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Can the Supreme Court’s Rapidly Decomposing Credibility Be Revived?

United States Supreme Court Building, Washington D.C.

Since Antony Scalia’s passing in February 2016, the decay of the Court’s credibility as an apolitical institution has accelerated. But it didn’t start there in modern times.

Justice Scalia, of course, sided with the majority in the Court’s December 12, 2000, 5–4 per curium (unsigned) decision in Bush v. Gore awarded Florida’s 25 electoral votes to George W. Bush, sealing his victory. The machine recount had Bush ahead by 327 votes out of more than six million, even in the face of “hanging chads,” “pregnant chads,” “overvotes,” and “undervotes,” and the Palm Beach County’s confusing butterfly ballot design that led 3,400 residents who thought they were voting for Gore to mistakenly vote for Buchanan. On December 8, 2ooo, the Florida Supreme Court ordered an immediate manual recount, which Bush convinced the United States Supreme Court to terminate. Abandoning their dying commitment to principles of federalism (the authority of the federal government is limited, states are sovereign bodies, and courts should enforce federal limitations wherever possible in favor of state power), the conservative majority refused to defer to the Florida Supreme Court and Florida election laws. Bush v. Gore Analysis.

The Federalist Society would avert its eyes just this once.

The Pedestrian, Oil on Canvas, Richard J Van Wagoner, Courtesy of Richard A. and Helen Bero Van Wagoner**

Shortly after Scalia’s passing came McConnell’s proudest moment, what he characterized as “the most consequential decision I’ve made in my entire public career,” when he “looked Barack Obama in the eye and . . . said, ‘Mr. President, you will not fill the Supreme Court vacancy.’” I haven’t studied McConnell’s political legacy in detail but given the deep and rapid degradation of the public’s perception of the Supreme Court as an apolitical, independent branch of government, I won’t disagree that McConnell’s most consequential decision was refusing to hold confirmation hearings for Mr. Obama’s nominee Merrick Garland. His proudest moment soon caused a fundamental shift and downward spiral in the high Court’s integrity.

A Federalist Society hat trick ensued, with Gorsuch, Kavanaugh, and then, of course, Coney Barrett who was confirmed one week before the 2020 presidential election and 30 days after she was nominated. McConnell and other conservative senators — Lindsey “Use My Words Against Me” Graham — predictably reaffirmed their morally unencumbered duplicity. The Federalist Society, begun in 1982 at Yale Law School during Reagan’s first term, now has six of its current or former members on the United States Supreme Court. The Federalist Society is financed by the likes of the Koch brothers, and membership in and vetting by the society are the first and second qualifications for conservative nomination to the Supreme Court. “Thank you, sir. May I have another.” Being male and white hasn’t hurt either. Of the 115 people nominated and confirmed as justices to the Supreme Court, all were men until 1981. The first Black male, Thurgood Marshall, was elevated to the Court in 1967. The second, Clarence Thomas, succeeded Marshall in 1991. Five of the 115 members, or 4.3 percent, have been or are women. No Black woman has been on the Supreme Court. Supreme Court Demographics. No, the Supreme Court does not resemble and has never resembled the citizenry it purports to serve, not even close.

“[S]ince the [Federalist] Society’s founding, the doctrine of federalism has become the basis for a new, conservative orthodoxy in U.S. law.” Laundering Racism Through the Courts: The Scandal of States’ Rights.

The Supreme Court owes its membership to partisan politics. McConnell’s most consequential decisions and his proudest moment (and likely second proudest) — Garland/Gorsuch and Coney Barrett — highlight the political nature of the Supreme Court and undermine individual justices’ recent protestations that they rise above it. After the Court’s suspect use of the shadow docket to keep vigilantism in place, a mechanism to chill the exercise of existing constitutional rights, and as oral argument in Dobbs v. Jackson Women’s Health Organization approached Justices Clarence Thomas, Samuel Alito, and Amy Coney Barrett armed themselves with the talking points. They set out to “convince” the public that, as the final arbiters of the Constitution and its meaning, they simply apply their independent constitutional jurisprudence to cases that come before the Court, they are not ends-oriented and, with lifetime appointments, they are not buffeted by political winds. The facts and law take them wherever they go. Just ask them. The least credible of the three may be Justice Thomas. See Ginni Thomas a Threat to the Supreme Court?

