9 Comments
Mar 13, 2023·edited Mar 13, 2023Liked by Michael Podhorzer

As Faulkner famously said: "The past is never dead. It's not even past." Perhaps it's the curse of every generation to assume that it is facing new problems when the old ones will do just fine. FDR started to break us from the past and LBJ moved us into the fast lane. Adrienne LaFrance in the April issue of the Atlantic lays out the slow rot of extremist violence that is undermining our democracy and attempting to crank back the clock. The remedy she proposes is very much like your own: we have to call out what's happening and challenge it head on. I will be forever baffled why the Democrats (especially Manchin and Sinema) refuse to see that Republicans have already packed the Court and refused to take the actions necessary to put the ship of state on course again.

Thanks for your excellent post.

Expand full comment
Mar 12, 2023·edited Mar 12, 2023

Just heard you on Amicus with Dahlia Lithwick and thought it was one of the best and most thought provoking episodes of her pod this year so far.

I have often ascribed to the importance of "following the money" and you're so very right in noting that it's not the money itself that we should be focused on, but on outing and shouting from the roof tops WHO is supplying the money and WHY? What is their longterm agenda for the rest of us? It's clearly not pretty or democratic.

Of course, this clarity doesn't make it any more tempting to wonder if this is a fight that can yet be won, or if I shouldn't just move away to a country that didn't make systemic corruption and anti-democratic policies completely legalized. :P

Either way, you've won my interest and admiration and I joined the substack the moment I finished listening to your discussion on Amicus.

Expand full comment
author

Thank you. I appreciate your support.

Expand full comment

Your work is beyond laudable, it is the important context and framing through which all FedSoc SCOTUS opinions should be evaluated. My wish is that current and future members of the media read and contextualize your amazing scholarship! Can’t wait to see what comes next! Thank you!

Expand full comment

Wow! This part alone is breathtaking.

"The campaign to repeal and replace the 20th century is an extremely well-funded enterprise, organized by people who have never made any secret of their plans. None of this is happening by accident.

Yet for the most part, media coverage of SCOTUS continues to focus on the details of the individual cases on the docket: the arguments each side is putting forth, the likelihood that certain justices will find those arguments persuasive, and what a “win” for either side could look like. In the context of our current crisis, however, doing this is like narrating each segment of a bullet’s trajectory without naming the assassin or his target."

Expand full comment
author

Thank you!

Expand full comment

Hi Mr. Podhorzer,

In case you haven't seen my Wash Post letter, quoting Reagan's solicitor general Charles Fried's letter in the 11/24/22 NY Review of Books, here it is. I will encourage people I know to subscribe to your blog.

Sincerely,

Erich Martel, Washington, DC

ehmartel@starpower.net

My WashPost letter: “The Roberts Court’s … program [is] to repeal the 20th Century”!!

(Quoted from Charles Fried’s letter in the NY Review of Books, November 24, 2022)

Charles Fried’s chilling words lay bare the Roberts Court’s goal of ending the fragile social contract and hard-won democratic rights holding this country together. After reading his NY Review of Books letter, I wrote the letter below to the Washington Post to bring his warning to a wider audience. Please help!

= = = = = = = =

The Letter (it also appeared in the 12/3/22 print edition):

https://www.washingtonpost.com/opinions/2022/12/02/supreme-courts-ideology-is-partisan/

Opinion: The Supreme Court’s ideology is partisan

Regarding Ruth Marcus’s Nov. 25 op-ed, “Can the Supreme Court find its ethical compass?”:

The Supreme Court’s extremist ideology is partisan. After being auditioned and vetted for ideological conformity by the Federalist Society, as Sen. Sheldon Whitehouse (D-R.I.) reports in “The Scheme” and promoted by a $400 million dark-money campaign to confirm them, Donald Trump’s three appointed justices — and Chief Justice John G. Roberts Jr. — knew they were part of a court-packing plan.

Charles Fried, President Ronald Reagan’s solicitor general, who testified in support of Chief Justice Roberts’s nomination, perceptively wrote in a Nov. 24 letter to the New York Review of Books that the press incorrectly calls the Roberts court conservative: “The correct term is ‘reactionary,’ and the best description of what they are doing is a program to repeal the twentieth century, ... including the reforms of Theodore Roosevelt and Woodrow Wilson. Think of administrative law and administrative agencies’ regulation of business, regulation of elections and campaign finance laws ... the empowerment and regulation of public- and private-sector labor unions, the secularization of publicly funded primary and secondary education — in all these areas in the last few years the Court has overturned precedents and doctrines, understandings and practices reaching back at least to 1903. And there may be more to come.”

The Senate needs to conduct a public hearing into the use of dark money to ideologically capture the Supreme Court. Chief Justice Roberts needs to give full cooperation. This is a lot bigger than adopting a voluntary code of ethics.

Erich Martel, Washington

= = = = = = =

The Roberts Court’s project of undoing the federal government’s role in “promot[ing] the general welfare” of “We the People” constitutes a de facto rolling judicial coup. The President and Congress must find the constitutional means of preventing it. The media must expose the court’s partisan capture by unmasking the identities and goals of the dark money that funded it. At this point, justices’ ethical abuses are secondary to their original abuse of failing to divulge that they auditioned for their nominations, then dishonestly hid their extreme anti-democratic ideologies during Senate confirmation.

