We've Seen This Play Before

A Puerto Rican, Sonia Sotomayor is the first Latina to serve on the United States Supreme Court. But as Mehdi Hasan understands, that's simply not good enough.

In the article in The Guardian, Hasan writes

...it is time to remember Ruth Bader Ginsburg. To recall how RBG, who had survived two bouts of cancer, refused to quit the court despite calls to do so from leading liberals during Barack Obama’s second term office. To hark back to her insistence, in multiple interviews, that it was “misguided” to insist she retire and that she would only stand down “when it’s time”. To recollect how, on her deathbed in 2020, she told her granddaughter that her “most fervent wish is that I will not be replaced until a new president is installed” – and how it made no difference whatsoever! Donald Trump nominated Amy Coney Barrett as RBG’s replacement just eight days after her death, and Senate Republicans confirmed Barrett to RBG’s vacant seat just eight days before election day.

With Joe Biden trailing Trump in several swing states and Democrats also in danger of losing their razor-thin majority in the Senate, are we really prepared for history to repeat itself? Sotomayor will turn 70 in June. Of course, only Sotomayor knows the full status of her health, still it is public knowledge that she has had type 1 diabetes since she was seven; had paramedics called to her home; and is the only sitting justice to have, reportedly, traveled with a medic. To be clear: she could easily – and God willing – survive a potential Trump second term and still be dishing out dissents from the bench come 2029.

But why take that risk? Why not retire now? Why not quit the bench at the same age that justices in Belgium, Australia and Japan are forced to do so?

"I have PTSD from 2020 [& RBG]...The Republicans are very good at stacking courts... Democrats aren't very good at seeing the power of the Supreme Court."

I debated & defended my Guardian piece calling for Justice Sotomayor to retire so a Dem president + Senate can replace her. pic.twitter.com/JEPMWaA2g2

— Mehdi Hasan (@mehdirhasan) April 3, 2024

Unfortunately, Sotomayor could not announce a retirement effective January 1, 2025 or January 7, 2025, the day after Congress presumably will certify the presidential election results, reserving the option to withdraw her resignation if Trump prevails. There is nearly a 50% chance that Biden will be re-elected while the math for Democrats holding on to the Senate is clearly absent.

Also unfortunate: Sotomayor is unlikely to retire, in part because there will be little pressure on her to do so. Hasan notes

In 2021, the progressive group Demand Justice sent a billboard truck to circle the supreme court building with the message: “Breyer, retire.” I joined in, too. “Retire, retire, retire,” I said in a monologue for my Peacock show in 2021. “Or history may end up judging you, Justice Breyer.”

So why is it okay to pressure Breyer to retire but not Sotomayor? 

There is no good reason, but thee is a reason and

This time round, Demand Justice isn’t taking a position on whether an older liberal justice should quit while a Democratic president and Senate can still replace them and, as HuffPost reports, “on the left, there is little open debate about whether she should retire.”

Well, of course, there isn't. And the reason there isn't echoes the reason why there is no push at all for Kamala Harris to step down. Karen Finney, the Democratic strategist who is quite pleased this state of affairs, believes that the risk of losing the presidency is an acceptable price to pay to maintain demographic purity. Citing an initial interest in a presidential bid

When you had people who were trying to test the waters, the party rose up and made it clear to those individuals — who were mostly white men — that to disrespect the vice president would not be well received by women and people of color within the party. They got a little bit of a smack in the face.

There are powerful figures in or about the Democratic Party who are less concerned with turning over the presidency to Donald Trump- or losing another Supreme Court seat to a selection made by a President Trump- than they are to the idea of losing a first. That would be the first black Vice President or the chance of the first black female President, and the first American of Latin descent to serve on the USA Supreme Court.

As Hasan advocates, Ginsburg might make the courageous and patriotic decision to step down. But Ruth Bader Ginsburg didn't, Kamala Harris won't, and it's not likely that Sonia Sotomayor will, either.

