Posted by: David Offutt | December 26, 2008

Why Did We Have a Reactionary U.S. Supreme Court?

image2014Because the Bush-Cheney administration’s appointments and policies reflected almost solely the positions of the extreme right, the media incorrectly described the administration as “radical.” We probably should get our terminology correct since that President and his Republican Senate determined the direction of our Supreme Court – and our country – for the next generation or two. The correct classification of the Bush-Cheney Republican Party is “reactionary,” and they created a Supreme Court that will be likewise.

The terms for the various ideologies in the political spectrum largely derive from the French Revolution, and, very briefly, here are some generalized descriptions:

1. RADICALS (Extreme Left) – Completely replace the old system for something completely new

2. LIBERALS (Just Left of Center) – Make some changes using new methods, but keeping only those that work

3. MODERATES (Center) – Keep things pretty much as they are and decide between the suggestions of liberals and conservatives

4. CONSERVATIVES (Just Right of Center) – Use only tried and tested methods that have been considered successful in the past

5. REACTIONARIES (Extreme Right) – Undo changes and return to the “Good Old Days”

Historically, there have been so few extremists on the left or right in the U. S. and their viewpoints are so alien to what our country has been all about, they have not been represented on the Supreme Court. That is – until the Reagan, Bush I, and Bush II eras. Dwight Eisenhower even infuriated his own Republican Party by expressing the idea that the Court should be evenly divided and should represent each third of Americans who were liberals, moderates, or conservatives. Most decisions are generally made with large majority votes.  However, on controversial issues that may be decided by a 5 to 4 vote, it should be necessary for one side – either conservative or liberal – to persuade at least two moderate justices to join them to reach a fair and reasonable verdict.

Hopefully, the following will provide some idea as to what Eisenhower meant by a balanced U. S. Supreme Court:

1. RADICALS: None

2. LIBERALS: (1) William Brennan 1956-1990, (2) William O. Douglas 1939-1975, and (3) Thurgood Marshall 1967-1991

3. MODERATES: (1) Stephen Breyer 1994-?, (2) Lewis Powell 1972-1987, and (3) David Souter 1990-2009

4. CONSERVATIVES: (1) Warren Burger 1969-1986, (2) Anthony Kennedy 1988-?, and (3) Sandra Day O’Conner 1981-2006

5. REACTIONARIES: None

The Neo-Cons, the “Haves and Have-Mores,” and the religious political extremists are the reactionaries who have taken over control of the national Republican Party. In the Bush-Cheney era, they dominated the executive and legislative branches of our government, and they got dangerously close to doing the same with the judicial branch. They hoped to get enough extreme right-wing judges on the federal courts to gain consistent rulings in favor of corporate interests and a concentration of power in the executive branch.

It’s not just the Gilded Age – the last part of the 19th century – they want to return to. That was the time before national parks, monuments, wildlife refuges, and forests got in the way of commercial development; before labor unions made possible a vast middle class, which took away a small portion of profits from the very wealthy; before income taxes; before there were pure food and drug laws to protect the consumer; and before Social Security provided a social safety net.

Actually, they are also reacting against just about everything that has happened since the death of John F. Kennedy in November 1963. The list is virtually endless: Medicare for retirees, Medicaid for the needy, integration of the schools, civil rights, gay rights, women’s rights (which includes Roe v. Wade), rights of the disabled, the Environmental Protection Agency, the reapportionment resulting from the “one man – one vote” ruling requiring House districts to be of equal populations, the War  Powers Resolution  (to limit presidential wars –because of Nixon), and the Foreign Intelligence Surveillance Act (to limit presidential domestic spying – because of Nixon).

There is not one of the above cultural, social, and political changes the reactionaries would not get rid of without hesitation – if they were able! As diverse as the above changes are, there are probably two things that have upset these reactionaries and have united them more than anything else: (1) The Anti-Vietnam War Movement that gave us the Hippies and (2) the Senate Watergate Hearings which prevented Richard Nixon from establishing an imperial presidency. They have been able to get elected to national offices by appealing to voters who might agree with them on only one issue. They rally their voting base with “God, Guns, and Gays.” The courts have been the primary obstacle to their achieving their goals, but with a 5 to 4 right-wing majority on the Supreme Court they might can bring the plutocracy to full power.

Though one can quibble over degrees or leanings, here is basically how the U. S. Supreme Court stacks up today – with the death of Antonin Scalia in March 2016, the court is essentially tied 4 to 4:

1. RADICALS: None

2. LIBERALS: None

3. MODERATES: (1) Stephen Breyer, (2) Ruth Bader Ginsberg, (3) Sonia Sotomayor , (4) Elena Kagan

4. CONSERVATIVES: (1) Anthony Kennedy

5. REACTIONARIES: (1) John Roberts, (2) Clarence Thomas (3) Samuel Alito

The true liberals are long gone. The four conservative and reactionary justices were appointed by Republican presidents. Democrat Bill Clinton’s appointments of Breyer and Ginsberg disappointed most liberals. However, Clinton had to deal with an extremely hostile Republican Senate, and the judiciary committee was headed by Orrin Hatch, an extreme right-winger. When Sen. Hatch suggested that those two left-leaning moderates could be easily approved, Clinton agreed. Democrat Barack Obama appointed two more moderates to the Court: Sotomayor and Kagan. Obama has had to contend with Senate Republicans who are more hostile than those Clinton had to deal with.  Most pundits refer to the four moderates on the Court as liberals, but that’s because they are so far to the left of the three extremists. Essentially, with no liberals on the Court, one out of every three American citizens has no one representing his or her viewpoint on the Court.

On his first appointment to the Supreme Court, George W. Bush replaced the late reactionary Chief Justice William Rehnquist with John Roberts, who is expected to be as equally reactionary, if not more so. Time will tell. To replace the retiring Justice Sandra Day O’Conner, Bush 43 attempted an unknown stealth nominee that would likely be an extreme right-wing lackey, Harriet Miers. His father, Bush 41,  had done it successfully with the unknown Clarence Thomas. This time, the right-wing extremists who dominated the Senate would have none of it. They wanted a certifiable reactionary who had a track record that would assure them he could be trusted to do their bidding. Therefore, Mr. Bush gave them what they wanted with Samuel Alito.

Consequently, Justice Anthony Kennedy became  possibly the most important person on the court. With the reactionary Scalia on the court, Kennedy was the deciding vote on 5 to 4 decisions. Without Scalia, he is still the determining vote. The three justices on the extreme right will expect him to join them in trying to turn the clock back. The four in the middle will hope he join them. If Kennedy joins the moderates, decisions can be made with a 5 to 3 vote. If he joins the reactionaries, lower court rulings will be allowed to stand with a 4 to 4 tie. And as the Anthony Kennedy Court goes, so goes our nation.

by David Offutt
This is a revised and updated version (April 9, 2016) of an essay that was originally published January 6, 2006, in the El Dorado News-Times as a letter to the editor.

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Responses

  1. Very well done, David. I can’t find fault with a single thing you said here, and you know I tried.

    I’m so old, I can remember when we looked up to the Supreme Court with reverence. Not now ! ! !


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