In the words of Justice Amy Coney Berrett who stood at a podium next to Mitch McConnell in a building named after him on the University of Louisville campus: “[M]y goal today is to convince you that this court is not comprised of a bunch of partisan hacks.” Good Luck With That.

The liberal justices correctly portend that the Supreme Court’s retrenchment on women’s reproductive rights will not pass the smell test of political neutrality.

Watercolor, Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**

Nor does the Supreme Court as an objective and fair arbiter of equality, equity, and racial justice, which is also in steep decline, as members behave in ideological and partisan ways.

“On its face, the conservatives’ attachment to federalism may not seem particularly objectionable. After all, the founders did divide power between the federal government and the states so as to facilitate policymaking by those legislators most familiar with the issues in question. It is becoming clear, however, that the practical consequences of the conservatives’ attachment to federalism are far from benign. For African Americans, particularly those living in states of the former Confederacy, the impact of federalist doctrine as implemented by the Supreme Court has been no less than devastating — so much so that the justices’ view that it is justified by the principle of state sovereignty is indefensible.” Laundering Racism Through the Courts: The Scandal of States’ Rights

McConnell’s proudest moment came soon after the Federalist Society majority used state’s rights as a means to reverse “hard-won progress toward racial justice,” profoundly illustrated by the Court’s 2013 pronouncement in Shelby County v. Holder. The Voting Rights Act of 1965 (VRA), considered by many as the most effective civil rights law, required nine states and six municipalities with histories of race-based voter discrimination to prove to a three-judge panel or the U.S. Attorney General that any change in voting rules had neither the purpose nor the effect of discriminating on the basis of race or language. Ignoring the legislative record, the Federalist Society majority said congressional findings were outdated and continuing preclearance would violate the dignity of states.

In an article written more than two years before Trump’s post-election Big Lie campaign, Lynn Adelman explained:

“Since the demise of the VRA’s formula, states and municipalities formerly covered by the law have implemented numerous discriminatory voting procedures. . . . [T]he decision opened the floodgates, enabling states and local governments with the most egregious histories of discriminating against the voting rights of minorities to start discriminating all over again.

“It was utterly predictable that, freed from the requirement of preclearance, the Southern states and municipalities would once again enact anti-democratic laws designed to suppress or devalue minority votes. The Court had only to pay attention to the evidence compiled by Congress as well as the long-standing connection between federalism and race, especially in the South. The U.S. government had to intervene in the South both to eliminate slavery and, a hundred years later, to eliminate Jim Crow. Further, there is substantial evidence that not much has changed, even when the discussion is confined to voting rights alone. In the twenty-four years prior to Congress’s reauthorization of the VRA in 2006, the Department of Justice or a three-judge court blocked more than 600 discriminatory changes to voting laws in covered states and municipalities.

“In short, it would have been obvious to any reasonably well-informed observer that striking down the preclearance rule would do great harm to the voting rights of African Americans in the South and to democracy itself. Nevertheless, the Court forged ahead, not only exalting the notion of state sovereignty but also reviving the equal dignity of states argument that arose out of the long-disgraced *Dred Scott* decision and that it had explicitly rejected in South Carolina’s 1966 challenge to the VRA. . . . The implications of adopting the ‘equal dignity’ of the states of the former Confederacy, as a constraint on Congress’s Reconstruction Power, are profoundly troubling.” ~ Laundering Racism Through the Courts: The Scandal of States’ Rights

Self Portrait, Oil on Canvas, Courtesy of Van Wagoner Family Trust**
Self Portrait, Oil on Canvas, Courtesy of Van Wagoner Family Trust**

The Big Lie

Then there was the Big Lie. In swing states that Mr. Biden won or that are turning purple, conservative lawmakers remain unconstrained by preclearance requirements — or consciences. They are trying to control both the election process and its outcome.

