Stephen King: You're Not That Scary

“Random chance—a freakishly close vote in the single decisive state—gave the Supreme Court the chance to resolve the 2000 presidential election. The character of the justices themselves turned that opportunity into one of the lowest moments in the Court’s history.”

Sonia Sotomayor

(CALGARY, Alberta) - Time was, you wanted a good scare, you cracked a Stephen King novel. Now, for some, that’s no longer the case. King has been replaced by serious writers of political books.

Be afraid. Be very afraid.

In 1979 I read The Brethren, a book about behind the scenes at the Supreme Court by Bob Woodward of Watergate fame. It wasn’t much of a book. That is, it was well written and had lots of interesting details in it, but it wasn’t very scary.

Recently, I read The Nine: Inside the secret world of the Supreme Court by Jeffrey Toobin. This book delivers the goods. (Note: All unattributed quotes below are by Toobin.)

President Obama has nominated Sonia Sotomayor to fill the vacancy on the court left by the retiring David Souter. It certainly looks like she will be appointed. But is it going to be enough? She is still largely an unknown and considering the ideological maelstrom she is entering, I am not optimistic.

Here are the current Justices in order of their appointment giving for each, their current age, first year on the bench, president who appointed them and the vote confirming them. Some were unanimous or nearly so; two, Thomas and Alito had substantial but inadequate opposition to their appointments.

John Paul Stevens, 89, 1975, Gerald Ford (vote 98-0)

Antonin Scalia, 73, 1986, Ronald Reagan, (vote 98-0)

Anthony Kennedy, 72, 1988, Ronald Reagan (vote 97-0)

Clarence Thomas, 61, 1991, G. H. W. Bush (vote 52-48)

Ruth Bader Ginsberg, 76, 1993, Clinton (vote 97-3)

Stephen Breyer, 70 , 1994, Clinton (vote 87-9)

John G. Roberts, 54, 2005, G. W. Bush (vote 78-22)

Samuel Alito, 59, 2006, G. W. Bush (vote 58-42)

The scary part to which I refer is that conservatives have very nearly taken over the Supreme Court. There are now four significant conservative members on the bench (Roberts, Alito, Thomas and Scalia). All they need is one other vote and significant change in the legal landscape of the United States is possible, if not inevitable.

John Roberts

At his confirmation hearing, John Roberts said that “judges are like umpires. Umpires don’t make the rules; they apply them.” Disingenuous pap. Like it or not, the Supreme Court is a body ruled by ideologies. As Richard A. Posner, a conservative judge and law professor put it: “It is rarely possible to say with a straight face of a Supreme Court constitutional decision that it was decided correctly or incorrectly,” concluding that cases “can be decided only on the basis of a political judgment.” As Toobin observes, that while there is little difference between the justices in terms of intelligence, competence or ethics, what does separate them is judicial philosophy “and that means everything on the Supreme Court.” Some examples.

Clarence Thomas

Clarence Thomas is where he is because of all the benefits and advantages he received because of affirmative action. Yet he, of all the justices, is most against affirmative action, regularly quoting his hero, Frederick Douglass:

“What I ask for the Negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us….All I ask is, give him a chance to stand on his own legs. Let him alone!”

Thomas practised what he preached. Of his first forty law clerks only one was black. Prospective clerks had to run an ideological gauntlet. “Other justices hired clerks who generally shared their opinions; only Thomas imposed specific ideological litmus tests,” writes Toobin.

It was a three stage process, them having to pass two sets of interviews with law professors or lawyers. “Finally,” says Toobin, “the current group of clerks would interrogate the applicant. They asked about ideology—abortion, federalism, Commerce Clause, death penalty, search and seizure—to make sure the putative clerk shared Thomas’s (and their own) extreme views.” At the end of this process, Thomas required his new clerks to watch the 1949 movie version of Ayn Rand’s The Fountainhead—individualistic craziness taken to an extreme.

Thomas resents and hates what he terms “the elite” which includes most of the media (except Fox News) and, in particular the senators who opposed his confirmation. He hates Yale, his alma mater and, for a time, had a “Yale Sucks” bumper sticker on the mantel of his chambers.

Thomas has an intransigence of which he is proud. He describes colleagues on the court who, over time, “evolve” and “grow”. Of himself, he says, “I ain’t evolving.”

