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Why Neil Gorsuch Should Be Impeached - Political Judges, The Supreme Court And Democracy

File:United states supreme court building.png
United States Supreme Court (by Jeff Kubina, via Wikimedia Commons)

In August 1971, shortly before accepting Richard Nixon's nomination to the Supreme Court, Lewis Powell wrote a confidential memorandum to the US Chamber of Commerce. In the document, Powell argued that the American system of free enterprise was under attack by leftist groups, and he envisioned a strategy to fight back against those forces that were, in his view, anti-business.

"[B]usinessmen have not been trained or equipped to conduct guerrilla warfare with those who propagandize against the system, seeking insidiously and constantly to sabotage it," Powell wrote. He praised business executives for having performed "very well indeed" the role "to manage, to produce, to sell, to create jobs, to make profits, to improve the standard of living, to be community leaders, to serve on charitable and educational boards, and generally to be good citizens." However, he argued that they had "little stomach for hard-nose contest with their critics, and little skill in effective intellectual and philosophical debate."

Powell believed that entrepreneurs needed to launch a coordinated campaign to shape public opinion and policy. He argued that the Chamber of Commerce should help create a new pro-business narrative through academia and the media.

"The Chamber should consider establishing a staff of highly qualified scholars in the social sciences who do believe in the system," he wrote. "It should include several of national reputation whose authorship would be widely respected — even when disagreed with."

Powell thought it essential "to establish the staffs of eminent scholars, writers and speakers, who will do the thinking, the analysis, the writing and the speaking" and "to have staff personnel who are thoroughly familiar with the media, and how most effectively to communicate with the public."

Through media presence, paid advertisement, the organization of scholars and think tanks, Powell sought to shift public opinion towards views that were favourable to free enterprise and hostile to government intervention.

"[A]s every business executive knows," he wrote, "few elements of American society today have as little influence in government as the American businessman, the corporation, or even the millions of corporate stockholders. If one doubts this, let him undertake the role of lobbyist for the business point of view before Congressional committees. The same situation obtains in the legislative halls of most states and major cities. One does not exaggerate to say that, in terms of political influence with respect to the course of legislation and government action, the American business executive is truly the 'forgotten man.'"

As David Harvey explained in his book A Brief History of Neoliberalism, it is not possible to know the direct impact of the Powell memorandum. But it is a fact that shortly after it was written the US Chamber of Commerce embarked on a large-scale campaign to influence public opinion and policy.

In 1972 the Business Roundtable, an organization of CEOs, was founded. The corporations that formed it accounted for about one half of the GNP of the United States during the 1970s, and they spent nearly $900 million a year to propagate their pro-business ideas. Think-tanks, such as the Heritage Foundation, the Hoover Institute, the Center for the Study of American Business, and the American Enterprise Institute, were set up with corporate backing to attack liberal views, construct arguments in support of neoliberal policies, and to prepare studies and analyses echoing their principles (David Harvey, A Brief History of Neoliberalism, pp. 43-44).

That was not the first time that judges were involved in the promotion of an ideology of free enterprise and opposition to government intervention in matters of economic and social policy.

Throughout its history the Supreme Court, despite portraying itself as being above politics, has indeed endorsed and continues to endorse political ideologies regarding the economy, government policies, race, and public morals.

In 1857 the Supreme Court decided in the infamous Dred Scott case that African-Americans were not citizens of the United States, and that Congress had no power to abolish slavery in the territories (Eric J. Segall, Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices Are Not Judges, 2012, p. 21).

The central question of the case was whether slavery should be allowed in the West. According to the Compromise of 1850, residents of newly created territories could decide by vote on the slavery issue. But the attempt to apply the principle of popular sovereignty in Kansas in 1854 led to violent clashes among the population. The Supreme Court was then asked to settle the issue.

In 1846 Dred Scott had sued for his freedom. He argued that after having lived in two free states, Illinois and Wisconsin, he should not revert to the status of slave after moving to Missouri, a slave-owning state. Six of the nine Supreme Court justices were pro-slavery. As a result, the Court decided that Scott lacked the standing to sue.

On March 6, 1857, Chief Justice Roger B. Taney issued the majority decision. He wrote:

"The question is simply this: can a negro whose ancestors were imported into this country and sold as slaves become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen, one of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution?"

Taney concluded that he could not:

"We think they [African-Americans] are not, and that they are not included, and were not intended to be included, under the word 'citizens' in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them."

