Quo Vadis - the Robert’s Court
Prof. Arthur Kane Scott
As most of America watch aghast as the Trump administration daily violates the law with impunity, Robert’s Court remains deathly silent, not ever uttering a word. Its stonysilence, rationalized as being outside the fray of politics jeopardizes checks/balances and separation of powers, both fundamental to our democracy.
Likewise, its silence during the impeachment hearings fueled the imperium reach ofthe executive at the expense of Congress as it did nothing around the issues of witnesses or executive documents, thereby undermining its moral role as theultimate umpire of our democracy by acting as a check on the executive and yes, the legislative. Wake up Mr. Chief Justice, and call PresidentTrump out as Judge Sirica did Richard Nixon.
Similarly, Attorney General Barr further devastated the practice of justice in Americaby his arbitrary actions barelyshowing any respect for theruleof law. It began with the Mueller report in which Barr high-jacked its findings by announcing that the investigation had not proven its case against Trump regarding obstruction of justice and abuse of Presidential power. This was patently untrue, but the Mueller report`s veracity was lost in the timing and politics of the presentation.
Barr also interfered with the impeachment process by attempting to prevent the whistle blower’s concern from being presented to Congress, and by withholding critical information about the Ukrainian call. Adding insult to injury, he recently interfered in theRoger Stone case by requesting a lighter sentencing, which led 4 attorneys to resign in protest from the case, and to more than 2,000 prosecutors calling for Barr’sresignation. Judge Amy Berman Jackson insisted that the Stone trial was not biased asStone “was not prosecuted, as some have complained, for standing up for the President. He was prosecuted for covering up for the President.”
Barr’s leadership thus far has created consternation among theJustice Department’s civil servants, who are committed to the sanctity of law and playing fair but haveseen their integritycompromised by daily abuses of power. Again, Robert’s Court is silent.
Making matters even worse for the security ofAmerica, Trump has appointed a hack, Richard Grenell, to head theDepartment of National Intelligence, at the very time thatCongress was warned about continuous Russian interference in 2020 election.Trump’s and Mitch McConnell’s, refusal to publicly denounce such underhanded machinations poses a national security threat. The President obviously wishes to see Bernie Sanders as his opponent, as do the Russians, who can, through cyber warfare, create lots of chaos by playing different groups of Americans off againstoneanother. Sanders’“socialism” is a topic made to order for Trump, ever skillful at manipulating fear. A strategy he learned from Roy Cohen, who was Senator Joseph McCarthy’s alter ego, during the “red fear” era of the 1950`s.The Biden come back, however, has removed Sanders from the political equation.
More recent is the conflict between Trump and Justice Sonia Sotomayor over the government’s short circuiting the appellate process by going directly to the Supreme Court for its verdict. Specific issue was the denial of green cards to applicants in Illinois on the grounds that they were likely to become public charges. This pattern of staying the actions of lower Courts jeopardizes the due process of the appellate Court, and indicative that the Supreme Court has lost its independence to the politics of the executive branch .In so doing, the Supreme Court, like the Republican Party,has enhanced the power of an imperial presidency at the expense of the legislature and the judiciary.
Perhaps this March, the Supreme Court will hear the case regarding Trump’s financial records/taxes, along with alleged hush payments to keep silent about his illicit affairs. The President has argued that he is immune from litigation while in the White House, but what makes this case so interesting is that the Manhattan attorney’s office is not requesting documents from Trump per se, but from the accounting firm, Mazars USA, which handles his finances. Mazars has agreed to turnover Trump’s finances,if the Supreme Court so rules. It will be fascinating to see how the Supreme Courtacts, as it strikes at the very heart of the Constitution, that no one, not even the President,is above the law, which was the core issue of the Nixon impeachment. One can only ask, why has it taken this Court so long to address this matter.
Other themes currently bitterly dividing the countryare abortion and access to medical assistance. In the Red States dominated by the ChristianRight, accessibility is being circumscribed on the basis that health/abortion clinics do not meet state safety standards, and thus need to be closed. This skews heaviest on the poor. For instance, in Louisiana and other states, women lack the time and money to seek out of state certified clinics.
The other matter that prevails here is the religious/gender orientation of the Justices themselves. First, there is a preponderance of Roman Catholics: John Roberts, Clarence Thomas, Sam Alito, SoniaSotomayor, and Brett Kavanaugh. Neil Gorsuch was raised Catholic and now identifies as an Episcopalian. Two of these Justices have been accused of sexual misconduct and should recuse themselves. In addition, there are only three women on the Court: Sonia Sotomayor, Ruth Ginsburg and ElenaKagan.Cultural background and behavior do impact the interpretations of Supreme CourtJustices, and the decisions they make.
The Affordable Care Act also known as Obamacare is also severely threatened on the grounds that $1.5 trillion tax cut passed by the Republican Senate for the richest Americans/industries/businesses eliminated the requirement that all had to buy insurance. This tax cut jeopardizes the law which serves 20 millionAmericans. The ACA, likewise, protects those with pre-existing conditions, provides subsidies for low income as well as coverage for young people age 26 still in school, and calls for Medicaid expansion in many states. Will this Republican onslaught on Obamacare never end and will Robert’s Court remain firm?
Other critical matters confronting this session include immigration, gun control, gay rightsand consumer protection. The Court is currently addressing the matter ofwhether or not the director of the consumer financial protection agency position should be independent of the presidency, or should the position be subject to Presidential approval. To rule in favor of the White House would gut the autonomy of the agency by placing the agency at risk and effectively undermine the spirit of Dodd-Frank.
Many Americans question the credibility and impartiality of the Court as it tilts ever further right under the machinations of Senate Majority Leader,Mitch McConnell, and former White House Counsel, Don McGann. McConnel has been quietly approaching older Republican Judges to consider retiring so that he and the Senate Republican majority can stack the Courts, the Appeals Court in particular, with younger conservative jurists.Liberal, Ruth Bader Ginsberg, too, has been under terrible Republican pressure to step down.
Again, Robert’s Court remains silent as the tomb.This is vastly different from the activism of John Marshall, who made the Supreme Court a co-equal branch, or Earl Warren who struck down segregation, or Louis Brandeis, the “People’s Lawyer”. Oliver Wendell Holmes warned us of a `clear and present danger` to democracy when the Courts fails to protect freedom of speech. Speaking out against a runaway Presidency falls under the purview of a`clear and present danger. `
McConnell and the Republican Party are responding to a vanishing segment of the American populationthat is out of step to the needs of an ever expanding technological urban society which is diverse,complex in life style, technologically driven,feminine, climate sensitive, ecologically grounded,in which socio-economic equalityis of paramount concern.
To bring freshness to the Court, to make it more reflective of a changing America, its membership should be termed out or retired when Justicesreach 70 years old. This would help the Court from becoming stagnant, tradition-bound and politicized by either Congress or the Presidency.
I end with this warning from Benjamin Franklin, “They who would give up an essential liberty for temporary security, deserve neither liberty nor security.”
Arthur Kane Scott is Professor of Humanities and Cultural Studies at the Dominican University of California and Fellow of American Institute of International Studies.
The Journal of America Team:
Editor in chief:
Abdus Sattar Ghazali
Senior Editor:
Prof. Arthur Scott
Special Correspondent
Maryam Turab
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