14 November 22
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The pretense of nonpartisanship should be well and truly shattered for everyone.
Anyway, in 1800, after a brutal campaign in which a bunch of founders who’d sworn up and down that they hated political parties spent more than a year eating each other’s entrails for lunch, the presidency changed hands from Federalist John Adams to Democratic-Republican Thomas Jefferson. Jefferson became president through a vote in the House of Representatives that turned when, in order to foil the ambitions of Aaron Burr, Alexander Hamilton jumped ship to Jefferson on the House’s 36th ballot and brought some Federalists along with him. Cue the chorus.
Ill feelings still abounded. I mean, nobody paraded through the Capitol with antlers on his head, but the Federalists had their revenge by passing the Judiciary Act of 1789, which established the lower federal courts, which Washington was happy to stack with Federalists who had lifetime appointments. One of these, of course, was Chase, who behaved at all times on the bench like the election never happened; among other things, he threatened printers friendly to the new administration. Fed up, President Jefferson got his allies in the House to pass a bill of impeachment against Chase.
According to the bill of indictment, Chase had “behaved in an arbitrary, oppressive, and unjust way by announcing his legal interpretation on the law of treason before defense counsel had been heard[…]tending to prostitute the high judicial character with which he was invested, to the low purpose of an electioneering partizan.”
Presiding over the trial in the Senate in 1804 was Vice President Burr, whom authorities in New Jersey were at the time investigating for killing Hamilton and who was already a lame duck, having been replaced after the election that year. A New Hampshire senator noted the irony of “a Judge, of the Supreme Court of the United States — arraigned before a Court, the president of whom is a fugitive from Justice — … stands indicted as a MURDERER!”
(For what it’s worth, Burr was cited by both sides for having run a fair proceeding. Upon the end of the trial, Burr gave a memorable farewell address in which he appealed to the Senate to remain “a sanctuary; a citadel of law, of order, and of liberty; and it is here — it is here, in this exalted refuge; here, if anywhere, will resistance be made to the storms of political phrenzy and the silent arts of corruption; and if the Constitution be destined ever to perish by the sacrilegious hands of the demagogue or the usurper, which God avert, its expiring agonies will be witnessed on this floor.”)
Chase, ultimately, was acquitted of all charges and served on the court until his death in 1811. But an underground river of political partisanship continued to course beneath the Supreme Court (no matter how hard generations of justices have worked to ignore or deny it). But it wasn’t until 1901 that anyone was able to describe it in a way anyone could understand. That year, the Supreme Court issued rulings in what came to be known as “The Insular Cases,” odious, racist opinions that ruled that the people living in the territories acquired in the Spanish-American War were not entitled to full citizenship. Essentially, it ruled that, propaganda aside, the Constitution did not follow the flag. Which drew the attention of Chicago journalist Finley Peter Dunne, who used his creation, “Mr. Dooley,” to immortalize the political side of the Supreme Court that all the justices conspired to bury:
No matther whether th' constitution follows th' flag or not, th' Supreme Court follows th' iliction returns.
If the hoary old pretense of non-partisanship at the Supreme Court were actually true, then this kind of thing wouldn’t happen: This week, the Federalist Society, the legal terrarium that has produced the carefully engineered conservative majority on the Supreme Court, as well as all manner of exotic fauna at the lower levels of the federal judiciary, held its annual gala hootenanny in Washington. From Reuters:
U.S. Supreme Court Justices Samuel Alito and Amy Coney Barrett received standing ovations from members of the conservative Federalist Society on Thursday at its first annual convention since the court overturned a nationwide right to abortion. Justices Brett Kavanaugh and Neil Gorsuch also received applause at the event of the legal group, which is one of the most influential in the country and whose members have long criticized the 1973 Roe v Wade decision that the court overturned in June.
The loudest applause at the event in Washington, D.C. may have been not for the justices but for Alito's opinion in the June ruling. Other conservative members of the court backed the ruling. Alito did not mention the ruling or other aspects of the court's work during his brief remarks. But Stephen Markman, a former justice on the Michigan Supreme Court, said that if the ruling were forever associated with Alito, "I do not know of any decision on any court by any judge of which that judge could be more proud.” The comments were met by a standing ovation, with attendees turning to face toward Alito. Barrett also briefly spoke at the event, largely honoring the late Judge Laurence Silberman, who served on D.C.'s federal appeals court and died last month. As she took the stage, Barrett said: "It's really nice to have a lot of noise made not by protesters outside of my house.”
It was a celebration of conservative partisanship by the coddled products of a lushly financed campaign to render the federal judiciary a weapon with several purposes: to roll back the legal gains made by minorities; to enforce a plutocratic and theocratic order in the law; and frankly—mainly—to Own The Libs.
At another moment of the gathering, Judge William Pryor, chief judge of the 11th U.S. Circuit, went out of his way to ridicule legal journalists with whom he disagreed (including Dahlia Lithwick and Mark Joseph Stern of Slate), as well as Sen. Sheldon Whitehouse (D-R.I.), who has dedicated a good portion of the past two years to tracing the dark money network that finances groups like the Federalist Society and the judges that emerge from it, linking that money to a lot of the conservative policy projects that judges have protected in a way that would have made Samuel Chase glow with pride.
Two things are different now from the days when Chase was on trial, and even from the days when Mr. Dooley shrewdly sized up the situation. First, unlike justices of the past, these new judges do not seem to feel free to evolve, which is part of the reason they have lifetime gigs in the first place. President Dwight Eisenhower thought he was getting a reliable voice for the status quo when he appointed Earl Warren to be Chief Justice of the Supreme Court in 1953. Needless to say, Ike called that shot a little early. This doesn’t happen any more. Except for Gorsuch’s stand on Native American issues, the conservatives on the present court are as predictable as the tides.
The second, more corrosive difference is that these conservative judges aren’t even pretending they aren’t political animals anymore. Soaking up the cheers at a Federalist Society meeting marks you as a partisan. (At the end of his rocky confirmation process, Kavanaugh was feted by the society at Union Station in D.C. Opponents responded by setting up a Jumbotron across the street on which they played the testimony of Christine Blasey Ford on an endless loop as people walked into the party. This was bone politics at its most obvious.) Giving a speech like Pryor did marks you as a partisan. Nobody is spending a dime of dark money on camouflage anymore.
The Supreme Court has a savage credibility problem right now. Its approval rating never has been lower, and its trustworthiness is scraping bottom as well. (There is lively talk about expanding its membership, though there’s no credible path to do so at the moment.) And the conservative majority on the court could care less about whether people approve of it or even trust it very much.
The Constitution may follow the flag—to paraphrase Mr. Dooley— but the Supreme Court follows the money.
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