Democrats Rail against a Fictional Supreme Court

By Christian Schneider

Thursday, July 06, 2023

 

Last year, a Marquette University Law School poll asked people what they thought of the individual justices on the U.S. Supreme Court. Only three of the justices (Clarence Thomas, Sonia Sotomayor, and Brett Kavanaugh) were familiar enough such that at least 50 percent of respondents were “able to rate” them. Thirty-eight percent felt able to rate the top dog, Chief Justice John Roberts. Only 29 percent of respondents were able to rate Neil Gorsuch, with the numbers coming in at 28 percent for Elena Kagan and a paltry 26 percent for Samuel Alito. At this point, more people would probably guess Dylan Mulvaney was a member of the High Court.

 

But while most political observers would take those statistics as a reason to drink a tall glass of Wild Turkey, Democrats see ignorance as an opportunity. Why not take Americans’ empty brains and fill them with tales of a fictional Supreme Court led by right-wing extremists and corrupt Manchurian justices who exist only to do the bidding of big-money donors?

 

Granted, it is much easier to do battle with a Supreme Court that exists only in your head. Reading opinions takes a long time (yuck!) and requires formulating nuanced responses (ugh!).

 

But if the big-money donors are controlling conservatives, they are doing a bad job. If anything, the 2022–23 Supreme Court session saw a much more mixed bag of opinions than in past years. In fact, liberal justices Sotomayor and Ketanji Brown Jackson were more likely to be in the majority than conservative stalwarts like Thomas, Gorsuch, and Alito.

 

Over 47 percent of the Court’s cases were decided unanimously this term, up from only 28 percent in the previous term, suggesting more of an effort by liberals and conservatives to find consensus. Liberals actually found themselves in the majority in 64 percent of cases, much to the consternation of Republicans like Florida governor Ron DeSantis, who believed it was a sign of weakness in Donald Trump’s three appointees.

 

But never mind all that. Progressives, in full “it wasn’t over when the Germans bombed Pearl Harbor” mode, don’t let facts ruin a solid plotline. The liberal misinformation campaign plowed ahead last week as the final slate of rulings were handed down, with conservatives winning on all the big-ticket items.

 

That led progressive darling Alexandria Ocasio-Cortez to laughably decry an “undemocratic and, frankly, dangerous authoritarian expansion of power” by the Court, just as the Supremes overturned an effort by President Joe Biden to unilaterally “forgive” (read: have taxpayers pay for) over $400 billion in student loans without any action from Congress — a body that counts AOC as a member.

 

(AOC’s anger at the Supreme Court for suggesting she have a role, as the Constitution requires, in spending taxpayer money has led her to advocate expanding the number of Supreme Court justices — just to make sure she doesn’t have to be bothered with how to fund student-loan relief.)

 

“Fine,” you may say (hopefully out loud while at your child’s baptism), “but AOC-bashing is a bit too easy.” Well, even the “serious” Democrats have gladly dived into the buffoonery.

 

Take Connecticut senator Chris Murphy. He took to Twitter to condemn a case in which the Court sided with a Colorado-based web designer who feared the state would compel her to create sites for gay weddings, which, as a Christian, she said would violate her conscience.

 

“The Supreme Court is now just a 9 person legislature,” wrote Murphy, “slinging takes and making law with cases that are basically made up by friendly right wing groups in order to get the new law they want from their 6 buddies on the court.”

 

Murphy’s tweet wasn’t just an affront to the AP Stylebook (which would have had him spell out “six” and “nine” and hyphenate — oh never mind), it also contradicted . . . Chris Murphy.

 

When the Court overturned Roe v. Wade last year, Murphy had the opposite take, saying a “group of unelected politicians masquerading as justices just eliminated a constitutional right that generations of women have known and relied on.”

 

So, depending on how Chris Murphy feels on any given issue, the Court is corrupt either because it is made up of justices acting like legislators or because it is made up of legislators acting like justices. Denigrating the Supreme Court — it’s both a floor wax and a dessert topping!

 

None of this is new, of course. The public’s misunderstanding of the Supreme Court’s proper role is largely due to misinformation peddled by elected officials themselves. For decades, progressives begged the Court to act more like a legislature. This is why, instead of sleepy, pro forma affairs, the typical judicial-nomination hearing became as action-packed as a Fast and Furious movie (with inferior acting).

 

Remember when Democratic Hawaii senator Mazie Hirono told nominee Amy Coney Barrett that she believed Trump had picked her because he wanted her to be the “deciding vote to take health care away from millions of people”? Or when multiple Democratic senators claimed the choice of Barrett amounted to “Court packing?”