Over the course of the following decades, Supreme Court justices continued to make decisions based on personal ideological views. In Ideas Are Weapons (1939) Max Lerner argued that with the development of capitalism the Supreme Court had become the linchpin of a laissez-faire approach to economics and social policy:

"Capitalist enterprise in America generated, as capitalism has everywhere generated, forces in government and in the underlying classes hostile to capitalistic expansion and bent upon curbing it: it became the function of the Court to check those forces and to lay down the lines of economic orthodoxy ... The steady growth in the judicial power and the increasing evidences of its economic affiliations have made the Court one of the great American ogres, part of the demonology of liberal and radical thought" (quoted in: Alfred Haines Cope and Fred Krinsky, eds., Franklin D. Roosevelt and the Supreme Court, 1952, p. 42).

Max Lerner's point is fundamental in trying to understand how a small group of judges has endorsed an ideological notion of capitalism, thus imposing on policy-makers, workers and businesses their own vision of America. 

In 1916, Congress passed the Keating-Owen Act regulating child labour throughout the United States. Due to the lack of child labour laws in some states, or the lack of enforcement thereof in those which had them, many children worked long hours for extremely low wages, often under dangerous conditions.

Congress passed its child labour law under the authority granted to it by the Commerce Clause (Article, I, Section 8, Clause 3) of the US Constitution, which states that Congress shall have the power to "regulate commerce with foreign nations, and among the several states, and with the Indian tribes."

The Keating-Owen Act forbade the delivery or shipment in interstate commerce of any article produced or manufactured by children who worked more than a specified number of hours per day, more than six days in a week or who worked at night.

Congress believed that the law was constitutional because the Supreme Court had previously upheld laws prohibiting the interstate shipment of lottery tickets, meat that had not been federally inspected, mislabeled eggs, and women transported for purposes of prostitution (Segall 2012, p. 35).

However, the Supreme Court invalidated the Keating-Owen Act. In Hammer v. Dagenhart (1918), the Court argued:

"The act, in its effect, does not regulate transportation among the States, but aims to standardize the ages at which children may be employed in mining and manufacturing within the States. The goods shipped are, of themselves, harmless ... In our view, the necessary effect of this act is, by means of a prohibition against the movement in interstate commerce of ordinary commercial commodities, to regulate the hours of labor of children in factories and mines within the States, a purely state authority. Thus, the act in a two-fold sense is repugnant to the Constitution. It not only transcends the authority delegated to Congress over commerce, but also exerts a power as to a purely local matter to which the federal authority does not extend."

In his dissenting opinion, Justice Oliver Wendell Holmes wrote:

"The notion that prohibition is any less prohibition when applied to things now thought evil I do not understand. But if there is any matter upon which civilized countries have agreed ... it is the evil of premature and excessive child labor. I should have thought that, if we were to introduce our own moral conceptions where in my opinion they do not belong, this was preeminently a case for upholding the exercise of all its powers by the United States.

"But I had thought that the propriety of the exercise of a power admitted to exist in some cases was for the consideration of Congress alone, and that this Court always had disavowed the right to intrude its judgment upon questions of policy or morals. It is not for this Court to pronounce when prohibition is necessary to regulation -- if it ever may be necessary -- to say that it is permissible as against strong drink, but not as against the product of ruined lives."

Between 1900 and 1935, the Supreme Court struck down more than 200 state and federal laws regulating prices, wages, and hours, as well as labour laws protecting trade unions and children (Segall 2012, p. 38).

The most obvious display of bias in the Supreme Court came after 1929, when President Franklin Delano Roosevelt tried to end the depression through the New Deal, a package of state-led measures and investment programmes aimed at propping up and stimulating the failing economy.

Professor Carl Brent Swisher summarized the atmosphere of those days, when FDR was revolutionizing the relationship between the federal government and the economy:

"In his inaugural address, President Roosevelt promised vigorous leadership in combating the ills of the depression crisis -- 'action, and action now.' Under the spur of his driving enthusiasm Congress accepted from his hand and enacted a list of drastic and far-reaching measures with a speed unprecedented in American history. Hosts of enthusiastic followers rushed to Washington to aid in saving the nation from economic disaster. They were filled with a sense of mission and a scorn for precedent. New agencies were established, manned, and put into operation virtually overnight for the performance of functions not hitherto considered functions of the federal government at all. Supervision and coordination were wholly inadequate. Only zeal for the cause kept machinery moving with any semblance of order. The cause, however, in the face of a threat of economic ruin, was one on which all citizens of every philosophy could unite. For the moment, something approaching unity of sentiment prevailed" (Carl Brent Swisher, The Supreme Court in Transition, in Cope, Krinsky 1952, p. 2).

