Republished with permission from Lucian K. Truscott IV
It’s not just that so many of the court’s decisions have been manifest in finding ways to strip rights from citizens that previous courts have done their best to secure. It’s not the ham-handed, ignorant, nakedly political way they have done it. It’s not because two of the justices got on the court by yelling at Senators and in one case weeping as he told lies to get himself confirmed. It’s not even that the Chief Justice has set forth purposefully to permit the court he leads to become corrupted by bribery, outside political influence, and conflicts of interest.
It’s that the court has been transformed over my adult lifetime from democratic institution you looked up to, doing work for the nation that inspired you, into a small place doing small things for small purposes more concerned with petty grievances and enrichment of a few than the needs and aspirations of the many.
All the so-called conservatives on this court but one, Justice Thomas ironically, were appointed as part of a movement created with the sole purpose of politicizing the court in a direction that can only be described as anti-democratic. You will not find among the decisions of this court since the Federalist Society gained traction with the most anti-democratic president in our history, Donald Trump, a love for this nation, for its political traditions and norms, for the joys of life in a democracy, or for the court itself.
What you find instead is a political movement constricted by ambition, disrespect of other courts, including past Supreme Courts and lower courts, and a disrespect of history and intellectual rigor that found its nadir in a decision written by the Chief Justice that stripped Black Americans of protections for a right to vote they had shed blood to secure. Astonishingly, as if he were writing not a Supreme Court decision but his first essay as a 7th grader, Roberts wrote: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
The decision, in Shelby County v. Holder, ended certain protections of the right to vote for Black citizens in the Voting Rights Act. Within days of the decision, states in the South that made passage of the Voting Rights Act necessary by denying their Black citizens the right to vote, went right back to “discriminating on the basis of race” in their voting laws.
This terrible decision, and others just as bad such as Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, are what passes for precedent in the Roberts court. In the Dobbs decision, Justice Samuel Alito cited abortion-banning laws dating from the 1700’s and 1800’s, finding essentially that if we didn’t have laws allowing abortions generations ago, we shouldn’t have those laws now.
It would seem to be impossible to turn both progress and history on their heads simultaneously, but this court has figured out a way to establish upside down and backwards as a controlling legal theory.
But it is the smallness of the Republican justices on the court that is truly and astonishingly depressing. That they walk the earth on little bitty feet and manhandle the law with teeny tiny hands was established clearly last week in the hearing on Trump’s claim of absolute immunity from prosecution.
The Supreme Court did not have to take the case. The Court of Appeals for the District of Columbia had found Trump’s claim that he enjoys immunity from charges that he conspired to overturn the election of 2020 to be without merit in a unanimous decision by both Republican and Democratic appointed judges. The Supreme Court could have let that decision stand by refusing to hear the Trump appeal.
Instead, they took the case, and two of the so-called conservative justices summed up the attitude of the Roberts court succinctly, which is that the facts don’t matter, only politics does.
Justice Samuel Alito told the attorney representing Special Counsel Jack Smith, “I’m not discussing the particular facts of this case.” Justice Brett Kavanaugh expressed his disinterest in the same subject this way: “Like Justice Gorsuch, I’m not concerned with the here and now of this case, I’m concerned about the future.”
Which raises the obvious question: why did they agree to take the Trump appeal in the first place?
The answer to that question is the reason my heart is broken. This Supreme Court has shown itself again and again to be disinterested in the facts and the law and has reached the point that it now bluntly says so. The idea that the Constitution not only established a democracy but provided protections for it in the clear language of its text is less important to Roberts and his court than what outcomes they can fashion for the anti-democratic masters that put them there.
Even with the heart and intellect and dedication of the Democratic minority standing tall for us, I fear that by the time the Republican Party’s Gang of Six is finished, there will be no protections left in our founding document for the nation it was written to establish and support. It is as if we are Ukraine, and our Russia is within and wearing robes. The question we face in this election and every election from now on is this: will we allow them to tear it all down, or will we fight?
Lucian K. Truscott IV
Lucian K. Truscott IV, a graduate of West Point, has had a 50-year career as a journalist, novelist and screenwriter. He has covered stories such as Watergate, the Stonewall riots and wars in Lebanon, Iraq and Afghanistan. He is also the author of five bestselling novels and several unsuccessful motion pictures. He has three children, lives in rural Pennsylvania and spends his time Worrying About the State of Our Nation and madly scribbling in a so-far fruitless attempt to Make Things Better.
