What we have been seeing lately is a full-court press to compromise the independence of the judiciary, particularly the Supreme Court. Recently, we have seen the racist attacks on Justice Thomas get undermined by former Justice Breyer, and a hit piece of Justice Gorsuch that apparently wasn’t reviewed by anyone who understands the law. This is all part of one front in this metaphorical ‘war:’ The push to impose a judicial code of ethics on the Supreme Court.
Another ‘salvo’ is coming on May 2, 2023, when the Senate Judiciary Committee plans to hold a kangaroo court totally serious inquiry into ethics on the Supreme Court. The chair of that committee, Dick Durbin, invited Chief Justice Roberts to testify. We have deep disagreements with the Chief Justice, but he seems to have handled this situation correctly, so far, by declining in a letter to the committee:
Chief Justice's letter declining to testify before Congress: https://t.co/vrJUR5Wnmi pic.twitter.com/NlDuAd3Rst
— Lawrence Hurley (@lawrencehurley) April 25, 2023
What is wise about his approach is that the letter is so utterly mundane. One could read it to a person who is having trouble sleeping and it would probably work better than a chemical sleep aid. There’s no pointed language, just a very boring recitation of how unprecedented it would be for him to testify and a very polite refusal. It comes off as passionless, and thus very credible as neutral decision. One can only speculate at how Roberts actually feels, but comes off as indifferent in the best way possible.
Of course, this is one front in that metaphorical war and one of the people leading the charge is Senator Elizabeth Warren. She tweeted out her own little threat to the Supreme Court earlier this week:
I’ll just be blunt: right-wing extremists have hijacked the Supreme Court of the United States. From shredding abortion rights to rigging the rules against workers and consumers, an out-of-touch majority is substituting their own views for the rule of law.
— Elizabeth Warren (@ewarren) April 24, 2023
For the sake of our freedoms and the sake of our democracy, we must expand the Supreme Court to rebalance it, and we need to institute a binding code of ethics for the justices.
— Elizabeth Warren (@ewarren) April 24, 2023
As usual for her, this represents confused thinking. For instance, she claims that for the sake of democracy we have to reign in the Supreme Court, but also complains about Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022). That would be the case that overturned Roe v. Wade, 410 U.S. 113 (1973) and a bunch of other cases that held that there was a right to abortion in the constitution. Just to be clear, in Roe, the Supreme Court made up a ‘constitutional’ right that did not exist in the Constitution and then said that every single state’s abortion laws were unconstitutional because it violated this made-up right. That was an anti-democratic decision. It nullified the laws of every state, which had been passed through a much more democratic process. We became less of a democracy and more of an oligarchy of Supreme Court justices under Roe. Therefore, when Dobbs was handed down, allowing states to make a wider range of laws on abortion, we became a more democratic republic. But somehow this increase of democracy is seen as a threat to democracy. It makes zero sense.
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As for her complaint about ‘rigging the rules against workers and consumers,’ she gives no clear indication what she is talking about or even that she knows what she is talking about.
Naturally she got some pushback:
Absolutely not, you can’t change things because they aren’t working in your favor! You need to retire!💯
— Andrea ❤️🇺🇸 (@nellarose1977) April 24, 2023
Why in the world should we Ever trust you about anything you say? pic.twitter.com/xmBWXlkDIH
— IfNotMeWho ☠️ (@IfNotMeWho_7553) April 24, 2023
And this is a fascinating comment from a South African legal scholar:
This is African tinpot rhetoric. A prominent politician accuses a small group of mildmannered robed intellectuals of being "extremists."
I have huge substantive ideological issues with the South African Constitutional Court and I have never described the judges in this fashion. https://t.co/4fmwUNkxD7
— Martin van Staden (@Martin_ASFL) April 26, 2023
Wow, shredding abortion rights? All the SC did was return control to the states where it belongs. Show me where in the Constitution that it says anything about abortion.