Charles Fried, a professor at Harvard Law School, previously served as Pres. Reagan’s solicitor general. In 1989 he argued before the U.S. Supreme Court against state funding of abortions in Webster v. Reproductive Health Services and in 2005 testified before the US Senate in support of John Roberts nomination to US Chief Justice. But in a November 30, 2021 NY Times opinion, “I Once Urged the Supreme Court to Overturn Roe. I’ve Changed My Mind” (published the day before the SC heard Dobbs v. Jackson), he concluded that, “To overturn Roe now would be an act of constitutional vandalism - not conservative, but reactionary.”

His succinct analysis deserves wide distribution. Please share, esp. with journalists, editorial writers, columnists, bloggers, etc.

- Erich Martel

Retired DCPS history/social studies teacher ehmartel@starpower.net

Expand full comment
author

Thank you!

Expand full comment

Michael, I completely agree with your analysis, as expressed in your article above and your interview with Dahlia Lithwick. And I also agree with your conclusion that the only way to oppose and defeat slow motion coup which you clearly describe is to educate the populace and its leaders in many fields that the coup is occurring, to develop a plan to overcome the coup, and to implement that plan. I believe that there is a such a plan which can be implemented by national legislation.

Our structural problems have existed since the ratification of the Constitution. They can be placed in three buckets: (i) the extent of Congress's power over the states, (ii) the extent of Congress's power over the Supreme Court, and (iii) the disproportionate power of less populated states and the vote suppressing states. Of these problems, the third one is the most important because the power of the anti-democratic forces (today's Republican party) is based in the state houses of those states. These structural advantages can not be completely eliminated without amending the Constitution (which is almost impossible) because of the equal representation of each state in the Senate. However, they can be significantly diminished by the following legislative actions: (i) eliminate or revise the filibuster, (ii) add Democratic leaning states (DC and PR), (iii) eliminate political gerrymandering for every level of election, state and federal, (iv) increase the size of the House, and (v) implement Section 2 of the 14th Amendment (which reduces the number of representatives of any state which denies or abridges the right to vote of any of its citizens. It should be noted that several of these actions would have been implemented during the last term of Congress if two more Democratic Senators (Sinema and Manchin) were willing to amend the filibuster.

Under Article III, Section 1 of the Constitution, the Court is vested with the judicial power of the United States. As you have described, when the Court redefines the broad generalities of the most important constitutional provisions, it is acting as a legislature, exercising political power. As to the Court, Congress has tools which it could use to rein in the Supreme Court. The report of the Presidential Commission describes many of them, including its power, under Article III, Section 2, to limit the Court's appellate jurisdiction.

The one tool which is rarely discussed is Congress's power to directly overturn Supreme Court decisions. The most significant exercise of this power was the overturning of one of the most political decisions ever-Dred Scott. In 1857, the Supreme Court was dominated by slave owing Southerners and Southern sympathizers. At the urging of President-elect Buchanan, the Court opined that the Missouri Compromise of 1820 was unconstitutional. In other words, the Court held that Congress did not have the power to outlaw slavery in territories owned by the United States. This holding was made in the face of the fact that Congress had exercised throughout almost the entire history of the United States:

-The Northwest Territories Ordinance of 1787 (which was enacted by the same Congress that ratified the Constitution, banned slavery in the areas which become the states of Ohio, Indiana, Illinois, Michigan and Wisconsin),

-Jefferson's Louisiana Territories Act of 1802 which banned the importation of slaves into the newly acquired Louisiana Territories, and

-The Missouri Compromise of 1820

This ruling was intended to increase the power of the slave owners, as each new state carved out of the Louisiana Territories would permit slavery. The decision outraged much of the North and Lincoln became President based upon the strength his opposition to the Dred Scott decision. In his first inaugural address, he said:

“… [T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”

And by enacting Act CXI of 1862, which forever banned slavery in any territories owned by the United States, Congress directly overturned the Dred Scott decision.

Professors Bowie and Renan of Harvard Law presented a strong case against judicial supremacy in The Atlantic: https://www.theatlantic.com/ideas/archive/2022/06/supreme-court-power-overrule-congress/661212/?utm_source=email&utm_medium=social&utm_campaign=share.

The third prong of the slow motion coup is reduce the power of Congress and the Federal government over the states. There are two major paths which the Court is following to implement this goal-seeking to reduce or eliminate the power of agencies created by Congress and narrowing the interpretation of Congressional power under the Commerce Clause. These holdings are political and not judicial. Interestingly, the Court, led by Justice Thomas, has opened another area which could greatly expand Congress's ability to protect the fundamental rights of all American citizens-the privileges and immunities and enforcement provisions of the 14th Amendment (Sections 1 and 5, respectively). The "conservatives" on the Court are aware of this long stunted power of Congress, and have sought to continue to shackle it with the self-aggrandizing construct that the only fundamental rights are only those which the Court finds are "consistent with the tradition and history" of the nation. As I note above, Congress can directly challenge all of these political holdings by legislation.

For your information, I made a submission to the Presidential Commission on the Supreme Court which covered many of these ideas. Here is the link to the submission: "The Constitution Provides Tools which can be used to Overcome a Conservative Controlled Supreme Court and to Change

the Rural Tilt of Congress": https://www.regulations.gov/comment/PCSCOTUS-2021-0001-3942

I hope that these ideas are helpful. To resist the slow motion coup, the people and their leaders must be educated that these tools are available so that they demand that these changes be made.

Expand full comment