High Court’s right-wing onslaught prompts demands for radical judicial reform
By a 6-3 vote, the justices sided with Lorie Smith, an evangelical Christian and Colorado web designer who opposes same-sex marriage. | Andrew Harnik/AP

WASHINGTON—The onslaught of right-wing rulings by the U.S. Supreme Court’s Republican-named majority came into sharp relief for the entire country as the justices finished their work on June 30.

Three rulings announced in one day last week set off waves of anger and determination to fight against a Court determined to squash existing rights for entire categories of Americans:

  • One ruling tossed out 45 years of precedence for affirmative action in college and university admissions. The ruling will allow colleges and universities and eventually perhaps all kinds of other institutions to discriminate against Black and other minorities.
  • Another ruling allows businesses to discriminate against LGBTQ people by letting them refuse service to gay, lesbian, trans, and other people on so-called religious or other grounds. It is seen by human rights advocates as a possible first step in the Supreme Court eliminating the right to same-sex marriage, something right-wing Justice Clarence Thomas has declared must be “revisited.”
  • A third ruling threw out President Joe Biden’s student loan forgiveness program as an “excessive overreach” of executive power—even though federal law gave Biden the power to institute the forgiveness. The Heroes Act, which is the law of the land, stipulated that the Administration has this power. The Court ignored that and wrote its own law to supersede law written by Congress, the constitutionally designated lawmaker and voice of the people.

And that’s not even counting the 9-0 ruling for an “Evangelist Christian” postal worker who refused to work on Sundays—all in the name of freedom of religion above all, even at the expense of his colleagues on the job.

Demonstrators protest outside of the Supreme Court in Washington, Thursday, June 29, 2023, after the Supreme Court struck down affirmative action in college admissions, saying race cannot be a factor. | Jose Luis Magana/AP

All four of these rulings come on top of the festering wound and rapidly spreading damage from last year’s Dobbs vs Jackson Women’s Health Organization decision eliminating the national constitutional right to abortion.

“The justices are destroying the legitimacy of the Court,” Rep. Alexandria Ocasio-Cortez, D-N.Y., told CNN’s State of the Union. That’s “profoundly dangerous” for democracy, she said.

The rolling back of constitutional rights comes as the Supreme Court sinks deeper and deeper into scandals and conflicts of interest involving huge payments to at least two of the right-wing justices by corporate billionaires as cases involving them sit on the Court dockets.

“We have a broad level of tools to deal with misconduct, overreach, and abuse of power, and the Supreme Court has not been receiving the adequate oversight necessary in order to preserve their own legitimacy,” Ocasio-Cortez added.

“When one group’s dignity and equality are threatened, the promise of our democracy is threatened and we all suffer. Our work to advance equal rights for everyone will continue,” President Biden pledged after the anti-LGBT ruling came down.

The controversial decisions that erode the court’s legitimacy for most of the country actually began 23 or more years ago. That’s when the justices, 5-4 on party lines, seated George W. Bush in the White House in 2000. Before that, the radical right fringe led the caterwauling against the court. Remember the John Birch Society slogan after the justices outlawed segregation? “Impeach Earl Warren!”

Attacks on workers

But since 2000, the court’s Republican majority has progressed through weakening unions and workers—the Janus case making every state and local worker a potential “free rider,” and another case saying mandatory arbitration overrides even union contracts, just to take two of many examples.

The justices also destroyed campaign finance laws, thus legalizing corporate graft and big-giver influence through campaign contributions and untraceable “dark money.” Their rationale: “Corporations are people” and enjoy the rights of free speech people have—even though corporate “speech” drowns out everyone else’s.

Earlier in this current Court term, the majority refused to let the government protect people against coronavirus contracted on the job and turned the entire nation into a modern version of the Wild West by removing almost all gun controls. The corporate class routinely wins 90% of its cases before the High Court majority, while AFL-CIO General Counsel Craig Becker says labor lawyers have given up on the court, realizing they’ll automatically lose to the right-wing ideology and pro-corporate tilt.

All this, and more, gives even greater impetus to plans to, as one group puts it in its name, Fix the Court. There are any number of ideas floating around to make the justices more attuned to what the country needs and wants. They include:

  • Expand the court. Congress can fix the number of justices, by law. It’s been nine since 1869, to match the number of courts of appeals the nation was then divided into, so each justice is responsible for emergency cases—usually death penalty cases—from one circuit. Before 1869, the number of justices began at six and briefly reached ten before retreating to nine.

But now there are 13 circuit courts, so advocates of expanding the Supreme Court say there should be one justice per circuit. Eleven circuits cover the states. The D.C. Circuit Court of Appeals handles almost all federal government cases. There’s also a specialized Court of Appeals for the Federal Circuit, which handles claims against the U.S.

Adding four justices would help right the right-wing tilt—assuming Democrats retain the White House and the Senate next year, and add a House majority, so the legislation can pass.

“Meet With Your Member of Congress,” another group, Demand Justice, urges. It wants constituents to write lawmakers advocating adding four more justices—then follow up face to face.