Steven Breyer

Breyer is an internationalist. He is the first justice in modern times to use foreign law as an aid to interpreting the Constitution. In 1999 the Court refused to hear the appeal of a prisoner who said that two decades on death row amounted to cruel and unusual punishment. In his dissent Breyer cited legal opinions from Jamaica, India, Zimbabwe and the European Court of Human Rights and said that “a growing number of courts outside the United States…have held that lengthy delay in administering a lawful death penalty renders ultimate execution inhuman, degrading or unusually cruel.”

In response, Thomas said that the court should never “impose foreign moods, fads or fashions on Americans.”

O’Connor and Ginsberg used foreign laws and rulings to help them decide on how to rule in American cases. For this, they received death threats.

The conservative outcome

In Roberts’s second year, as the spring of 2007 wore on, writes Toobin

“the pace of conservative change accelerated. The Court invalidated some of the restrictions on political advertising in the McCain-Feingold campaign finance bill, less than four years after the Court had approved practically the same rules. In a key church-state ruling, the Court made it much harder for citizens to challenge government activity that endorsed or supported religious activity. In a curious case from Alaska, the Court reduced the free-speech rights of students by approving the suspension of a high school senior who unfurled a banner that said, BONG HiTS 4 JESUS. All of these cases were 5-4 which Kennedy joining the conservatives.”

In another case, the same majority rejected an appeal by a prisoner who had filed three days late. The judge had misread the law and given the prisoner too much time to file—three extra days—and the Court ruled that the case had to be thrown out.

In his dissenting opinion, David Souter said “it is intolerable for the judicial system to treat people this way, and there is not even a technical justification for condoning this bait and switch.”

Cases are being covertly overruled. “In several of these cases,” says Toobin, “on abortion, campaign finance, and church-state relations—the rulings of the majority directly contradicted Court precedents, but Roberts and his colleagues did not come out and say that the old cases had been overruled. This frustrated Scalia and Thomas, who wanted to see the Court make more explicit denunciations of its past.”

The hijacking of Brown v. Board of Education

After being settled law for more than half a century, Roberts and his conservative colleagues rejected Brown in appeals from Louisville and Seattle school desegregation cases, saying “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

But in writing the dissenting opinion, Breyer wrote that “the lesson of history is not that efforts to continue racial segregation are constitutionally indistinguishable from efforts to achieve racial integration…it is a cruel distortion of history to compare Topeka, Kansas, in the 1950s, to Louisville and Seattle in the modern day.” This ruling could mark the beginning of the end of all affirmative action—in employment, in business and government, as well as education. The “color-blind” Constitution of Thomas and Scalia now included Roberts and Alito.

In this case Breyer was taking a last stand “against the agenda that was born in the Reagan years, nurtured by the Federalist Society, championed by the right wing of the Republican Party, and propelled by the nominations of Roberts and Alito. Expand executive power. End racial preferences intended to assist African Americans. Speed executions. Welcome religion into the public sphere. And, above all, reverse Roe v. Wade and allow states to ban abortion. As Breyer knew better than anyone, the two new justices, plus Scalia, Thomas, and (usually) Kennedy, put all these goals tantalizingly within reach.”

At the end of his dissent Breyer added words that did not appear in the published version of his opinion:

”It is not often in law that so few have so quickly changed so much.

Antonin Scalia

Scalia is a dogmatic ideologue in the vein of Clarence Thomas. He was isolated and revelled in it. His judicial philosophy was of an “originalist”, that is, someone who believes that if it isn’t explicitly written in the Constitution, it cannot be considered. He wanted judges to apply clear rules, dictated by the intent of the framers, and the long history of entanglement between religion and American public life gave him ample material for his originalism. Prayer in schools, religious displays like crèches on public land, public celebrations of God—were all things that were present at the time of the framers and, thus, should be allowed today.

At an appearance at a New York synagogue in 2005, Scalia was asked to compare his judicial philosophy with that of Thomas. He said: “I am an originalist, but I am not a nut.”

