The United States Supreme Court at one time was viewed with a unique “sense of awe” and respect because it consistently interpreted the United States Constitution as a “living and evolving document”. A document that evolved and ensured and protected civil rights and remedies to conform with changing times, changing norms, changing viewpoints.
Without such a constitutional evolution, slavery would still exist in the United States, woman would not be allowed to vote, discrimination based on a person’s gender, race, color, religion or sexual orientation would be allowed, interracial marriage would be illegal, and the doctrine of “sperate but equal” and Jim Crow laws would still be the law of the land.
In the span of a mere 370 days, the United States Supreme Court with the appointment of 3 right wing supreme court justices by President Donald Trump, has set aside 50 years of legal precedent. Major Supreme Court decisions that have had a direct impact on New Mexico include the court overturning Roe v. Wade guaranteeing a woman’s right to abortion. The reversal was anticipated by the New Mexico legislature so it repealed the 1969 criminal law outlawing abortions and enacted legislation protecting a woman’s right to choose. This year’s decision to eliminate affirmative action in higher education will have major impacts on all New Mexico Universities in that all have affirmative action programs, including the fields of law and medicine. The court’s ruling that a Christian business owner can discriminate and deny services to LGBTQ+ community based on religious grounds essentially negates provisions of the New Mexico civil rights and public accommodation laws.
The United States Supreme Court’s legitimacy has always depended upon the public perceiving the court and its decisions as being “fair and impartial” based on the rule of law and precedent known as “stare decisis” and absent all partisan politics. So much so that labels such as “liberal”, “progressive”, “moderate” and “conservative” are used in referring to Supreme Court Justices’ philosophies without party affiliations used. It’s a charade that Supreme Court Justice’s and federal judge’s party affiliations are never identified nor reported by the media.
It’s a realty that the process of selecting Supreme Court Justices is as partisan as it gets. The overlap between “judicial ideology”, “political ideology” and the “party affiliation” of those selected supreme court justices are now one and the same. The President nominating and the Senate having the power to confirm Supreme Court Justices results in selection of Justices who will interpret the law identical to the views held by the political party in power in the White House and the US Senate.
The Supreme Court’s eclectic mix of decisions over the past two years by the right-wing Republican court calls into question its legitimacy. The Supreme Court’s legitimacy is undermined by the ethical missteps of court members and the Court not having a Code of Ethics as required by all other federal courts. There have been repeated reports of years of undisclosed vacations and large gift payments to family members of Justice Clarence Thomas and Samuel Alito from billionaire Republican donors. Supreme Court Chief Justice John Roberts has resisted instituting a Code of Judicial Ethics requiring financial disclosures by Supreme Court members saying Congress has no authority to impose a Code of Judicial ethics on the court. Roberts merely promises the Court will do more to adhere to high ethical standards, but fails to condemn the ethical indiscretions of Thomas and Alito.
An ABC News/Ipsos poll revealed that 53% of the American people believe the Supreme Court makes decisions based on their partisan political view, 33% believes the court rules on the basis of the law while 14% said they don’t know. The poll found 76% of Democrats and 51% of independents believe the Court rules on the basis of their partisan political view and 36% of Republicans believe the court makes rulings based on their partisan political view.
A story has been told and retold about founding father Benjamin Franklin. Franklin was walking out of Independence Hall after the Constitutional Convention in 1787, when someone shouted out, “Doctor, what have we got? A republic or a monarchy?” To which Franklin supposedly responded, “A republic, if you can keep it.”
What we have now is a “political judicial monarchy” complete with 9 people all dressed up in black ropes with gavels replacing scepters and a courtroom replacing a royal thrown room as they render their decrees of justice to carry out the will of the Trump Republican Party.
Pete Dinelli is a native of Albuquerque. He is a licensed New Mexico attorney with 27 years of municipal and state government service including as an assistant attorney general, assistant district attorney prosecuting violent crimes, city of Albuquerque deputy city attorney and chief public safety officer, Albuquerque city councilor, and several years in private practice. Dinelli publishes a blog covering politics in New Mexico: www.PeteDinelli.com.