“Tell them to expand the Supreme Court,” the group urges. “Donald Trump and Mitch McConnell,” the Senate Republican leader, “stole two Supreme Court seats, and our basic civil rights and decades of progress are at risk. To restore balance, we need Democrats in Congress to work together to pass the Judiciary Act and expand the court by four seats.”

Some, including the president, argue that expanding the Court that way will permanently politicize it. “That bus has already left the barn.” declared Ellie Mystal, an MSNBC commentator from the Nation magazine.

In addition to being right-wing ideologues, the Court majority is using the cover of their robes to carry out unconstitutional attacks on democracy. The U.S. Constitution allows for the expansion of the Court precisely to deal with growth in the number of judicial districts and the eventuality that a closed cabal might one day take over the Court. That, of course, is precisely what has happened. If Congress expands the court they will be using a constitutional remedy for the unconstitutional activity of the right-wing majority on the Court.

We also need more pro-worker and pro-Constitution Democrats in Congress, period, especially given the Republican Party’s fealty to chief insurrectionist, invader, and coup d’état plotter Donald Trump. For decades, Republicans have prioritized packing the nation’s courts. Democrats, remembering FDR’s 1937 failure, haven’t. Now they’re finally coming around to understanding the courts’ importance.

Another change needed includes term limits. The justices now serve life terms. Impeachment, retirement, or death are the only ways to remove them. Lower court judges take “senior”—semi-retired—status at age 70.

Pushing term limits

Earlier this year, a group of House Democrats reintroduced the Supreme Court Term Limits and Regular Appointments Act. It would require future justices to take senior status after 18 years on the bench. They could retire, or fill in when there are recusals or unexpected vacancies, or sit on lower courts—as retired Justice David Souter occasionally has in the Boston-based 1st U.S. Circuit Court of Appeals.

“From the nation’s founding to 1970, justices served 15 years on average,” Fix the Court says. “That number has nearly doubled in the last few decades, as the power the court abrogated to itself also increased exponentially.” It says two-thirds of the U.S. backs the term limits.

“Under the plan, each president would appoint a justice every two years, making the appointment process more predictable and less politicized,” the group says.

More predictable? Yes. Less politicized? In the political environment that has lasted for decades, no.

Starting in the 1987 clashes over Republican President Ronald Reagan’s nomination of Robert Bork—the man, who, as Richard Nixon’s Solicitor General, carried out the Watergate-era “Saturday Night Massacre—High Court nominations have been politicized far more often than not. And, as the decisions show, so is the court.

  • The Project on Government Oversight adds two more ideas. One is an age limit. The United Kingdom’s age limit for its High Court of Justice members—who are part of the House of Lords—is 75. Germany has an age limit of 68, and a 12-year term limit, regardless of age.
  • The other is rotating panels of justices so that all the justices do not hear every case. The Supreme Court accepts around 1% of the cases it receives every year.

POGO floated this idea, too. It notes all U.S. appellate courts hear most cases with panels of three judges, in a rotation chosen by lot. That prevents any one judge from having too much outsized influence on all the rulings since the panels’ decisions are rarely appealed to the full circuit court. Why can‘t the Supreme Court do that, too? it asks.

  • An enforceable ethics code, and a ban on ownership of specific stocks and bonds. The justices have refused to approve an ethics code covering themselves or their families, despite scandals surrounding Republican big givers lavishing expensive trips and other perks on Justices Clarence Thomas and Samuel Alito.

Thomas in particular covered up the lavish deals he got from GOP big giver Harlan Crow by refusing to list them on his financial disclosure forms. Alito didn’t list an expense-paid trip to Alaska by another big giver. He also didn’t list a later trip to Rome, paid for by Notre Dame University’s Religious Liberty Initiative. There Alito inveighed against critics of the anti-abortion Dobbs ruling—after he wrote it.

  • Families must be included, too. Thomas’s spouse, Ginni, is a well-known and outspoken lobbyist and advocate for radical right groups and gave them—and him–entrée into the Trump regime’s White House. Chief Justice Roberts’s spouse, an attorney, still gets retainers from her past service with a judicial search firm.
  • Bar membership in partisan organizations. Fix The Court notes five of the six Republican-named justices—all but Roberts—are members of the Federalist Society, a right-wing lawyers’ group whose open aim is to stack all U.S. courts with ideologues in black robes.

A Federalist Society heavyweight

The Federalist Society’s heavyweight, Leonard Leo, evaluated and approved judicial hopefuls for the Republican Trump regime, and not just for the Supreme Court.

One lawyer whom Leo approved, Trump nominated, and the then-Republican-run Senate OKd is Aileen Cannon, now running the Trump-purloined secret papers case in U.S. District Court in Florida. And Leo extended his reach into state courts, approving Florida State Supreme Court nominees for right-wing Republican Gov. Ron DeSantis.

After a decade of demanding the court discipline itself on ethics, and being met with silence or refusal, Senate Judiciary Committee Chairman Dick Durbin, D-Ill., has had it. He plans to work on a Supreme Court ethics code bill after lawmakers return from the July 4 recess.