Adopting the false narrative, they have recreated themselves in Trump’s image, ignored evidence, and modified election rules to assure they win, placing obstacles before and otherwise disincentivizing voters of color. If they still lose, the fallback is to use partisan appointees and maneuvers to arrest and change the results based on a verifiably false claim of voter or election irregularity. Deep-seeded racial animus is at its core, and equitably extending the full panoply of rights and freedoms to all people feels oppressive to some whose accidents of birth made them white, or male, or heterosexual, or otherwise endowed them with an air entitlement.

Recognizing their real and practical disenfranchisement throughout the country’s history, candidate Biden vowed to appoint the first Black woman to the Supreme Court during a February 2020 debate in South Carolina. “At the time, his campaign was struggling amid losses in two of the early presidential contests.” Biden Expected to Nominate a Black Woman to the Supreme Court. Mr. Biden, it turns out, could not have won the nomination or the election without this historically marginalized, underrecognized, and underrepresented group that has never had one of its own on the Supreme Court.

During his meeting with Justice Breyer who announced his retirement from the Supreme Court, President Biden said:

“While I’ve been studying candidates’ backgrounds and writings, I’ve made no decisions except one: The person I will nominate will be someone with extraordinary qualifications, character, experience, and integrity, and that person will be the first Black woman ever nominated to the United States Supreme Court. It’s long overdue, in my view.”

Dog whistling over Mr. Biden’s decision to nominate a Black woman to the high Court began immediately. The GOP, conservative media, and pundits, including the pretenders, have come down with a sudden case of amnesia. Most won’t say it but intimate that an otherwise qualified Black woman does not exist. Senator Roger Wicker of Mississippi, however, did say the quiet part out loud: “The irony is that the Supreme Court is at the very same time hearing cases about this sort of affirmative racial discrimination, while adding someone who is the beneficiary of this sort of quota.” The White House’s forceful rebuke pointed out that then candidate Reagan had pledged to nominate the first woman to the Court, which “symbolized” the American ideal that “permits persons of any sex, age, or race from every section and every walk of life to aspire and achieve in a manner never before even dreamed about in human history.” Sen. Wicker, R. Miss., Black Woman Nominee Will Be Beneficiary of Quota System.

Their racist, misogynist pretext is that by conditioning the nomination first on her race and gender, the President is undermining the meritocracy in the United States, where the playing field is level and everyone has the same rights and opportunities, a fair chance, a system that “rewards the best and the brightest,” that doesn’t reward immutable qualities nearly so much as skill and hard work. Given endemic, structural racism and an economic system that disproportionately advantage certain folks over others, meritocracy in the United States is little more than “a pretense, constructed to rationalize an unjust distribution of advantage. . . . The problem, of course, is that elites cheat and they game the system and they engage in all kinds of self-dealing in order to get ahead.” Meritocracy. We could not otherwise have ended up with a Trump or his offspring.

Indeed, Mr. Biden understands that a highly qualified Black woman — and there are many despite, or maybe because of overcoming, historical and structural impediments — will bring to the Court a diverse set of unusual and distinct qualities — background, heritage, experience, culture, points of view, empathy, and now a voice — that has never existed on the Court but is shared by millions of United States citizens. “Finally. We now have the possibility of a Supreme Court that would look more like America.” Black Women in Law Feel Pride and Frustration Ahead of Court Nominee.

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*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to and Rob’s second novel, a beautifully written suspense drama that takes place in Utah, Wyoming, and Norway, dropped on November 17, 2020. Available on Amazon, Barnes and Noble, Apple Bookstore and your favorite local bookshop, this novel, **The Contortionists**, which Rob himself narrates for the audio version, is a psychological page-turner about a missing child in a predominantly Mormon community. I have read the novel and listened to the audio version twice. It is a literary masterpiece. **The Contortionists** is not, however, for the faint of heart.

**Richard J Van Wagoner is my father. His list of honors, awards and professional associations is extensive. He was Professor Emeritus (Painting and Drawing), Weber State University, having served three Appointments as Chair of the Department of Visual Arts there. He guest-lectured and instructed at many universities and juried numerous shows and exhibitions. He was invited to submit his work as part of many shows and exhibitions, and his work was exhibited in many traveling shows domestically and internationally. My daughter Angela Moore, a professional photographer, photographed more than 500 pieces of my father’s work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his artwork. The photographs of my father’s art reproduced in and are hers.



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Criminal defense and First Amendment attorney.