Interview: The Supreme Court Often Does Terrible Things by Ignoring the Constitution

Ian Millhiser. (Photo: Center for American Progress)​Ian Millhiser. (Photo: Center for American Progress)​Few institutions have inflicted greater suffering on ordinary people throughout the history of the United States than the Supreme Court. In Injustices, attorney Ian Millhiser has written a scathing indictment of how SCOTUS has undermined our rights and facilitated the creation of an oligarchy, comforting the comfortable and afflicting the afflicted. Click here to order the book now from Truthout.

The following is a Truthout interview with Ian Millhiser, author of Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting and Afflicted:

MARK KARLIN: In reading your book, I’m reminded of the right wing mantra that the courts should not legislate from the bench, implying that liberal justices do so. However, your book appears to confirm that it has been the right wing justices who currently have been doing the legislating? Is that a fair analysis?

IAN MILLHISER: I think that’s been the case for most of American history. As I lay out in the book, the Supreme Court paved the way for Jim Crow, they forced children as young as six to work in coal mines and cotton mills, and, more recently, they’ve been very aggressive in dismantling legal protections for workers and campaign finance regulation. It is true that, during Chief Justice Earl Warren’s tenure and for a few years afterwards, the Court moved the law in a more liberal direction, but this was an anomalous period in our history and, as I argue in the book, the Warren Court’s behavior was far more consistent with the text of the Constitution than its predecessors.

Why is the ongoing SCOTUS attack on voting rights such a threat to democracy?

The current Court’s voting cases have two prongs. They’ve struck down laws like the Voting Rights Act or campaign finance regulations that preserve the integrity of our democracy, while simultaneously ignoring constitutional safeguards against many voter suppression laws or partisan gerrymandering. The result is a nation where, for example, President Obama won Ohio in 2012 but Republicans won 12 of the state’s 16 House seats due to gerrymandering. Or where billionaires can essentially buy the gratitude of lawmakers by spending lavishly on super PACs and similar groups that help those lawmakers get elected.

What is your response to right wing supporters of the 5-4 Supreme Court who say, well didn’t the Warren Court and New Deal Courts behave the same way on behalf of the left?

The New Deal Court is important because its members ended the Court’s longstanding practice of inventing extralegal limits on federal and state power in order to halt minimum wage laws, keep children working in cotton mills and prevent workers from unionizing. The Warren Court followed up these efforts largely by reinvigorating long dormant constitutional rights – rights like the freedom of speech or the right to be free from race discrimination or the right to a fair and impartial trial. A judge’s primary obligation is to follow the text of the Constitution and of the law, and the Warren Court’s justices did a far better job of living up to that obligation than most individuals who have sat on the Supreme Court.

Can you write a little about your chapter “Rigging the Game?” What is the impact of the Supreme Court endorsement of gerrymandering? You state: “In many states, voters didn’t get to choose their own members of Congress. Members got to choose their own voters.”

As I mentioned above, Republicans cleaned up in Ohio’s congressional races in 2012, largely due to gerrymandering, despite the fact that the state went blue at the presidential level. The same thing happened in Michigan, where Republicans won 9 of 14 seats despite Obama’s nearly 10 point victory in the state as a whole, and in Pennsylvania, where Republicans won 13 of 18 seats despite Obama’s 5 point victory. Indeed, in 2012, Democratic House candidates received nearly 1.4 million more voters than Republican House candidates – imagine how much could have been accomplished during the two years after that election if the American people had gotten the unified government that they voted for.

Partisan gerrymandering is unconstitutional. It violates the First Amendment’s ban on viewpoint discrimination. But the Supreme Court, in 5-4 decisions, has refused to even allow federal courts to consider these cases.

Along the same theme of rigging outcomes in democracy, talk a little bit about your take on the campaign financing decisions that have so dramatically tilted campaign financing in favor of the wealthy.