Meanwhile, the case that impacts the greatest number of people most immediately is the student loan decision, Biden v Nebraska. Biden promptly vowed to find a way to work around the justices’ ruling.

With some 43 million present and former college and grad students facing $1.8 trillion in loan debt—which the court says they must repay, not to the colleges, but to the financial class—the end of the $400 million loan relief plan drew the most consternation.

“Do they not care? Or are they so far removed from it (the issue) that they don’t have to think about it?” Eastern Illinois University grad student Shyra Bluminberg told the Washington Post as she joined others marching in front of the White House.

Added Scarlet Anderson, a young graphic designer and college grad who lost her job when the virus hit, but then did not have to repay the debt under the moratorium the justices now ended: “I have no hope.”

“I believe the court’s decision to strike down our student debt relief plan is wrong,” Biden said. “I will stop at nothing to find other ways to deliver relief to hard-working middle-class families. My administration will continue to work to bring the promise of higher education to every American.”

Biden said later he would try to use an older law, the 1965 Higher Education Act, to renew the moratorium. Congress, including the Democratic-run Senate, recently passed House Republican legislation banning student loan forgiveness. Biden vetoed it—a point he made in his speech.

“The Heroes Act”—a 2003 loan relief law—”contains just a single sentence, but boy, is it an important sentence. Essentially what it says, is that in the situation of a national emergency, which COVID clearly was, the president…has the authority to take action” for student loan relief, Betsy Mayotte, president of the Institute of Student Loan Advisors told WCNC in Greensboro, N.C. The right-wing Court majority said Biden overstepped in using the Heroes Act.

Allows businesses to refuse service to LGBTQ people

The most radical decision of the recent group of Court rulings lets businesses discriminate against minority groups, specifically LGBTQ people. A Colorado law that bans such discrimination cannot stand, the six Republican justices declared.

The anti-LGBTQ case should never even have been heard by the Court because no one had come to the plaintiff asking her to design a website for LGBTQ people. Showing its crass right-wing political nature, the Court simply issued a ruling that preemptively discriminates against LGBTQ people in case someone who might hate the idea of a same-sex couple, for example, would ever be asked to extend business services to them. A theoretical extension of that ruling brings to mind the past legality of restaurants refusing to serve non-white people,

The justices, led by Trump appointee Neil Gorsuch, used the Constitution’s 1st Amendment free speech clause to say states—and, by implication, the U.S. government—cannot regulate “expressive speech” even when the speech produces conduct, in this case a refusal to sell, to anyone the seller objects to, in this case, gays.

Leading the three progressive dissenters, Justice Sonia Sotomayor raised the possibility that the Court could repeat past U.S. history—of the post-Reconstruction era, which saw the imposition of Jim Crow. First, those justices threw out the Civil Rights Act of 1875, which also banned discrimination by race in businesses and public accommodations.

The decision immediately upends debt relief that the Education Department approved last fall for 16 million borrowers and the pending applications of millions of additional borrowers. | Mariam Zuhaib/AP

Then, in 1894, the court blessed racism, aka “separate but equal.” What followed for decades was separate and very unequal.

“Full and equal enjoyment came to mean ‘separate but equal’ enjoyment. The result of this backsliding was the replacement of a general right of access with a general right to exclude…in order to promote a racial caste system,” Sotomayor wrote.

The court’s ruling ending affirmative action in college admissions left college administrators scrambling for ways to preserve diversity on campus, and the presidents of both national teachers’ unions steaming. Both the Teachers (AFT) and the National Education Association include college professors in their ranks.

“This is nothing more than politically charged, regressive policymaking from the bench,” said Teachers President Randi Weingarten, a New York City civics teacher with a law degree. Other commentators noted the ruling marks another instance of lawmakers shucking their constitutional responsibilities to set policy, leaving it to the justices’ whims.

“It’s long past time Congress fulfills its responsibility in reining in a dangerous court that routinely issues unacceptable, unpopular, and damaging opinions in the name of a partisan agenda. Our fight for justice will continue. But this decision is a stain on our nation’s principles that will not be so easily reversed,” warned Weingarten.

“Racism and discrimination are not just artifacts of American history but continue to persist in our society,” said NEA President Becky Pringle, a Philadelphia science teacher. “Affirmative action and programs like it expand higher education opportunities to those historically denied a fair shot. When we ensure the many talents and experiences of students of color aren’t overlooked in admissions processes that tend to be biased against them, we create schools, a country, and a future that includes us all.

“NEA remains committed to that work” and demands schools, colleges, and universities “redouble their efforts to ensure our educational institutions support all students equally and equitably.

“We are stronger when our country, communities, schools, and future includes and reflects all of us. Today’s decisions by an out-of-touch and hyper-conservative Supreme Court are yet more evidence that the court is not working for all of us.”

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Mark Gruenberg
Mark Gruenberg

Award-winning journalist Mark Gruenberg is head of the Washington, D.C., bureau of People's World. He is also the editor of the union news service Press Associates Inc. (PAI). Known for his reporting skills, sharp wit, and voluminous knowledge of history, Mark is a compassionate interviewer but tough when going after big corporations and their billionaire owners.