In June, 1942, a student group emerged in Munich, Germany, led by a young woman, Sophie Scholl. It was called die Weisse Rosa (The White Rose). Through leaflets and graffiti these students called attention to Nazi crimes, particularly the persecution and murder of Jews. Within eight months the Gestapo had rounded up the group and set a trial date in the democratic-sounding People’s Court. Four days later, Sophie and other leaders were executed by guillotine.
I call attention to this incident in German history because, while the prosecutors described the crimes, judges ranted and pronounced sentence, none of the defendants were allowed to speak a word in court.
This is what happens in a country when judges have been appointed on a political basis — in that case, adherents to fascism — and make their decisions based on the wishes of the political group who appointed them.
In our two candidate debates much has been made of the possibility of a Democratic victory allowing what Republicans ironically call “packing” the Supreme Court. Objectively considered, Mitch McConnell’s denial of a hearing for President Obama’s 2016 nomination of Merrick Garland, coupled with his setting aside of all other pending legislation to ram through 200 lifetime federal judgeships and three justices to the Supreme Court is, by any definition, a “packing the courts.”
We know in advance these appointees will not be contemplative about the law. We know in advance how each will rule in a given case. Over time they have said so.
The poorly schooled head of conservative Judicial Watch, Tom Fitton, describes the prospect Democrats may respond to McConnell’s moves by adding judges to the Supreme Court “will destroy the Constitution.”
Countering his lie, Article 3 of that document states merely, “The judicial power of the United States shall be vested in the Supreme Court.” It is Congress that is empowered with the details. Our first Supreme Court had six judges and over time, that number has ranged from five to 10.
The term “packing’ has long been politically loaded by Republicans. With FDR’s New Deal legislation blocked by a conservative court, he proposed all justices over 70 retire. If they did not, he would ask Congress to increase their number to 15. None resigned but the Senate would not approve his request. Fitton was “off base” enough to assert that it is the Democrats who want to politicize the court in their favor.
Concluding that law schools and the legal profession are too liberal, Republicans in the Reagan era created the Federalist Society which, going forward, generated lists of the most conservative candidates they could find. Republican presidents select for judgeships only from this list, their criteria being what they term a candidate holding an “originalist ” or strict interpreter of what the words of the Constitution mean.
Bear in mind three things: that members of the demeaned version of the party of Lincoln currently holding the presidency and the Senate refuse to condemn white supremacist beliefs; that Trump defends statues honoring those who took up arms in rebellion against the United States as our heroes; and nearly all those men we term our Founders and authors of the Constitution owned slaves and approved of slavery.
These should be sufficient reasons to read the Constitution as a living document, one that can guide and sustain the people and evolve, as it has, over time. Originalism is a mask worn by those with special interests contrary to those of the people.
To provide one example, Roe v. Wade (a woman’s right to choose) was termed “settled law” by politically balanced courts and 75% of Americans support it. The pending, ideological court threatens to strike it down.
Whereas to rule, as our originalist-guided Supreme Court has done (most recently in District of Columbia v. Heller) the Second Amendment grants the right of men to threaten the Michigan Legislature as they did last May with their armed presence, a modern, public-supported reading of the amendment might prohibit such behavior, indeed ban private ownership of military-style weapons. Here, originalism ignores the fact the Second Amendment originated from slaveholder’s need for armed militias to prevent slave uprisings and escapes. Read it. The language is clear.
With control of Congress and presidency a near prospect, how shall Democrats plan to contend with 200 new lower and Supreme Court judges poised, as was FDR’s dilemma to overrule their every move — on voting rights and the undemocratic electoral college, money ruling politics, on health care or whatever?
Charlemont resident Carl Doerner is an author and historian currently at work on a re-examination of and challenge to the prevailing “American narrative.”