Bush and the 2000 election

“Random chance—a freakishly close vote in the single decisive state—gave the Supreme Court the chance to resolve the 2000 presidential election,” says Toobin. “The character of the justices themselves turned that opportunity into one of the lowest moments in the Court’s history…the justices displayed all of their worst traits—among them vanity, overconfidence, impatience, arrogance, and simple political partisanship. These three weeks taint an otherwise largely admirable legacy. The justices did almost everything wrong. They embarrassed themselves and the Supreme Court.”

Sandra Day O’Connor was a Republican partisan, her first mentor in Arizona having been Barry Goldwater. The night of the election was close—everyone knew is it was going to be—and the O’Connors, as they traditionally did, spent election evening at a party. When the networks initially called Florida for Gore, O’Connor looked stricken. “This is terrible,” she said, “That means it’s over.” Later, when her remarks became public she tried to downplay them by saying she meant that it was over even before the West coast votes were counted.

Initially, the Bush lawyers failed to have the recounts stopped. But they had an advantage—Katherine Harris—who, as secretary of state, was both a partisan elected official and an ostensibly neutral arbiter in elections. You don’t need to be reminded of the result of that combination. Florida also had a Republican governor, Jeb Bush (brother of) and Republican majorities in both Houses.

Whether the Supreme Court should become involved in the election was counter-intuitive. Elections had always been run by states and not by federal courts. Florida was just doing what states had done for generations. Counting votes had never before been seen as a violation of the Constitution.

A majority of the Supreme Court wanted the case. The Republicans asked for expedited consideration of their case even before the Democrats had a chance to defend the ruling of the Florida Supreme Court. On November 25, five justices ruled to accept the case: Rehnquist, O’Connor, Scalia, Kennedy and Thomas.

By the time of the opening arguments on December 1, the discussions broke down into minutiae. The justices seemed to be regretting even taking the case. Kennedy said, “we’re looking for a federal issue.” They ended up giving an innocuous ruling, thinking they were done with the case. “By the time the Court decided the first election case, the mood inside the building was poisonous.”

After a series of machinations in Florida, it came back to the Supreme Court. They would hear oral arguments on Monday, December 11. In the minority, Stevens wrote his dissent:

“To stop the counting of legal votes, the majority today departs from three venerable rules of judicial restraint that have guided the Court throughout its history. On questions of state law, we have consistently respected the opinions of the highest courts of the States. On questions whose resolution is committed at least in large measure to another branch of the Federal Government, we have construed our own jurisdiction narrowly and exercised it cautiously. On federal constitutional grounds that were not fairly presented to the court whose judgment is being reviewed, we have prudently declined to express an opinion. The majority has acted unwisely.” (emphasis added)

Scalia, says Toobin, “was looking at the election entirely through Bush’s eyes; by his own words, the justice was clearly more concerned about producing a clean victory for the Republican than about determining the will of Florida’s voters. Notably, Scalia’s concurring opinion was so extreme that no other justice joined it.”

We know the final result. Everyone moved on except David Souter who was the only unmarried person on the Court. Everyone else had families and lives outside the Court. To Souter, being a judge was his life. Toobin says, “he came from a tradition where the independence of the judiciary was the foundation of the rule of law. And Souter believed Bush v. Gore mocked that tradition. His colleagues’ actions were so transparently, so crudely partisan that Souter thought he might not be able to serve with them anymore.” He seriously considered resigning.

From that distorted judicial environment came eight years of George Bush, a war in Iraq, a devastated New Orleans abandoned, secret programs set up to undermine the privacy of American citizens, Guantanamo…the list goes on.

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Daniel Johnson was born near the midpoint of the twentieth century in Calgary, Alberta. In his teens he knew he was going to be a writer, which is why he was one of only a handful of boys in his high school typing class—a skill he knew was going to be necessary. He defines himself as a social reformer, not a left winger, the latter being an ideological label which, he says, is why he is not an ideologue. From 1975 to 1981 he was reporter, photographer, then editor of the weekly Airdrie Echo. For more than ten years after that he worked with Peter C. Newman, Canada’s top business writer (notably a series of books, The Canadian Establishment). Through this period Daniel also did some national radio and TV broadcasting. He gave up journalism in the early 1980s because he had no interest in being a hack writer for the mainstream media and became a software developer and programmer. He retired from computers last year and is now back to doing what he loves—writing and trying to make the world a better place