OAN Guest Commentary – Kenin M. Spivak
4:30 PM – Friday, August 2, 2024
Last week, President Joe Biden proposed an 18 year term limit and an ethics code for Supreme Court justices, and a repeal of the Court’s presidential immunity decision. Presumptive Democrat presidential nominee Kamala Harris promptly agreed. The unseriousness of this proposal is visible in its brevity, at just 500 words. This isn’t a plan, it’s a press release.
It’s a dangerous press release because, though it has no chance of being enacted, it is part of a campaign to undermine the public’s belief in the Supreme Court, with the goal of ending the Court’s independence from progressive mandates.
Since 1953, every Chief Justice has been nominated by a Republican president. 17 of the associate justices who have served since then were nominated by Democrat presidents, and 17 by Republican presidents. Earl Warren, a former Republican governor of California, sought the Republican nomination for president in 1952. He was defeated by Dwight Eisenhower, who, after going on to win the presidency, nominated Warren to serve as Chief Justice. He was confirmed by acclamation and served until 1969, presiding over a transformation of the role and politics of the Supreme Court.
Under Warren, the Court shifted decisively to the left, and there it largely remained until Donald Trump’s appointments, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett joined the Court. Under Warren, and his successors, activist justices used novel interpretations of ideals they imagined to be part of the Constitution to make, rather than interpret, law. For 70 years, these justices extended the application of the Bill of Rights to the states; greatly expanded the rights of criminal defendants; interpreted protections designed to assure equality to enhance the rights of Blacks and women; expanded federal powers at the expense of the states; and granted unelected regulators many of the powers previously thought to reside in Congress.
Whether the president was Republican or Democrat, and regardless of which party controlled the houses of Congress, liberals could count on the Court to reject, curtail, modify, or even create laws that tilted in their favor.
As the Court moved left, progressives gained increasing influence over teacher unions, accreditation agencies, boards of education, trustees, K-12 schools, and universities. Affirmative action (now diversity, equity, and inclusion), disfavoring Western culture and conservative views and voices, and promoting progressive causes, increasingly dominated the academy. Supreme Court decisions on civil rights, affirmative action, and academic freedom bolstered these efforts, effectively leaving progressives in control of the nation’s education system.
Concurrently, progressives began an inexorable climb up the ladders of the federal bureaucracy and the bureaucracies of many states. Their ability to influence, and then make laws, was bolstered by a liberal Court. Notable decisions strengthened public sector unions, while Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984) required all courts to defer to government agencies’ interpretation of law. Progressives came to dominate the media, and gained influence among top officials in law enforcement, the military, and corporate boards.
Progressives used this power in a pincer movement to gain more power, and suppress dissenting voices, culminating in a whole-of-government censorship enterprise the Court refused to block.
With the Supreme Court doing their bidding, Democrats, traditional liberals, and progressives were in overdrive. When Justice William O. Douglas discovered “penumbras” emanating from the Constitution created a previously undiscovered Constitutional right of privacy in Griswold v Connecticut (1965), or other penumbras “formed by emanations” from the Bill of Rights created a complex legislative-like regime for a woman’s right to an abortion in Roe v. Wade (1973), progressives cheered the Court. Even pro-choice justices such as Ruth Bader Ginsburg conceded that Douglas’ constitutional scholarship was wanting.
Republican presidents endeavored to appoint justices who shared their political goals. Instead, they often nominated jurists with a conservative judicial philosophy, meaning they supported “originalism,” by which the Constitution and statutes are interpreted based on their plain meaning, or, where there are ambiguities, based on the intent of the drafters. A conservative judicial philosophy favors incrementalism, and generally gives considerable weight to prior Supreme Court decisions. It does not, however, place personal political perspectives above interpreting the law. That is the province of an activist judge.
Both conservative and activist justices occasionally overrule precedents when they perceive that the reasoning of those decisions was faulty, or, with regard to an activist justice, no longer conforms to contemporary standards. Of the more than 25,500 decisions handed down by the Supreme Court, it has only reversed 146 decisions, less than one-half of one percent. Notable examples include: Brown v. Board of Education of Topeka (1954) overturned Plessy v. Ferguson (1896), in which the Court held that “separate but equal” was constitutional. Lawrence v. Texas (2003) overruled a line of cases that permitted states to prohibit gay sex. Dobbs v. Jackson Women’s Health Organization (2022) overruled Roe v. Wade (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey (1992). Loper Bright Enterprises v. Raimondo (2024) overruled the Chevron case.
