Court overruled Plessy and the lower courts thereafter began a slow, ponderous, and ultimately far from fully successful effort to undo the legacy of institutional segregation the Supreme Court itself had played a critical role in instantiating.
The Reagan revolution
While Brown and subsequent decisions against racial discrimination and upholding fundamental rights were decried by those on the right as the work of “judicial activists,” many of those cases (including Brown itself) are more properly understood as efforts to remediate the Court’s own prior efforts to gut the protections that the Reconstruction Amendments had been intended to grant.
Furthermore, during the Reagan administration, right-wing critics of “judicial activism” began their own form of activism, as part of what ultimately became a systematic effort to turn the federal courts into instruments to impose right-wing policies upon the nation.
The Court’s right-wing counterrevolution began with Reagan’s nomination of justices Scalia, O’Connor, and Kennedy, and his elevation of William Rehnquist to chief justice. Rehnquist, who was a Supreme Court clerk when Brown first came before the Court, wrote a memorandum strongly opposing a ruling against segregation.
During Rehnquist’s tenure as chief justice, what ultimately became a solid five-member right-wing majority undertook to roll back the modest civil rights gains of the Brown era, including by absurdly construing the Equal Protection Clause (which was placed in the Constitution as a tool to address the discriminatory legacy of slavery) to “protect” whites from affirmative action.
The brazenness of that majority became clear in 2000 when, in its 5-4 ruling in Bush v. Gore, the Court ordered the state of Florida (whose electoral votes were decisive to the outcome of that year’s presidential election) to cease a recount of votes in its exceedingly close state election, and thereby installed George W. Bush in the White House. The decision was so badly reasoned and transparently partisan that the Court decreed that it should not be relied upon as precedent in future disputes.
But while the Supreme Court’s right-wing majority may have been ashamed of its decision, the fact that it actually intervened in the democratic process in such an odious and transparently partisan way — and got away with it — clearly had a huge impact, not only upon the justices then on the Court, but also on the Republican appointees who have joined since. That became clear in 2013.
The Roberts Court pushes the limits
Beginning with his tenure as a young DOJ lawyer in the Reagan administration, John Roberts fought a largely losing battle to hobble the crowning jewel of the civil rights era, the Voting Rights Act. Despite right-wing opposition, the VRA had long had bipartisan support, and indeed was renewed during the George W. Bush administration.
But once Bush installed him as chief justice, Roberts seized the opportunity to do what he and his ideological allies had failed to achieve by democratic means: Gut the VRA and pave the way for the greatest civil rights counterrevolution in the nation’s history.
In the 2013 decision in Shelby County v. Holder, Roberts took the extraordinary step of judicially voiding the VRA’s preclearance provisions, which had played a linchpin role in mitigating the Jim Crow legacy that the Court itself had helped to create.
In the grand tradition of reactionary Supreme Court decisions reaching back to Dred Scott, Roberts employed misleading accounts of statistical and other facts in service of a false depiction of a nation that had largely overcome its legacy of racist voting laws and practices. In fact, as Justice Ruth Bader Ginsburg accurately predicted in her dissent, Shelby County ushered in a new era of racially biased voting laws, regulations, and legislative district maps, particularly in the states of the former Confederacy.
The Roberts Court’s assault on the VRA was only part of its project to make voting less fair and more and more dramatically stacked in favor of the wealthy and powerful.
Under Roberts, the Court eviscerated the nation’s campaign finance and disclosure laws, making it easier for the wealthy to dump unlimited amounts of money into elections while concealing many of their activities through dark money entities. Additionally, in the Court’s 2019’s Rucho v. Common Cause decision, Roberts declared that the Constitution does not impose any limits on partisan legislative gerrymandering. That’s allowed (primarily GOP dominated) state legislatures to make it all but impossible to vote existing majorities out of the control of numerous statehouses.
In the wake of a court packing scheme engineered by Mitch McConnell and implemented — in an obvious parallel to the Adams presidency — right up until the waning months of Trump’s term with the installation of Justice Amy Coney Barrett, the Supreme Court now has a cohort of six extremely right-wing justices. Similarly extremist jurists have have been installed throughout the federal judiciary (including a trial judge in Florida named Aileen Cannon).
