Supreme Court: Welcome to Politics

[ukpumacat]

So I posted last week about a Supreme Court case that I had used in the past teaching Speech and Debate students. I believe this case was THE central case that threw the Supreme Court into a political entity. There were certainly cases before it that delved into it.
But this was the case that launched us into what we currently see at the Judiciary level.
And the case has all of the intrigue, political infighting and drama of a scripted thriller.

The case: Baker vs Carr.

In 1969, upon his retirement from the Supreme Court, Earl Warren was asked which case he ruled on in his history that he believed was the most important. And this case was his answer.

For those of you unfamiliar with it:

It was a district re-apportionment case from Tennessee. The simple summary was that Tennessee had not re-apportioned their districts since 1901. And therefore didn't reflect the changes that had taken place in the last 60 years. Mainly, that large pockets of people were now living in "the city" vs the rural/farm areas. Specifically to this case: Memphis. And the fact that in Memphis at the time, people who lived in Rural areas had a 23-1 power in their vote.
This was seen (by both sides) as a prominently racist issue. The vast majority of African Americans lived in the city. Whereas the farmlands were almost completely white.
There actually was very little debate on whether the plaintiff (an African American man who claimed his voting rights were being abused) was correct. Both sides of the aisle agreed he was. In fact, a conservative judge on the federal level called what TN was doing, "Evil".

The issue was that up until that time, the Supreme Court refused to rule in cases that were deemed "political". Of course, how you define that term varies greatly on which side of the aisle you find yourself. But as it pertains to the Supreme Court, both sides of the aisle had respected what they called the, "Political Question Doctrine". A doctrine that kept them out of political questions. They had recognized and followed this for 150 years.

You basically had one conservative justice and one liberal justice battling it out:
On the liberal side: Justice William Brennan. A man known as a womanizing neandrathal.
On the conservative side: Justice Felix Frankfurter. A man known for being an absolute a**hole. Both were known for this actually.

The court was evenly split at the time...4 justices known for being liberal. 4 known for being conservative (although this was not nearly as obvious back then. For instance, Earl Warren: a justice who is known as a liberal for his decisions. He was a republican governor and appointed by Dwight D Eisenhower).
And you had one man in the middle as the swing vote in this case: Justice Charles Whitaker (also appointed by Ike).

The defense argument in this case literally said, "We agree that the TN law is awful and needs to change". Their argument was that it just wasn't the right of the Supreme Court to change it. Up until then, that argument had worked.
The problem was that meant it was the TN legislature that needed to change it. And the Plaintiff argued that they had a bias and selfish reason for not: that they had been elected by the white farm workers and wouldn't be re-elected if it changed. So change was unlikely.

Frankfurter argued passionately that the court should stay out of what he called the "political thicket". That once they went down that road, they would never ever be able to go back. He believed they needed to respect the separate powers of the three branches of government. And that this was a legislative issue.
Brennan argued that Frankfurter was right. That this was a legislative issue. But that they had failed to do it and therefore it was violating someone's civil liberty and their right to vote. Which was a legal issue the court had and should address.

Whitaker was completely torn. He saw both sides. And the case broke him: literally.

At first, they postponed the decision because Whitaker couldn't decide. SO they re-heard the case when court re-opened in the Fall/Winter in October. But Whitaker still could not decide. He was overwhelmed by the plight of the African Americans he deemed as being disenfranchised. At the same time, he did not want to be responsible for the court becoming a political entity.

He eventually disappeared. Again, literally. He left Washington and went to a cabin in the woods in Wisconsin. The court once again postponed their vote and waited. And waited.
He spent weeks sitting by a lake in silence.
He eventually went back to Washington, and became suicidal. One of the justices convinced him to go to the hospital. He had a nervous breakdown and eventually retired from the court having never made a decision in the case.

During all of this, Brennan eventually convinced two of the conservative justices to vote with him. And the case was decided 6-2.

Two weeks later, Frankfurter had a stroke in his office. He never fully recovered. He blamed the case for "breaking him".

Two justices were broken by the case. Both retired. And John Kennedy replaced them with more liberal judges. And the "Warren Court" came to be.

Maybe the most remarkable thing about all of this: Ike, a Republican appointed the two "liberal" judges in the case. And FDR, a Democrat, had appointed Frankfurter. Frankfurter had helped write the New Deal. And yet, became one of the more conservative justices in US History.

There is more. A lot. But that gives the gist. The court has leaned left from 1962 on. But, Republican Presidents have appointed 13 Justices since 1969 (Nixon) and Democrats have only appointed 3.
Most scholars believe that even though Kavanaugh is a clear conservative, that Justice Roberts will become more of a centrist as Chief Justice (and has already shown a moderate viewpoint in rulings). The idea being that the more balanced the court is, the more it legitimizes it. Roberts (according to sources) is very afraid of it leaning too far in either direction because he (and many others before him) believes it illegitimizes the court and they will eventually lose power.
Time will tell. But there is a quick history lesson.