There also are cases in which the Court distinguishes facts in a manner that is similar to overruling precedent. The Court’s decision in Students for Fair Admissions (SFFA) v. Harvard College (2023) prohibiting affirmative action at Harvard and the University of North Carolina at Chapel Hill does just that.
Regardless of political and judicial philosophies, the justices often agree. In the Court’s last term, 45.8 percent of cases were unanimous. Of the 22 cases decided 6-3, only 11 were decided along ideological lines. For the others, both the majority and minority included a mix. Further, in the 11 cases decided along ideological lines, justices often filed concurring opinions, disagreeing with aspects of the majority decision.
The progressive effort to demonize the Supreme Court shows not just a profound indifference to American democracy and stability, but inflexibility in which minor deviations from dogma must be severely punished. In a Washington Post article announcing his proposal, Biden questioned the Court’s “fairness and independence,” and referred to decisions with which Biden disagrees as “dangerous and extreme decisions.” Speaking in Austin on July 28th, Biden asserted that the courts were being weaponized as part of an “extreme and unchecked” conservative agenda, and that that “extremism is undermining the public confidence in the court’s decisions.”
What is profoundly dangerous and extreme is the progressive effort to destroy the Supreme Court because occasionally its interpretation of the Constitution and federal statutes is other than theirs, or supports traditional American values and Court precedents.
The Left embarked on a campaign to humiliate and defeat Trump’s nominees for the Court, and then to savage the Court’s legitimacy. By the time Biden entered office, the Left demanded measures that would destroy the Court’s independence and make it a vassal of progressive dogma, including “court packing” by increasing the number of justices, term limits, and striping the Court of jurisdiction over cases for which the progressives feared the outcome.
Harvard Law professor Ryan Doerfler and Yale Law professor Samuel Moyn argued in The New York Times that progressives should “reclaim America from constitutionalism.” They aver that court packing and striping the Court of jurisdiction is insufficient because the “Constitution is inadequate, which is why it serves reactionaries so well.” Instead, they insist that Congress ignore the Court.
In an open letter last year, Harvard law professor Mark Tushnet and San Francisco State University political scientist Aaron Belkin called on Biden to defy rulings of the Supreme Court that he considers “mistaken” in the name of “popular constitutionalism.”
Biden boasts about defying the Supreme Court’s decision on student loans.
After the likely Dobbs decision leaked, progressives doxed the justices, releasing their home addresses. In violation of the 18, USC § 1507, which prohibits demonstrations in front of a courthouse or a judge’s home “with the intent of interfering with, obstructing, or impeding the administration of justice, or with the intent of influencing any judge,” and without pushback from law enforcement, demonstrators descended on the homes of conservative justices.
Majority Leader Chuck Schumer (D-N.Y.) threatened Justices Neil Gorsuch and Brett Kavanaugh from the Supreme Court’s steps, warning “I want to tell you Gorsuch. I want to tell you Kavanaugh. You have released the whirlwind and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.” Four days later, a man who admitted to police he intended to kill Kavanaugh was intercepted outside of Kavanaugh’s house carrying a Glock 17 pistol. A week later, the House approved legislation to provide security to family members of Supreme Court justices in a 396-27 vote. All of the “no” votes came from Democrats.
A poll taken in 2003, after progressives and other Democrats launched their efforts to destabilize the Supreme Court and pack it with like-minded justices, showed that 91 percent of Americans believe an independent judiciary is a crucial safeguard of our civil liberties, 72 percent believe the politicization of the Supreme Court threatens judicial independence, and 68 percent oppose court-packing.
The conflation of the job of the Supreme Court, to interpret the Constitution and law, with the job of politicians, to enact a constitutional agenda, undermines support for the Court. According to a recent Gallup poll, the Court’s approval is at a near-record low of 43 percent. 66 percent of Republicans, 44 percent of independents, and 15 percent of Democrats approve of the Court’s work. Approval fell to its lowest point, 40 percent in September 2021, and has not risen above 43 percent since then. The Court received its highest approval, 62 percent, in 2000 and 2001.
