Averting the Supreme Court Apocalypse

Why a 6–3 court matters a lot more than just the outcomes of Supreme Court decisions.

are in trouble. We are about to lose the Supreme Court for generations and not just for the obvious and oft-stated standard reasons.

It is no secret that since conservatives were caught looking with the appointment of Justice John Paul Stevens that they have made it their decades long mission to swing the Supreme Court in their favor. And it has worked.

With the appointment of Justices Gorsuch and Kavanaugh their plan is almost complete. Gorsuch at age 51 and Kavanaugh at age 54, both solidly conservative jurists, will likely be on the court for the better part of the next three decades. Should we lose one of the liberal seats on the Court during a Republican presidency, the Supreme Court as a means of implementing and protecting liberal ideas will cease to exist for decades.

This has everything to do with how the Court takes up case. No single case or individual has a right to be heard in front of the Supreme Court; there are plenty of courts where appeal is a matter of right but not “the highest court in the land”. In order to have your case heard you must make an application to the court asking to be granted a Writ of Certiorari or Cert. The application, commonly called a petition, is a detailed legal document that lays out the opinions of the lower courts being appealed and the legal arguments why Cert should be granted. This is not a document for the faint of heart, here is an example.

This application is then put into what is referred to as the “Cert pool” where Supreme Court clerks review and analyze the underlying cases then draft memos to the Justices with their findings/suggestions. This method of considering cases is not without its critics, but it will not be going anywhere any time soon. The stated reason makes sense; the Court receives upwards of 7,000 applications each term and the Justices just don’t want to work that hard. With the exception of the above-mentioned Justice Stevens, who would famously eschew the cert pool and do it himself.

Once these cases are reviewed and briefed, it takes four justices to agree to hear the case. Here is where we find our problem. This is what should scare the pants off every progressive minded voter in America.

Unless we do something soon, the Court will no longer just be calling balls and strikes, they will be throwing the pitches too.

Once the fourth liberal vote is gone, not only will we lose on every single case that previously would have been a 5–4 squeaker — this being the commonly understood problem with a majority conservative court. We will likely never get to see cases that matter to progressives heard. Now that President Trump is packing the lower courts with unqualified or under qualified ideologues this threat is twofold.

way of example. October 8, 2019, the Court heard oral arguments in a case called Bostock v. Clayton County Georgia. This is a case of utmost importance to the entire spectrum of progressives; it deals directly with the rights of gay and transgender Americans to maintain their employment without fear of being fired because of their sexual orientation.

The question before the Court is whether the Title VII protections against discrimination “on the basis of sex” applies to sexual orientation. I strongly urge you to look up the basis for the arguments on both sides, it is fascinating stuff and provides context for debates about sexuality that play out every day in the news.

This is an issue that conservative legal groups have been salivating over and a definitive answer, that employers may discriminate against LGBTQ Americans without fear of federal civil rights law, will have them declaring victory in a decades long dispute.

Mr. Bostock lost his job because he was gay, he sought legal recourse and was denied. This denial was then affirmed on his appeal to the 11th Circuit — which should be noted has had three — soon to be fivevery conservative judges appointed by President Trump. His last refuge is an answer from the Supreme Court. Had his petition been denied, the 11th Circuit’s answer would have stood and established a precedent that would ripple through the country that would dramatically increase the likelihood that others like Mr. Bostock would be left without justice. Now, that wouldn’t be the end of the road, it would likely create what is called a “circuit split” and the question may make it back to the Supreme Court. But this would take years to play out while LGBTQ Americans pay the price.

LGBTQ rights are civil rights

Right now, in the latter half of 2019, the Court is a blow-off valve for some of the more egregiously decided cases likely to filter up from lower courts. The four liberal Justices can make the rest of the Court hold their noses and take their medicine. I’m not one to subscribe to the idea that any of the current members of the Court is an irrational ideologue who toes the line on every issue. Unfortunately, I don’t think this particularly jaunty optimism will hold once the fourth liberal vote disappears.

his isn’t being alarmist or engaging in hyperbole. If either Justice Ginsburg or Justice Breyer leave the court under a Trump presidency, then the swing vote becomes Chief Justice Roberts. While Justice Roberts came through on the ACA cases, he is no one’s idea of a centrist. And with only three votes for granting cert on whatever progressive issue comes up, even Justice Roberts with his apparent respect for the institution of the Court will be given plausible deniability for not taking them.

Chief Justice John Roberts and some guy.

Justice Roberts manages the court in such a way that he can say that it is not partisan. Arguments that this is not the case are valid, especially considering the shit-show that was the Kavanaugh hearings. However, there is just enough there that Roberts can pat himself on the back for “respecting” the institution or whatever other breathless thing that the media says about him. Once that window shifts, he can wrangle the justices to hear cases that have had their conservative appeals denied and elect to not take the cases where the progressives have lost in the lower courts.

Unless we do something soon, the Court will no longer just be calling balls and strikes, they will be throwing the pitches too.

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