The Roiling of the Supreme Court — Looking Back and Forward

Impeach Chief Justice Earl Warren

Earl Warren is now regarded as one of the great Supreme Court leaders of the twentieth century. He was not a shrewd constitutional lawyer, but he was a politician who could straddle both sides of the fence and find a compromise, or lead through the power of persuasion. He was the last elected politician to serve on the court.

Earl Warren ran in both Democratic and Republican primaries for the nomination for Governor of California. He served three terms as governor, positioning himself as a nonpartisan who could work with both parties. The electorate liked and rewarded him. He got things done.

He got things done at the Supreme Court, too, steering the court to unanimous decisions over such contentious issues as the integration of schools. The Supreme Court expanded individual liberties. Warren’s understanding of the Constitution was how it should be interpreted for today’s issues.

This understanding is markedly different from the idea of the originalist reading of the Constitution, which was what did the founders mean in 1787. The originalist reading is a strategy promoted by Judge Antonin Scalia and cited by several recent appointees.

Impeach Earl Warren.

The billboards were erected along prairie highways in the Midwest and were common in the South.

I asked my father what the sign meant. I was probably eight or ten and it was the early 60s. He explained what “Impeach” meant and then explained that Earl Warren was the Chief Justice of the Supreme Court. Although Earl Warren had been appointed by a Republican, President Eisenhower, he had presided over a court that expanded civil rights and individual liberties. The John Birch Society, an early hard-right political group, opposed Earl Warren’s court and decisions and had erected the billboards.

The liberal/moderate court lived from 1951 until 2020, through different iterations. Although the majority of justices were appointed by Republican presidents, there were often moderate judges in the mix, and judges who could provide swing votes, such as Sandra Day O’Connor. Remember the many discussions about getting to a 5–4 decision?

We now are in a time of conservative, originalist interpretation, and decisions, Per many analysts, we are in an era of the most conservative court since the 1930s. This conservative court may last the next thirty years. Unexpected turnover or shifting of decision-making on the part of some justices to a more centrist understanding are improbabilities.

We don’t know. President George H.W. Bush appointed both David Souter and Clarence Thomas. Neither, I bet, met his original expectations.

I get concerned when I hear the word impeachment bandied about loosely. The impeachment of Bill Clinton was political, not constitutionally motivated. The time and attention the process took hurt us all. Current calls for the impeachment of various officials or justices have been politically more than constitutionally motivated.

(Impeachment hearings for Donald Trump relied on reigning in the authoritarian impulses of a President who was willing to ignore the rule of law. I do not count those recent attempts in my statement.)

The reactivity of the left to the current batch of decisions, overturning Roe v. Wade the most prominent, is problematic. We will be living with this court for a long time.

Everyone needs to understand and play the long game.

The Court appointments lately have been long-lasting appointments. Supreme Court justices are living longer as is the general population, and working long into their terms. The Court, because of that, often lags behind the current cultural or political moment. The liberalism and outlook of the Warren Court outlasted its Chief Justice.

The realities of a conservative court may also force us to look at having a functional legislative branch, a Congress that works and passes legislation. For a very long time, the left took the fallback position that the Courts could correct the problem. This solution may go back to the Brown vs. Board of Education decision that set off the Civil Rights Movement, and the focus on rights which followed.

The left also viewed the Supreme Court as if it were the moral arbiter of power and decision-making. I grew up believing that was the position of the Supreme Court.

I am at fault. I viewed this progressive march as inevitable. Brown Vs. Board of Education is as sacred as if it had been handed down on stone tablets.

The Court decisions are not sacrosanct. They can be reversed, whether or not we agree with reversing them, as Roe v. Wade and Dobbs v. Women’s Health Organization have shown. They can be tightened or expanded.

Focus on the legislative branch may be the new and old mandate of democracy.

The presidency has been fraught, and the Supreme Court has moved away from its recent traditions.

Whatever big tactics or procedural changes we make –-in legislation or other political action — we must understand that both sides will live with those changes, and the changes may work both ways. These tactical discussions include eliminating the filibuster.

The most successful tactics of the rights era were adopted and adapted by the other end of the political continuum. The activist court of the 1950s and 60s has become the activist court of the 2020s.

While the conservative nature of the court will be with us for a while, the presidential elections and congressional elections will be in play. We also know the math of the electoral college, and in a backward way — by trying to prove the fraud of the election processes — the Trump challenge and the Big Lie ought to assure us of the amazing accountability of our election process.

An emotionally moving facet of the hearings has been the commitment of election officials, from clerical workers to Attorneys General, to a proper election process that safeguards this part of the democratic process.

The roiling nature of day-to-day disappointments and successes is difficult in an individual life or the civic life of a nation. The advantage of an individual with a memory of more than fifty years is the ability to take the long view. Impatience may demand marching in the street with placards, but then it is time to sit down and look dispassionately at values, tactics, outcomes, and strategies.

I would advise this as an opportunity for all of us who might be angry for a couple of dozen different reasons.

Passion is not enough. Reason, evidence, strategies, outcomes…those are the prize.

We also must acknowledge we are fatigued from the fire hose of the Trump years, the Covid pandemic, climate change news, and wringing of hands. We are personally impacted. I evacuated twice in the last two years due to new climate threats. The wildfires, and smoke-filled, unhealthy air while living with Covid protocols were new.

Like many, I see this backlash as a response to the high of the Obama years, the advancement of the rights agenda, and the coming “majority-minority.” I remember getting off a plane after Obama was inaugurated to meet an acquaintance whose first words to me were “What do you think of having an n** in the White House?” I was stunned but recognized she was just more forward than many.

I may not live long enough to see the reversal if this conservative court has a thirty-year horizon. But the demographic changes and other cultural imperatives won’t pause for thirty years.

It will be an interesting ride. It’s not time to be depressed, it is time to figure out the new rules of the game. We keep learning about assumptions we didn’t know were assumptions. I used to tell my kids “you can fill sad and angry and sulk about this for 24 hours — but then we need to figure out what’s next.”

I may not live long enough to see the Court’s conservative reversal if it is a thirty-year horizon. But these are, as the old curse goes, interesting times.