Why I never bought the Dem's "Scary Supreme Court" argument

One of the main arguments for "Vote Blue No Matter Who" was what fascist Trump was going to appoint to the Supreme Court, and opposed to a "good liberal" that Hillary would appoint.
I never bought that argument, and this NY Times article from today is just a small example of why.

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Justice Ruth Bader Ginsburg on Friday put a one-week hold on a lower court’s order for President Trump’s bank records to be turned over to Congress.

The stay issued by Justice Ginsburg came just three days after the United States Court of Appeals for the Second Circuit in New York said that Deutsche Bank and Capital One must cooperate with subpoenas of two Democratic-controlled committees in the House of Representatives.

Recall that this is the same woman that Democrats were praying for this past year.

Nowhere in American society has the Overton Window shifted further to the right than the Supreme Court.
Despite whatever the news media tells you, the right-wing media in particular, there are no leftists on the Supreme Court, and there haven't been for decades. Nor have there been any liberals.
As for the justices that Presidents Clinton and Obama appointed, it would be a stretch to even describe them as "centrists". What big difference has Sotomayor or Kagan made?
As for Garland , let's look at this.

In al Odah v. United States (2003), a panel that included Garland unanimously held that federal courts could not hear challenges from Guantanamo detainees.[

Anyone on the left that was hoping for the Supreme Court to protect them from the excesses of the right is deluding themselves.

I'm old enough to remember what an actual leftist on the Supreme Court looks like.
Their names were William J. Brennan Jr. and Thurgood Marshall, and they wouldn't even recognize today's Supreme Court.
To give you an idea of how far the Overton Window has shifted, this article is from 1986.

Six appointments by three Republican Presidents since 1969 have left Brennan and Marshall the only consistently liberal voices on an increasingly conservative Court. They are now a minority of two in finding the death penalty unconstitutional. They can often manage to cobble together enough votes to prevent the outright reversal of a liberal precedent—preserving affirmative action, the right to abortion and an arrested suspect’s right to an attorney during questioning, for instance—but they are swimming against a stiffening conservative current in the Court’s opinions.

A friend of mine asked a good question before 2016: "When was the last time the Supreme Court made a real difference, in a good way?"
All I could think of was Roe V Wade, and that was the early 70's.

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B&M

Brennan-and-Marshall. Their names are almost always spoken together. They generally vote together on major social issues. They dissent together and concur together. They often socialize as well, and in the past they have even chosen their law clerks together, often from the chambers of the same lower court judges who share their commitment to post-New Deal liberalism.

At the court, when lawyers count prospective votes, Brennan and Marshall are ranked as one. "We've at least got Brennan and Marshall," lawyers say. Or, "We're going to lose Brennan and Marshall."

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Raggedy Ann's picture

the American people continue to be scammed about everything that has to do with government. Our government is not a government, but an oligarchy and Ginsberg just proved it. Voting for the dimwitocrats does not guarantee squat. Period. Pleasantry

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“The trouble [with injustice] is that once you see it, you can’t unsee it. And once you’ve seen it, keeping quiet, saying nothing, becomes as political an act as speaking out. There is no innocence. Either way, you’re accountable.”
-- Arundhati Roy

TheOtherMaven's picture

@Raggedy Ann

The potential was there from the beginning, but that case brought it into full flower.

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There is no justice. There can be no peace.

Pluto's Republic's picture

...but I also understand why it is so compelling. It makes sense on the surface. And there are justices that groom their careers for a potential Supreme Court nomination. They keep their eye on the prize with every judgement they make, while working their professional and political networks. But who are they performing for? Their peers and the political elite are the audience they want to impress. For many years they will work inside or alongside a corrupt system of justice, watching unmoved as people's lives are broken or destroyed by the legal system's sharp angles and dead ends. They will never take up the cause or try to reform anything, because a justice works within the constraints of old laws and older traditions. Justices are selected. from risk-adverse mindsets that think inside the box. That may be how justice should be dispensed. But not with a lifetime appointment, and not with a partially-written, naive constitution that thinks a lifetime is 27 years shorter that it is. If only.