After Roosevelt took office in 1933, Congress passed 16 major pieces of legislation within the first hundred days, including the Emergency Banking Relief Act, the Economy Act, the Emergency Conservation Work Act, the Social Security Act, the Agricultural Adjustment Act, the National Industrial Recovery Act, and the Banking Act (Glass-Steagall)  (see June Hopkins, The New Deal, in: A Companion to Franklin D. Roosevelt, ed. William D. Pederson, 2011, pp. 241-241). Roosevelt's legislation expanded the role of the federal government and created the modern welfare state. Many of the principles established under the New Deal's mixed economy remained in place during the post-war economic boom and began to be dismantled in the 1970s.

But while initially the New Deal was met with enthusiasm, as the economic situation improved and the urgency of saving the nation from collapse faded away, conservative groups began to oppose Roosevelt's reforms. In particular, business elites were alarmed when they began to realize that the measures adopted by the government were not just temporary, but were designed as permanent. Furthermore, Roosevelt's policies were based on experimentation, and many practical problems arose when the government implemented its plan.

The Supreme Court soon undid many of the New Deal policies. During 1935-36, the Court struck down a dozen New Deal laws, thus threatening the entirety of Roosevelt's political vision (Stephen K. Shaw: The Supreme Court, in: Pederson, 2011, p. 432).

Referring to the Supreme Court's adherence to the laissez-faire approach to economics, Roosevelt said in a campaign speech in 1932: "'After March 4, 1929 the Republican party was in complete control of all branches of the federal government -- the Executive, the Senate, the House of Representatives, and I might add for good measure, the Supreme Court as well" (quoted in: Swisher 1952, p. 1).

The President was so frustrated that he decided to go to war with the Supreme Court. He laid out his infamous "court-packing" scheme, which would have allowed him to add one more judge for every judge over the age of 70 years and six months.

On March 9, 1937, President Roosevelt delivered his ninth "fireside chat" on the radio. In a fiery speech he accused the Court of acting "not as a judicial body, but as a policy-making body". The Court, he argued, was "reading into the Constitution words and implications which are not there, and which were never intended to be there". 

He concluded: "We have, therefore, reached the point as a Nation where we must take action to save the Constitution from the Court and the Court from itself. We must find a way to take an appeal from the Supreme Court to the Constitution itself. We want a Supreme Court which will do justice under the Constitution and not over it" (quoted in: Shaw 2011, p. 429).

His plan backfired and public opinion turned against him. However, during his long tenure he would be able to appoint more judges than any President before him, and to pack the Supreme Court with progressive justices who would not oppose the role of government in managing the economy. 

But the opposition to the mixed economy and the regulatory state continued to exist throughout the post-war era and intensified during the conservative reaction of the 1970s and 80s. One of the new schools of thought that formed in this period among conservative groups was originalism.

Although the basic principles of originalism were not new, they first coalesced politically in the 1970s. Originalists argued that the interpretation of the Constitution should reflect the original intent of the framers. One of the proponents of this version of originalism was Edwin Meese (Frank B. Cross, The Failed Promise of Originalism, 2013, pp. 23-24).

One major problem with this theory was that one had to try to search for the personal beliefs and the original intent of the framers, which is even more complex when one considers the fact that the framers were a group of people who might in certain cases disagree with each other on a variety of issues (ibid., pp. 24-25).

Later a "new originalism" emerged. It distinguished itself from earlier originalist doctrines because it focused on the original meaning of the words of the Constitution rather than on the understanding of the individual beliefs of the framers. This version of originalism, sometimes referred to as "semantic originalism," claims to be more objective than its predecessor (ibid., p. 27).

Originalist scholar and University of Chicago law professor William Baude defined originalism as "the view that law laid down by the framers in the Constitution remains binding until we legally change it, such as through the amendment process. Or differently, that the words in the Constitution have the same meaning over time, even if modern circumstances change, and even if we wish the words meant something else."

Among the most prominent proponents of semantic originalism are former Justice Antonin Scalia and incumbent Justice Neil Gorsuch.

However, we shall argue that originalism is simply a sophisticated way of concealing behind a veneer of noble objectivity the political bias and personal beliefs of conservative judges. Evidence suggests that originalist Supreme Court Justices have not ruled according to a supposedly objective, original meaning of the Constitution, but, just like the justices who denied African-Americans citizenship, struck down anti-child labour laws and invalidated New Deal legislation, are motivated by personal opinions.

For example, in the 1995 landmark case United States vs Lopez, the Supreme Court ruled that the Gun-Free School Zones Act of 1990 forbidding "any individual knowingly to possess a firearm at a place that [he] a school zone" as unconstitutional because the possession of a gun in a local school zone is not an economic activity that Congress could restrict under the Commerce Clause.

Conservative Chief Justice Rehnquist wrote:

"To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. See supra, at 8. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further."

In the 2000 case United States vs Morrison, the Supreme Court found that Congress does not have the authority to enact the Violence Against Women Act of 1994 under either the Commerce Clause or the Fourteenth Amendment, thus denying an alleged sex abuse victim the right to seek federal civil remedy for gender-motivated violence.