 

Or when a number of senators honestly believed, with no evidence, that Brett Kavanaugh was a gang-rapist? Because of that egregious farce, the Senate’s official record is now soiled by an account of a Supreme Court nominee explaining that the “Devil’s Triangle” is a drinking game and not some sort of sexual act. (The initial suspicion of the term was brought forth by disgraced attorney Michael Avenatti, who now offers his high-school-threesome expertise from a federal prison.)

 

What’s new is the tsunami of investigative reports from liberal-friendly outlets like ProPublica that purport to show an unprecedented amount of corruption by conservative justices. Earlier this year, the outlet exhumed supposedly scandalous information that Justice Clarence Thomas had accepted luxury trips from wealthy friend Harlan Crow (who, though one knows otherwise, must be a Tom Wolfe character) without disclosing them. The only problem? Thomas was cleared of any wrongdoing over a decade ago, had followed the rules for justices at the time, and had no reason to think Crow had any business before the Court. (It turns out he had a very tangential relationship to one 2005 case.)

 

But the hits didn’t stop there. Politico also published a ridiculous piece on Neil Gorsuch claiming that a run-of-the-mill real-estate deal violated Supreme Court rules because, although he disclosed the transaction on his ethics forms, he did not name the purchaser of the property. But he was not required to, as the land was sold by a limited-liability company with which Gorsuch was a partner, and he was only a 20 percent shareholder in the LLC that ended up selling the property.

 

And then, of course, ProPublica roared back with a hit job on Justice Samuel Alito for allegedly violating rules that both didn’t exist then and that Alito couldn’t have known he was violating. ProPublica’s charges stemmed from a 2008 Alaskan fishing trip Alito took using a plane owned by billionaire Paul Singer. But at the time, the Court counseled Alito that “personal hospitality trips” were not reportable, and Alito says his staff couldn’t come up with any business Singer had before the Court.

 

Next ProPublica piece: “I am a bear who had a salmon stolen from me by Samuel Alito on his fishing trip.”

 

These phony scandals are part of the reason the American public has such a low opinion of the Supreme Court. According to Gallup, only 25 percent of American citizens say they have confidence in the Supreme Court, down from 36 percent in 2021. Those on the left saw that the American public had no opinion of Samuel Alito, and wanted to make sure the first impression they had was negative. So . . . good job, liberals?

 

Of course, it’s not just the press but elected Democrats who continue to tell whatever story about the Court they believe to be politically expedient. Take President Biden’s statement on the student-loan case, in which the Court rejected his attempt to “cancel” student debt. Biden said “Republican elected officials and special interests stepped in” to kill the plan, “literally snatching from the hands of millions of Americans thousands of dollars in student debt relief that was about to change their lives.”

 

But it wasn’t “Republican elected officials” that killed his plan, it was the Supreme Court, members of which have read the United States Constitution. In fact, Biden’s plan was cynically crafted to eliminate Republican elected officials from having a say at all. It was a power grab by Biden himself to circumvent Congress and a promise to an important voting demographic that he would make it rain on their bank accounts, allowing him to step back and blame the Supreme Court when they obviously found the plan ludicrous. The only shocking part of the opinion is that three justices actually believed the plan was constitutional.

 

In fact, Biden’s description of the case itself was so obtuse, it wouldn’t be all that surprising if, after making the remarks, he became a suspect in the discovery of cocaine in the White House.

 

Even if one reads the opinions and dissents themselves, it won’t clear up much of the confusion over what the cases were about. In Justice Ketanji Brown Jackson’s dissent arguing in favor of affirmative action in college admissions, she mentions the word “Asian” only three times, each time in passing. Jackson’s dissent reads like a 26-page op-ed, but it never touches the central theme of the case: whether universities can bar admission to students of Asian descent based solely on that fact.

 

Not to be outdone, budding stand-up comedian Elena Kagan called the Court’s rejection of Biden’s preposterous student-loan “forgiveness” program “a danger to a democratic order.” She argued that overturning the plan, which was concocted and decreed only after passing through the cobwebs of Biden’s brain, was “no proper role for a court” and complained that, in the majority’s ruling, the “Court becomes the arbiter — indeed, the maker — of national policy.” (Of course, in the early days of the Biden administration, both the president and then-speaker of the House Nancy Pelosi plainly stated he had no authority to enact the plan he eventually did.)

 

All the fallout from last week’s big cases highlighted the Democratic playbook: Don’t argue against what the opinion actually says, argue against what you want people to think it says. The media are going to get it wrong quite often, and regular people busy with their everyday lives aren’t going to take time to read the opinions, so let ’er rip. And with that, America becomes just a bit more misinformed.

 

So now, liberals denigrate the Supreme Court, then point to the Court’s low approval rating as a reason its rulings are unjust. For decades, Democrats have imagined a wholly unrealistic role for the Supreme Court and its powers. Now they have graduated to creating an altogether fictional Court.