And on that note:

"When was the last time the Supreme Court made a real difference, in a good way?" All I could think of was Roe V Wade, and that was the early 70's.

.

That begs the question: When was the last time the Supreme Court made a real difference in disastrous way? So disastrous for the system of government — but so empowering to the wealthy elite that they can control the representatives you elect. Thus, a decision that can never be overturned?

Anyone?

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In any other country, Joe Biden and I would not be in the same party.
– Alexandria Ocasio-Cortez, 2020

@Pluto's Republic
That was the moment that lost the future and brought us everything that’s followed since.

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travelerxxx's picture

@Pluto's Republic

Bush v Gore is a good one, but I'm thinking of Citizens United v FCC. That one seems the very definition of "... lucrative to the super-wealthy who instantly own the legislators you vote for ..."

The Supreme Court is so bad that there's probably something even worse that I'm forgetting.

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a procedural decision, creating a whopping one-week delay, to allow a few more days for the proper appeal papers from both sides to be presented to the Court. This is not a vote by RBG on the merits of the underlying case. She is just ruling for a brief (until this Friday) stay of the 2d Circuit court ruling, and she is the Justice charged with overseeing emergency stay requests from that circuit.

Until the substantive Court ruling happens, it's all just premature off-to-the-races overkill about Ginsburg and the left-leaners on the Court -- as if they are in a majority position anyway to "make a big difference".

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@wokkamile to take a principled stand and draw sharp conclusions about left-leaners on the Court will be with the very important June Medical Services case re abortion that the Court has agreed to consider this term. This involves a very restrictive LA state law requiring all medical/abortion providers in the state to be within 30 mi of a hospital where they have admitting privileges.

This will be the first major abortion case reviewed by the Court with Trump-appointees Kavanaugh and Gorsuch on the bench. My guess is it will be a victory for the anti-abortion forces, and that the left-leaners will be in dissent. But let's wait and see.

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@wokkamile
I used a poor example.
But I stand by my larger point.

I examined her record more closely.
RBG is indeed liberal on social issues, but centrist on economic issues.
No wonder Dems love her.

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@gjohnsit @gjohnsit a president who's governed consistently as a liberal since the 60s. Carter (never got a Scotus nomination), Clinton and Obama all governed as moderates, so weren't likely to appoint a true liberal to the Court.

With one exception -- Clinton in his first year, before he went full centrist. He wanted to nominate Mario Cuomo in the early 90s when Byron White announced his retirement, and recall that Cuomo was about as liberal as they came in those days on most issues. But, typical of him, MC dithered for weeks and finally declined. The name of Bruce Babbitt, former gov of AZ, moderate-liberal, came up but was rejected. Senate Majority Leader Geo Mitchell was offered, but he didn't want the job. One or two liberal academics were considered.

Then someone came up with RBG, and Orrin Hatch, a key player on Judiciary, probably breathing a sigh of relief that Rs had avoided getting the more known liberal Cuomo who could have become a major influence on the Court, told Clinton that she would be acceptable to the R senators.

So, in my view, it does make a difference, so long as you can accept that you should not expect a 100% true liberal/progressive like Marshall, Brennan or Bill Douglas. This article from 538 which cites a Scotus study of court ideological leanings, points out that RBG is the 2d most liberal, or left-leaning Justice on the Court, with only Sotomayor to her left. And both of those justices are about as much to the left as the most RW Justice, Clarence Thomas, is to the right.

