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Senator Warren seeks to destroy the judiciary while Chief Justice Roberts refuses to testify

What we have been seeing lately is a full-court press to compromise the independence of the judiciary, particularly the Supreme Court. Recently, we have seen the racist attacks on Justice Thomas get undermined by former Justice Breyer, and a hit piece of Justice Gorsuch that apparently wasn’t reviewed by anyone who understands the law. This is all part of one front in this metaphorical ‘war:’ The push to impose a judicial code of ethics on the Supreme Court.

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Another ‘salvo’ is coming on May 2, 2023, when the Senate Judiciary Committee plans to hold a kangaroo court totally serious inquiry into ethics on the Supreme Court. The chair of that committee, Dick Durbin, invited Chief Justice Roberts to testify. We have deep disagreements with the Chief Justice, but he seems to have handled this situation correctly, so far, by declining in a letter to the committee:

What is wise about his approach is that the letter is so utterly mundane. One could read it to a person who is having trouble sleeping and it would probably work better than a chemical sleep aid. There’s no pointed language, just a very boring recitation of how unprecedented it would be for him to testify and a very polite refusal. It comes off as passionless, and thus very credible as neutral decision. One can only speculate at how Roberts actually feels, but comes off as indifferent in the best way possible.

Of course, this is one front in that metaphorical war and one of the people leading the charge is Senator Elizabeth Warren. She tweeted out her own little threat to the Supreme Court earlier this week:

As usual for her, this represents confused thinking. For instance, she claims that for the sake of democracy we have to reign in the Supreme Court, but also complains about Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022). That would be the case that overturned Roe v. Wade, 410 U.S. 113 (1973) and a bunch of other cases that held that there was a right to abortion in the constitution. Just to be clear, in Roe, the Supreme Court made up a ‘constitutional’ right that did not exist in the Constitution and then said that every single state’s abortion laws were unconstitutional because it violated this made-up right. That was an anti-democratic decision. It nullified the laws of every state, which had been passed through a much more democratic process. We became less of a democracy and more of an oligarchy of Supreme Court justices under Roe. Therefore, when Dobbs was handed down, allowing states to make a wider range of laws on abortion, we became a more democratic republic. But somehow this increase of democracy is seen as a threat to democracy. It makes zero sense.

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As for her complaint about ‘rigging the rules against workers and consumers,’ she gives no clear indication what she is talking about or even that she knows what she is talking about.

Naturally she got some pushback:

And this is a fascinating comment from a South African legal scholar:

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And this gentleman predicts that republicans will retaliate with their own court packing, endlessly expanding the court until…

This Tweeter is getting at the problem with a Supreme Court code of ethics: who is going to write them, and who is going to enforce them? To say that this creates serious separation of powers concerns is an understatement.

And naturally Warren’s saber-rattling also got praise, but not a lot:

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However, most people walked past the biggest concern for the court-packing proposal and what is truly dark about it.

This isn’t the first time Democrats have talked about packing the Supreme Court. President Franklin D. Roosevelt made such a proposal, and this excellent thread discusses what happened in some detail:

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This old newsreel also portrays the court-packing plan as a failure:

But it wasn’t a complete failure.

It was successful in bullying the Supreme Court into compliance. In legal circles (which certainly includes Senator Warren), it is generally agreed that in the same year the court packing proposal was defeated, Justice Owen Roberts suddenly started voting to uphold major provisions of the New Deal. That gave the liberal justices on the Supreme Court at the time just enough votes to uphold the New Deal in case-after-case. The common belief is that Owen Roberts did this in order to reduce anger at the Supreme Court so that no such proposals to pack the court would succeed. In legal circles, this is called ‘the switch in time, that saved nine.’

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In short, it was the classic tactic used by weaker children to keep bullies from beating them up: Give the bullies whatever they want. It is understandably human, but not very good when our Constitution is supposed to grant certain rights that are not to be violated. It is fair to draw a direct line between that successful act of bullying to this:

Yes, six years later, Fred Korematsu brought his challenge to Japanese internment to the Supreme Court, arguing that the mere fact he was Japanese did not justify imprisonment. But by then, he was facing a court too timid to stand up to a wartime president and so he was told his detention was lawful in Korematsu v. United States, 323 U.S. 214 (1944).

That is the dark history Senator Warren is attempting to repeat. She should be ashamed of herself that she is doing this and we pray she is never successful.

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