However, in the 2004 case Gonzales vs Raich, the Court ruled that the Commerce Clause gave Congress authority to prohibit the local cultivation and use of marijuana, despite state laws that legalized it. 

In his dissenting opinion Justice Thomas pointed out:

"Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers."

In the first two cases relating to gun possession and sexual abuse, conservative justices like Antonin Scalia chose to limit the power of the federal government. But when it came to using the power of the federal government to impose the prohibition of marijuana against California's state law, they ruled against the state and in favour of the federal government. 

It is not far-fetched to say that Justice Scalia did, in the course of his career, ruled according to principles that are dear to conservatives and showed little intellectual coherence.

Another proof that Chief Justices are motivated by politics is the fact that they are endorsed by politicians and lobbies.

In 2016 the Republicans led by Senator Mitch McConnell stonewalled President Obama's nomination of Merrick Garland to the Supreme Court. For almost a year they refused to even hold confirmation hearings. The Republicans wanted to put on the bench a conservative judge and refused to allow the President to exercise his legitimate powers.

During the second presidential debate in October 2016, presidential candidate Donald Trump said:

"I am looking to appoint judges very much in the mold of Justice Scalia ... people that will respect the Constitution of the United States ... Also, the Second Amendment, which is totally under siege by people like Hillary Clinton. They'll respect the Second Amendment and what it stands for, what it represents."

Why would conservatives go to such lengths to appoint a Supreme Court justice if they believed that the Court is and ought to be neutral? Obviously, the idea of non-political, non-partisan judges is a farce.  

In 2017 unknown donors gave $10 million to a conservative interest group called the Judicial Crisis Network to lobby for Neil Gorsuch's confirmation. During the Obama administration the organization had funded a $7 million campaign to block Merrick Garland's nomination.

Neil Gorsuch was appointed by the Senate in April 2017. In September he was criticized for giving a speech at the Trump International Hotel during an event organized by the Fund for American Studies, which offers academic programmes and fellowships promoting limited government and free market economics.

Some people called into question Gorsuch's impartiality. But people believing in Gorsuch's impartiality are guilty of willfully ignoring the evidence. Historically the Supreme Court has not been above politics. A Supreme Court seat was stolen by the Republicans in order to further their own political ideology and interests. Gorsuch is an agent of the conservative movement, not an impartial judge.

But, we may ask, what is the remedy to the current situation? 

We shall argue that, as the Constitution is structured, the politicization of the judiciary is inevitable. The only corrective is impeachment. And of all judges, Gorsuch may be the one who has most deserved to be removed from the bench.

One of the cornerstones of the Constitution is the principle of checks and balances. Separation of powers must ensure that no branch of government may abuse its prerogatives.

And indeed, the framers placed checks on the Supreme Court, as well. We seem to have forgotten this fact. We seem to paradoxically have come to believe that the only branch of government that is above scrutiny and immune to checks and balances is the Supreme Court. This couldn't be farther from the truth.

As Alexander Hamilton explained in Federalist Paper No. 79:

"The precautions for their [the judges] responsibility are comprised in the article respecting impeachments. They are liable to be impeached for malconduct by the House of Representatives, and tried by the Senate; and, if convicted, may be dismissed from office, and disqualified for holding any other."

In Federalist Paper No. 81 he wrote:

"It may ... be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom ...

"And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security.

"There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments."

The legislature was given the right to impeach judges. And for good reason. The judges need to be checked as much as the two other branches of government do. The fact that the framers intended to empower the legislature with the right to impeach judges may be seen from the fact that Supreme Court Justice Samuel Chase, who had been appointed in 1796, was impeached in 1804. Chase was ultimately acquitted. There can be no doubt that Congress has the authority to impeach and try judges. 

Would Gorsuch's impeachment intensify the politicization of the Supreme Court? And would it lead to his removal?

These questions are beside the point. Appointed judges are by their very nature political. They are picked by the President and confirmed by a Senate majority. The question is whether Supreme Court judges should be like an aristocratic elite, or whether they should, as all other branches of government, be subject to public scrutiny, pressure, and checks and balances. Regardless of whether a judge is removed or acquitted, the threat of impeachment would finally put pressure on judges to avoid excessive and blatant partisanship.

In particular, Congress should make sure that judges are not bought and sold by wealthy interest groups who want to use the unelected Supreme Court to impose their ideology and their objectives on the entire people. Neil Gorsuch and his financial ties to conservative groups should be investigated. Surely, the Republicans would vehemently protest. But so be it. A democracy cannot exist if one side is cowed into submission by the threats of lobbies. 


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