Notice also, in another graph, how the Court has been right-leaning most of the time since 1947, with the exception of the 60s and a few yrs during Obama. Also to consider is the fact that no Dem president has been able to nominate a Chief Justice of the Court in that 72-yr period. The one time a Dem president did have that chance, in 1968, LBJ blew it by selfishly nominating former personal lawyer Abe Fortas, already a sitting Justice, who had some ethical issues which destroyed his nomination. As a result, it was left to Nixon to nominate Burger as CJ.

This was actually the 2d time Lyndon made an awful decision re the Court -- the year before, he asked Kennedy-nominated Justice Goldberg to step down and take the UN Ambassador job -- with the loose, flattering promise of soon being picked to become the first Jewish VP in history, which Goldberg believed. Never happened of course. AG, a solid liberal and intellect and expert in labor law, would have been an excellent pick to be elevated to CJ.

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GreatLakeSailor's picture

A friend of mine asked a good question before 2016: "When was the last time the Supreme Court made a real difference, in a good way?"

Marriage Equality.

Of course that recognition of equality under the law cost no rich people money and threatened no powerful interests though it has given fundies more about which to complain.

That decision changed my life for the better.

Other than that, yeah.

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Compensated Spokes Model for Big Poor & Big Peace.

snoopydawg's picture

@GreatLakeSailor

The religious right has never liked that it was passed and they have a case that might reverse a lot of the things that came from it. I'll look for the article.

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America is a pathetic nation; a fascist state fueled by the greed, malice, and stupidity of her own people.
- strife delivery

snoopydawg's picture

@GreatLakeSailor

These Five Court Cases Could Change the Future of LGBT Rights

Pidgeon v. Turner

Even if Obergefell v. Hodges, the 2015 Supreme Court decision that legalized same-sex marriage nationwide, remains intact in the coming years, same-sex marriage will still be in play.

“Should this case—or one like it—make it back to the U.S. Supreme Court, we could see a ruling that allows states to limit or eliminate benefits for same-sex couples while still technically allowing same-sex marriage to remain legal.”

LGBT opponents have already been trying to dismantle marriage equality by arguing that same-sex married couples shouldn’t be entitled to the same benefits as people in opposite-sex marriages.

If that sounds like a ridiculous argument that won’t stand a chance in court, it’s apparently not. Two Texans have made it with relative success: In 2013, as the Dallas Morning News reported, two Houstonians—pastor Jack Pidgeon and accountant Larry Hicks—sued then-mayor Annise Parker over the provision of benefits to same-sex city employees, arguing that taxpayers shouldn’t have to pay for them.

Post-Obergefell, the Texas Supreme Court nonetheless decided that the landmark 2015 same-sex marriage ruling “did not address and resolve” the issue of benefits for same-sex couples—and then, in December 2017, SCOTUS declined to hear the city of Houston’s challenge to the Texas Supreme Court’s decision.

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America is a pathetic nation; a fascist state fueled by the greed, malice, and stupidity of her own people.
- strife delivery

GreatLakeSailor's picture

@snoopydawg

thanks for the links.

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Compensated Spokes Model for Big Poor & Big Peace.

jwa13's picture

... or "Buckley v Valeo" (1976), or ...

well, you get the picture. There have been A LOT more disastrous rulings from the Court, which have cemented the oligarchic status of the former Republic, than there have been affirmative rulings which have supported the rights and wellbeing of the hoi & the polloi -

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When Cicero had finished speaking, the people said “How well he spoke”.
When Demosthenes had finished speaking, the people said “Let us march”.

@jwa13 that of the 19 justices nominated and confirmed since 1969, 15 of them were from R presidents. No wonder we struggle to find landmark rulings in favor of the People and disadvantaged.

But it buttresses my view that which party is sitting in the WH does make a difference wrt the kind of decision making the Supreme Court creates.

Roe hangs by a thread due only to the fact there is now a conservative majority, all picked by R presidents. Citizens United -- decided 5-4 along strict ideological grounds -- is safe b/c of this majority situation, but could be in jeopardy (Buckley too) with a left-leaning majority which only a Dem president could produce.

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