Eric the Blue

I tracked down today an interview I heard on NPR while driving to work one day last week. The NPR host, Michel Martin, was interviewing another Michel, Goodwin of the Georgetown Law faculty, on the Supreme Court’s recent decision in a case about mifepristone, the abortifacient that women living in states that have banned abortion can attain through the mail after a telemedicine appointment. Here’s how the interview began:

Martin: Why do you think the Supreme Court kicked this particular can down the road by keeping telemedicine access to mifepristone while the case plays out?

Goodwin: Well, there are strong interests here, including amongst the manufacturers, that this is a product that is kept in the marketplace. There are some that say this is because there are political interests that have been articulated about the midterm and real concern that if there were a different kind of ruling, it might intensify the Democrats’ ability to win midterm elections. The Supreme Court’s not a political arm of government, but many are saying that it’s acting very much like a political arm of government.

Martin: Is that a cynical take, or do you think that there’s merit to it?

Goodwin: That is a very good question . . . .

It was the assumption that there is truth, and then there is cynicism, that cracked me up along I-94 in north Minneapolis and made me remember the interview now. Obviously the Supreme Court is “acting very much like a political arm of government.” It’s not entirely the Court’s fault. Sometimes in a democracy decisions have to be made. The Constitution does not allow the president to act unilaterally and the Congress, with its two houses, the filibuster rule in the Senate, close margins, and a rogue’s gallery of preening nitwits, has excused itself from the task. That leaves the Supreme Court to act as a kind of legislature of last resort, and they keep up the pretense by pretending that they’re interpreting the Constitution.

Should a woman be permitted to have an abortion? Congress can’t decide, or won’t say, so the Supreme Court steps into the breach. The justices declare abortion to be a constitutional right, and then some years later different justices say no, it is not, and states can if they wish ban it. Senators and US representatives merely get interviewed about this and other matters on cable news shows.

The ideological composition of the Supreme Court is thus one of the gravest concerns of our federal government. There are 435 gesticulating representatives, a hundred talkative senators, and just nine justices who call the shots. Luckily for Republicans, the composition of the Court is largely a matter of actuarial happenstance and the machinations of octogenarians like Mitch McConnell. It’s not as if the the people have voted to be ruled by the Supreme Court, let alone by the current one. Clarence Thomas is the longest serving current justice. He was appointed by H.W. Bush 35 years ago, in 1991. The presidential elections that have occurred over the period that the current Court came into power therefore go back to 1988. There have been a total of ten, the Democrats and the Republicans have each won five, and, in two of the five Republican victories, more Americans voted for the Democratic candidate. These circumstances have yielded a 6-3 Republican supermajority on the Supreme Court, which would be bad enough, but it comes with a built-in supermajority in the de facto legislature as well.

Other factors that I’ve alluded to contribute to the charade. In his first term, Trump appointed three of the nine current justices. He had lost the national vote by 46 to 48 percent. The confirmation of judges is one of the few Senate functions to which the filibuster rule does not apply–a simple majority will suffice. Currently, there are 53 Republican senators, and they represent between 46 and 47 percent of Americans. The rest, about 53.5 percent, are represented by senators who caucus with the Democrats. This is possible because every state, no matter how large or small its population, has two senators. In the Senate, then, the “minority party” represents the majority of Americans. The same situation prevailed during Trump’s first term. So, with regard to Supreme Court appointments, a president who had lost the national vote nominated someone who was then narrowly confirmed by a Senate “majority” party that represented a minority of Americans. This happened three times. These justices will rule until they die, if they want. In fact their age and medical record are considerations when the qualifications of potential nominees are under review. I mentioned that Clarence Thomas has been at it for 35 years.

People seem shy about dropping the word “cynical” but really, when the topic is the Supreme Court, our federal government in general, and the status of what is often called in reverential tones “our democracy,” we need a word quite a lot less pale than that.