— Bjesse1 (@sceptic100) April 24, 2023
I'll be blunt: you are a pathetic anti-Constitution Marxist. 🖕
— Charles X Proxy™ (@Charlemagne0814) April 24, 2023
The court was run by leftist extremists for much of the 20th century. Leftists scream and gnash their teeth because their precious vehicle for unilaterally warping America has been taken from them https://t.co/tf0Ddtay1y
— Disgruntled Homo (@Takesfordays) April 26, 2023
"things i dont like are baaaaaaaad. things i do like should be mandatory" https://t.co/7EVJIsM77o
— BKAEH (@BELKAEH) April 25, 2023
Call @yairlapid and @gantzbe, they will explain that the Supreme Court doing whatever it wants is an essential part of democracy. https://t.co/2b9PEYT5t3
— Eugene Kontorovich (@EVKontorovich) April 25, 2023
She means.
Pack the court in favor of her reality model.
Then pass a law to keep the republicans from just doing the same thing.— Black Pill Libertarian (@DrHypno2) April 25, 2023
And this gentleman predicts that republicans will retaliate with their own court packing, endlessly expanding the court until…
YES! And when Republicans completely control both houses of Congress and the Presidency they can add enough conservatives to "rebalance" the Supreme Court.
This process can be carried on until we have a Supreme Court made up of EVERY US Citizen alive.
ONLY THEN will we have a…— Robert Bruce Willsie (@bobw222) April 24, 2023
By 2040 there will be 987 justices on the Supreme Court.
— Michael Isenberg (@TheMikeIsenberg) April 24, 2023
This is like a recipe for the end of our Republic.
— John Hawkins (@johnhawkinsrwn) April 24, 2023
Which is just what they want. Ever notice how they keep thinking if cause they call the USA a “democracy” it’ll eventually become one? Thankfully, no matter how many times they do say it; we’ll ALWAYS be a #ConstitutionalRepublic!
— Liberacrat™️ (@Liberacrat) April 24, 2023
"a binding code of ethics"
er, and who's going to enforce that? https://t.co/PphH2vOW9H
— St. Rev. Dr. Rev ☯️🏴😻 (@St_Rev) April 25, 2023
This Tweeter is getting at the problem with a Supreme Court code of ethics: who is going to write them, and who is going to enforce them? To say that this creates serious separation of powers concerns is an understatement.
What exactly do you think you know about ethics? Amazing, coming from you of all people. https://t.co/vZP4knX3Yc
— xGraceLaurenx (@Grace9922x) April 25, 2023
And naturally Warren’s saber-rattling also got praise, but not a lot:
.@ewarren is a champion for democracy and our fundamental freedoms — and she’s corruption’s worst nightmare. That’s why we’ve endorsed her, and we’re asking you to stand with her. https://t.co/ugbTOmRkm1
— EMILYs List (@emilyslist) April 26, 2023
I swear, Elizabeth the only senator out here doing that work. https://t.co/u79ccfv888
— chloe (@ayeyochlo) April 26, 2023
However, most people walked past the biggest concern for the court-packing proposal and what is truly dark about it.
This isn’t the first time Democrats have talked about packing the Supreme Court. President Franklin D. Roosevelt made such a proposal, and this excellent thread discusses what happened in some detail:
After winning Congress and the WH in 1932, FDR led Democrats on a blazing array of new legislation meant to stave off the effects of the Great Depression. This is what we refer to as the New Deal.
Republicans didn't have the votes to block it. The Court, however… 2/
— Blake Scott Ball (@bsb1945) October 11, 2020
The Supreme Court had been filled with a conservative majority by Republicans. In a number of major cases, like FDR's industrial recovery program (NIRA) and the agricultural recovery program (AAA), the Court ruled that the New Deal was unconstitutional. This infuriated FDR. 3/
— Blake Scott Ball (@bsb1945) October 11, 2020
By 1936, SCOTUS had ruled against the New Deal in 7 of 9 major cases, and there were no signs of the Court relenting. Plus, there were no vacancies in FDR's first term.