P.S. There is a fantastic podcast on the Supreme Court called, "More Perfect" for those that may not have heard of it. It is very un-biased Imo and gives great history. They have a wonderful episode on this case and many others.

[KeithKSR]

One never knows how a SCOTUS Justice can morph after the appointment. I also don't think left or right in nominations was as much of an issue prior to 1980.

Clinton and Obama each appointed two Justices. Clinton with Breyer and Ginsburg, Obama with Sotomayor and Kagan.

[ukpumacat]

Great article on where we stand now.

https://fivethirtyeight.com/features...supreme-court/

[Doc]

Great article on where we stand now.

https://fivethirtyeight.com/features...supreme-court/

Very good article.

I find it interesting that the left's, and Elana Kagen's, objection to Kavanaugh was that he was going to be "the swing vote". The article debunks that myth. His vote is no more or less valuable, or more of a "swing" vote than hers. The liberals have 2 justices (Ginsberg and Sotomayor) countered by the 2 conservatives on the court (Kavanaugh and Thomas). Ditto for the more moderate Breyer/Kagen vs Alito/Gorsuch. The previous "swing" vote was a left leaning Reagan appointee Kennedy. Now that swing vote is a right leaning Bush appointee Roberts. So in essences the court has gone from left leaning to right leaning. That is why the dems were so opposed to Kavanaugh, that and revenge for Garland. But its not like the court is now some Uber Conservative mouthpiece. Its a moderate swing of the pendulum. Plus, Elections have consequences. But the interesting thing to me is that the most moderate justices, the swing vote per say, have been Republican appointees. Those who are most likely to go the other way are GOP appointees, while the left typically nominates and gets less centrists. And the more farther conservatives have been literally crucified by the left whereas those far left have not ben similarly attacked by the right. Glad to see the GOP grow some hair on their balls....for a change.

[CitizenBBN]

It's a moderate shift, as it should be. The court never moves much in any direction, and does so slowly and carefully for the most part, to preserve that influence it wields.

These Justices have all read the constitution, and know that the power SCOTUS has is mostly based on the image of the court more than any specific authority, and they work to preserve that image and authority. That goes right to Pumas excellent discussion of Baker v Carr. The Court was torn not just by the question in front of them, but how the deciding of that question would influence the standing of the Court. The justices take that very seriously.

So this will be a moderate shift right, when at times like under Warren things have been at least that far left and perhaps farther (we don't really know yet where Kavanaugh or even Gorsuch will fall long term), and the Left is actively encouraging the lunatic fringe to literally bang on the doors of the Court shouting "Burn it down".

I have dismissed suncat's predictions of a coming schism, but I'm beginning to wonder. When the left reacts to this relatively normal movement in the political pendulum, one which has happened multiple times in our history in both directions, as if the world is ending and encouraging everything right up to the line of physical violence, I'm not sure we can avoid a more gruesome way of settling differences in the end. I find that hard to accept, but it's making me wonder.

[ukpumacat]

So this will be a moderate shift right, when at times like under Warren things have been at least that far left and perhaps farther (we don't really know yet where Kavanaugh or even Gorsuch will fall long term), and the Left is actively encouraging the lunatic fringe to literally bang on the doors of the Court shouting "Burn it down".

I have dismissed suncat's predictions of a coming schism, but I'm beginning to wonder. When the left reacts to this relatively normal movement in the political pendulum, one which has happened multiple times in our history in both directions, as if the world is ending and encouraging everything right up to the line of physical violence, I'm not sure we can avoid a more gruesome way of settling differences in the end. I find that hard to accept, but it's making me wonder.

I don't see that schism coming either. At least I certainly hope not.

Kavanaugh made one major mistake Imo, and that was pulling the "Clinton" card during his impassioned speech. I understood his anger and ranting. But, he should have let Lindsey Graham take care of the politicizing. He would have been confirmed just as well and would have stayed above the political fray.
Now that he is in, he will be a solid conservative for the court. And like most things, I expect the SCOTUS to be just fine and most of that to blow over. He will not be impeached.
As to the current court, I have a lot of respect for John Roberts. I think he has shown to be a very fair justice (even if he leans right). And I do think he will not allow the court to lose its influence under his reign by going too far to either extreme.

And to Doc's point...the "swing vote" has almost always been a Republican appointee that has moved left. This really isn't all that surprising honestly.
The case I referred to is a perfect example. You have a strong Republican who is standing on his conservative principles of not wanting the court to get into the political thicket.
But you have a swing voter who is battling that and the very personal nature of the case at hand. There was a real African American sitting there as the plaintiff. That is a very hard predicament to be in and it makes you understand why that swing voter might "drift left".
The "liberal" Warren court that moved "left" was almost entirely about civil liberty cases. Those are the most difficult for a swing voter because you often have principle vs principal. Meaning an ideology you believe in vs a very real and personal situation.
This next docket is pretty benign.
But I expect that with a moderately right leaning court, we will see some of these more divisive cases coming back to the fray as the article suggests.