The problem with cases like Citizens United is that they ignore the corrupting effect of money on politics. Though the Court has long held that campaign finance laws are limited by the First Amendment, it’s also long recognized that these laws can be used when necessary to combat corruption. The Roberts Court, however, has defined the word corruption so that it is simply meaningless. Under the Roberts Court’s decisions, a billionaire can write a $100 million check to elect candidates from one party or another so long as that money does not go directly to the candidates campaigns and is instead funneled through a super PAC or similar group. Meanwhile, the candidates are perfectly capable of figuring out who is writing these checks and who they should be grateful to as a result.

On page 254, you write that “the Roberts Court will have free rein to rework the balance of power between big businesses and ordinary Americans, and no one will be able to stop them.” Can you expand on that assertion?

Sure. I was referring in that passage to congressional dysfunction. Congressional overrides of Supreme Court decisions used to be very common. According to a study that I cite in Injustices, Congress overrode an average of about a dozen cases during each two-year term between 1975 and 1990. Between 2001 and 2012, that number shrank to 2.7 decisions overruled. So the justices have grown more and more powerful because they are largely able to act without adult supervision.

What do you make of the Republican mantra of “constitutional constructionism?” Scalia is a big proponent of viewing the Constitution as a fundamentalist might view the bible, but Scalia is always making partisan pronouncements in his rulings that aren’t in the Constitution. Is there any explanation of how he and other justices like him can get away with rulings so in contradiction to what they claim should be the basis for rulings?

I will fight a battle over the text of the Constitution with conservatives any day of the week and twice on Sunday. The Constitution says that Congress may “regulate commerce,” but conservatives want me to believe that a law that comprehensively regulates our health care system doesn’t have anything to do with commerce. The Constitution says that a state may not “deny to any person within its jurisdiction the equal protection of the laws,” and this provision has consistently be read to protect groups that have historically been subject to irrational discrimination. Yet conservatives want me to believe that the Constitution says that “no person shall be denied the equal protection of the law unless they are gay.” One thing that I spend a lot of time discussing in my book is how, when the Court has done terrible things, it has often been because the justices ignored the text of the Constitution.

Since the infamous Louis Powell memo of the early 1970s, the Republicans have fiercely fought in the Senate to create a right wing federal bench. The Democrats in the Senate, however, have generally lacked the tenacity and strategic finesse to appoint a federal judiciary that reflects a respect for the rights of individuals. Would you agree that the Republicans have understood for some time that they could often control the law through the federal courts if they couldn’t in Congress?

I actually think we’ve seen the Republican Party adopt much more aggressive tactics in the Obama era than they did in the Nixon through Bush II administration. Nixon and Reagan’s rhetoric around the judiciary was very focused on judicial restraint – much like Franklin Roosevelt’s – and before the day that the Obamas moved into the White House, Republican judges seemed much more concerned with diminishing the impact of the federal judiciary than they are now. That doesn’t mean that they were saints – often they diminished the impact of the judiciary by shrinking the scope of very important legal rights, but it was still a very different agenda than what you see Republicans pushing now in the judiciary.

Since Obama became president, lawsuits have become the GOP’s first line of defense when they are unable to get their way through the democratic process. Obama signs a law that gives millions of people health care? Find a judge to strike it down. Can’t get enough justices to agree to repeal the law? Find a judge who will gut it. Don’t like Obama’s immigration policies? Find a judge with a history of hostility towards undocumented immigrants and get him to block those policies. It’s a very similar tactic to the one that conservatives used to attack the income tax, the right to organize and the ban on child labor in previous generations.

Your last chapter is entitled “The Gathering Storm.” How could Supreme Court rulings get worse in terms of right wing decisions?

When the next president takes office, there will be three justices over the age of 80, assuming no one leaves the Court before then, and one justice who will be 78. That means that the next president could appoint nearly half of the Court in just one term.

One justice who is likely to remain on the Court for a while is Justice Clarence Thomas, who embraces a reading of the Constitution that would lead to federal child labor laws, minimum wage laws and the ban on whites-only lunch counters being struck down. When I cover conservative legal events like the Federalist Society’s annual convention, I see a burning desire to put more Clarence Thomases on the Supreme Court, and these are the people that many of the people running for president right now will rely on when they are picking judges or justices. If these folks gain control over a majority of the Court, the New Deal, the Great Society and Obamacare could all be on the chopping block.