Of the current six member Trump Court majority, one justice (Thomas) voted to install Bush, while three others (Roberts, Kavanaugh, and Barrett) represented the Bush campaign in 2000. So it’s no surprise that Trump had hoped his Court would stand ready to do what it took to reinstall him in the White House after he lost to Joe Biden in 2020.
But when Trump appealed to the Court to aid in his effort to overturn the outcome of the election, he could not convince a sufficient number of right-wing justices to do his bidding. Some saw that as a triumph of an independent judiciary. But a more likely explanation is that right-wing justices recognized that literally throwing out the results of an election might actually be a bridge too far and could risk destroying the Court’s legitimacy and power.
As the current Court term is demonstrating, however, the Trump Court majority has hardly lost interest in going as far as it possibly can to tamper with democracy and to do so to help a Republican candidate — as I will discuss in the next segment of this series.
This is the first of three pieces discussing the usurpation of governmental power by the United States Supreme Court, as well as the use of the Court as a tool to achieve ideological ends outside of the democratic process.
In part two, I will discuss the brazen effort by the Court’s current extremist majority to do the political bidding of Donald Trump. In the third part, I will address a question that some of the nation’s most talented leaders (including Abraham Lincoln and Franklin Delano Roosevelt) have struggled with: How should citizens respond to a dangerously politicized Supreme Court?
That’s it for this week
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Thanks for reading, and have a great weekend.
Great article. I served as a US Magistrate Judge and I am horrified by the current Court’s lack of ethics and respect for precedent.
Good for all of you who work to remind all of us about past and present dangerous usurpations of power by U.S. Supreme Court justices. Your work is crucial to helping us protect our rights and freedoms from the depredations of current SCOTUS justices. They are far beyond being merely "activist." They are deeply and dangerously anti-constitutionalist. They actively deceive Americans to rob and defraud us of our rights and the protections of the Constitution. The majority did it in Dobbs. They all did it in Trump v. Anderson. Some are doing it again in Trump v. United States.
SCOTUS justices who were more honest and more faithful public servants (in their famous and celebrated decision, New York Times Co. v. Sullivan, 376 U.S. 254 (1964)) reminded us repeatedly of the words of James Madison. Madison ranks with Lincoln as among the best public servants we've ever had. He was the primary author of the Bill of Rights, and he was hailed as the Father of the Constitution for starting and shepherding the process of creating the Constitution. That decision (New York Times) is under dangerous and deceitful attack by some of these SCOTUS justices who want to silence critics (esp. Justices Thomas and Gorsuch). See https://blackcollarcrime.substack.com/p/who-cares-about-the-history-of-the?r=30ufvh.
SCOTUS in 1964 reminded us that Madison in 1794 (as a congressman reminding Congress of the true meaning of our Constitution) emphasized that "the censorial power is in the people over the Government, and not in the Government over the people." More importantly, SCOTUS reminded us that Madison in 1800 emphasized the most basic and crucial truth of our Constitution: "The people, not the government, possess the absolute sovereignty." The First Amendment merely secures and reminds us of how we can directly exercise our sovereignty.
Our entire Constitution (not merely the First Amendment) secures to us all "the right of freely examining public characters and measures, and of free communication among the people thereon." It does so precisely because the right to think and speak for ourselves about our own government "has ever been justly deemed the only effectual guardian of every" American "right." If we don't exercise our right to self-government and act to rein in our purported public servants, then the Bill of Rights really will be as Madison warned, a mere "parchment barrier" against very real power-hungry despots.
All federal judges have sworn to "faithfully" "support and defend [our] Constitution" against "all enemies, foreign and domestic." See 5 U.S.C. 3331. That is the whole reason they hold their positions and collect their pay. They must defend our Constitution, not Trump. SCOTUS justices in 1964 (who did as they swore to do) reminded us in New York Times us that the primary purpose of the First Amendment was to secure "the privilege for the citizen-critic of government. It is as much his duty to criticize as it is the official’s duty to administer." They reminded us that all public officials (including SCOTUS justices and POTUS, too) are "public servants" who cannot logically or lawfully enjoy "an unjustified preference over the public they serve." That applies to our freedom to think and speak for ourselves, and it applies to holding Trump to the criminal law that he did (and SCOTUS does) hold us.