Schumer threatens violence. The Biden Justice Department refuses to protect conservative justices. Led by the Democrat president, progressives accuse conservative justices of extremism, illegitimacy, and being an enemy of democracy. Biden and the Left’s intelligencia advocate disregarding Supreme Court decisions. When Trump allegedly sought to delegitimize the electoral college, or advocated peaceful protest, we were told he is an insurrectionist. How are Biden, Harris, and Schumer any less? The rule of law cannot survive a president who defies the Supreme Court.
The proposed term limits – timed to force out three of the six conservative justices (Clarence Thomas, Samuel Alito, and John Roberts) – requires a Constitutional amendment. That would require two-thirds of each House and approval of state legislatures in three-quarters of the states. That will not happen, underscoring the that the proposal is merely performative virtue signaling.
The proposed repeal of the Court’s decision on presidential immunity mischaracterized the decision, which includes absolute immunity only for core constitutional acts, “presumptive” immunity for other official acts, and no immunity for personal acts. Government janitors receive at least partial immunity, and many in law enforcement receive absolute immunity for acts within their official capacities. Biden thereby misstates the Court’s immunity decision, and uses a meat clever that requires a Constitutional amendment, where minor adjustments through future appeals would suffice. No amendment will be adopted, underscoring that the proposal is more virtue signaling.
The ethics proposal has superficial appeal, with some major caveats. Article III, Section 1 of the Constitution grants lifetime appointments to Supreme Court justices “during good behavior” and prohibits a reduction in compensation. The remedy for “bad behavior” is impeachment pursuant to Article II, Section 4 for “treason, bribery, or other high crimes and misdemeanors.” Article III, Section 2 also grants Congress the right to devise “regulations” for the Court’s appellate jurisdiction (but, not its original jurisdiction for disputes involving States or foreign governments).
While Congress therefore likely could impose an ethics code hewed to defining treason, bribery, and other high crimes and misdemeanors, and enforceable by impeachment, the nation has gone 240 years without a Congressionally imposed ethics code. Moreover, the Court last year adopted a Code of Conduct that includes most of the elements in Biden’s proposal, except that it largely leaves the decision on recusal to each justice.
Progressive attacks target conservative justices, though Democrat appointees engage in similar behavior. Their attacks went completely off the rails when Senator Richard Durbin (D-Ill.), and others, demanded Justice Alito recuse himself from cases related to the elections and Trump, because his wife briefly flew an upside down American flag, and the Pine Tree flag, merely because some January 6th protestors did the same. An upside down American flag is a sign of distress; Alito’s wife was having a fight with a neighbor and it was her way of signaling displeasure. The Pine Tree flag was commissioned by George Washington and became an emblem during the Revolutionary War. It was flown in San Francisco until last year. It remains the official maritime flag of Massachusetts.
This outrage is feigned for the sole purpose of discrediting conservative justices. There is nothing inherently wrong with an ethics code, but there is something very wrong about a pretextual demand to impose a code that already exists to remedy a problem that does not. Perhaps that is why liberal icon Ruth Bader Ginsberg rejected an earlier proposal for an inspector general to keep an eye on the justices, likening it to “Stalinism,” and “a really scary idea” that “sounds…very much like [how] the Soviet Union was.”
Harris is an unrepentant far left authoritarian whose history of abusing her prosecutorial powers leaves no doubt about her commitment to eliminate opposition. Biden is controlled by the progressives who put him in office and then decided that he should leave. The end goal of their pseudo proposal is to force compliance from the Supreme Court. No better reason could exist for leaving untouched what has worked for nearly 240 years.
Kenin M. Spivak is founder and chairman of SMI Group LLC, an international consulting firm and investment bank. He is the author of fiction and non-fiction books and has served as a director and C-suite officer of public and private companies. Spivak has written for National Review, the National Association of Scholars, and Huffington Post. He was chairman of the Editorial Board of the Knowledge Exchange Business Encyclopedia, and a long-time director of the RAND Corporation Center for Corporate Ethics and Governance. He received his A.B., M.B.A., and J.D. from Columbia University.