So when FDR won a historic electoral landslide in 1936, he took this as a mandate to fix his court problem 4/
— Blake Scott Ball (@bsb1945) October 11, 2020
With challenges to the Wagner Act (labor union rights) and Social Security pending in the court, FDR launched a clumsy "reform" plan to enlarge the Supreme Court. 5/
— Blake Scott Ball (@bsb1945) October 11, 2020
FDR proposed adding up to six new justices to the Supreme Court, one for each sitting justice who was over 70 years old. He's reasoning was that the aging justices were getting behind on their work and needed assistance.
This was "court packing." 6/
— Blake Scott Ball (@bsb1945) October 11, 2020
Americans, including many in FDR's own party saw this for what it was: a brazened political scheme to pack the court with enough friendly votes to neutralize the "check and balance" power of the Supreme Court. 7/
— Blake Scott Ball (@bsb1945) October 11, 2020
Despite vocal opposition from both parties, FDR still tried to push his "court packing" plan through Congress, as he had easily done with so much New Deal legislation.
The Senate overwhemingly voted it down on July 22, 1937. 8/
— Blake Scott Ball (@bsb1945) October 11, 2020
To FDR's relief, Willis Van Devanter (a conservative appointed by President Taft) resigned in the summer of 1937, giving Roosevelt the chance to make his first of many appointments.
He nominated Hugo Black of Alabama. 9/
— Blake Scott Ball (@bsb1945) October 11, 2020
Yet, the damage was done to FDR's credibility. His party was fractured, the economy crashed again, and Dems lost significant ground to the GOP in 1938 midterm.
Most of all, these political maneuvers permanently ended the expansion of the New Deal. 10/
— Blake Scott Ball (@bsb1945) October 11, 2020
This old newsreel also portrays the court-packing plan as a failure:
On July 22, 1937, the U.S. Senate voted down Roosevelt's 'court-packing' plan by a vote of 70-20 pic.twitter.com/8JD4To92HS
— RetroNewsNow (@RetroNewsNow) February 5, 2023
But it wasn’t a complete failure.
It was successful in bullying the Supreme Court into compliance. In legal circles (which certainly includes Senator Warren), it is generally agreed that in the same year the court packing proposal was defeated, Justice Owen Roberts suddenly started voting to uphold major provisions of the New Deal. That gave the liberal justices on the Supreme Court at the time just enough votes to uphold the New Deal in case-after-case. The common belief is that Owen Roberts did this in order to reduce anger at the Supreme Court so that no such proposals to pack the court would succeed. In legal circles, this is called ‘the switch in time, that saved nine.’
In short, it was the classic tactic used by weaker children to keep bullies from beating them up: Give the bullies whatever they want. It is understandably human, but not very good when our Constitution is supposed to grant certain rights that are not to be violated. It is fair to draw a direct line between that successful act of bullying to this:
The War Relocation Authority (WRA) was a United States government agency established to handle the internment of Japanese Americans during World War II. The agency was created by Executive Order 9102 on March 18, 1942, by President Franklin D. Roosevelt. pic.twitter.com/8Y7srWdHTg
— Hardhatbeast (@hardhatbeast) April 24, 2023
“If you have the feeling that something is wrong, don’t be afraid to speak up.” Fred Korematsu, born #OTD in 1919, was one of more than 110,000 people of Japanese descent forcibly "relocated" during WWII. He sued the US government for the violation of his rights—and lost.
— US Holocaust Museum (@HolocaustMuseum) January 30, 2023
Yes, six years later, Fred Korematsu brought his challenge to Japanese internment to the Supreme Court, arguing that the mere fact he was Japanese did not justify imprisonment. But by then, he was facing a court too timid to stand up to a wartime president and so he was told his detention was lawful in Korematsu v. United States, 323 U.S. 214 (1944).
That is the dark history Senator Warren is attempting to repeat. She should be ashamed of herself that she is doing this and we pray she is never successful.
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