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That Notorious Justice

There was a time when nominees for the United States Supreme Court did not routinely lie, mislead, or fail to answer the questions upon testifying before the Senate Judiciary Committee. And so it was that when Ruth Bader Ginsburg was tapped by President Barack Obama for a seat on the United States Supreme Court, she stated

The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. It is a decision she must make for herself. When government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices.

That might not have seemed a revolutionary statement at the time. But it is now that

Alabama Gov. Kay Ivey on Thursday signed the nation’s most restrictive abortion law, setting up a court fight that Republicans hope will end with the Supreme Court overturning Roe v. Wade.

“To the bill’s many supporters, this legislation stands as a powerful testament to Alabamians’ deeply held belief that every life is precious and that every life is a sacred gift from God,” Ivey said in a statement.

The state Senate on Tuesday approved the legislation, which prohibits abortion at any point during pregnancy, even in cases of rape and incest. The bill, which was easily approved by the Republican-dominated House last month, does make an exception if the pregnancy poses a health risk to the mother.

Leana Wen, president of the Planned Parenthood Action Fund, earlier Thursday vowed a legal challenge, saying the law violates the landmark 1973 Roe ruling guaranteeing a woman’s right to an abortion until a fetus is viable.

The Republicans who pushed for and passed the legislation are hoping for just that. They believe the Supreme Court's new conservative majority offers the anti-abortion movement its best chance in a generation to overturn Roe.

Just this year, four states, including Georgia last week, banned abortion once a fetal heartbeat is detected — about six weeks into a pregnancy. But Alabama’s law goes even further. This measure prohibits abortion at any point during the pregnancy and while a woman can’t be prosecuted, a person who performs the abortion can be convicted of a Class A felony and be imprisoned for up to 99 years in prison — essentially a life sentence.

Of course he- or she- can.  Activists and their allies want to threaten only the doctor with prison because it is relatively safe politically.  They realize that were the individual (woman) who wants, seeks, obtains, and pays for an abortion to be held accountable for what they consider "murder," there would be public revulsion.

Moreover, they want to threaten only the doctor with prison because in so doing they remove from the woman all agency.   They deny her the ability to consider herself a fully adult human responsible for her own choices. And that is a very, very good day for the forced-birth movement.

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The U.S. Supreme Court, Bringing You Politics Since 2000

In a New York Times profile published Sunday, Supreme Court Justice Ruth Bader Ginsburg commented "I can't imagine what this place would be -- I can't imagine what the country would be -- with Donald Trump as our president. For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.”

Then on Tuesday in a previously scheduled interview with Supreme Court biographer Joan Biskupic

"At first I thought it was funny," she said of Trump's early candidacy. "To think that there's a possibility that he could be president ... " Her voice trailed off gloomily.

"I think he has gotten so much free publicity," she added, drawing a contrast between what she believes is tougher media treatment of Democratic candidate Hillary Clinton and returning to an overriding complaint: "Every other presidential candidate has turned over tax returns."









Responding to the Times' report, an uncharacteristically self-righteous Donald Trump, who responded "I think it's highly inappropriate that a United States Supreme Court judge gets involved in a political campaign, frankly."

Some Democrats fretted, as Democrats are wont to do. "We all know that the justices on the Supreme Court have political views. I’m not sure we’re well-served by them airing them out in the open," Senator Chris Murphy of Connecticut stated.  Senate Minority Whip Dick Durbin added “She may have got out over her skis a little bit and (been) more forthright and political than she should have been. It’s very unusual."  Senator Brian Schatz of Hawaii conceded "If it's not over the line, it's very close to the line.”

There is no need to play defense. The answer to any question about the propriety of Justice Ginsburg's remarks is "Bush v. Gore." Five Justices on the Supreme Court shed most doubt they were engaged in the political process when by per curiam decision the concept of equal protection was turned on its head and they stopped the recount in Florida in the 2000 presidential election. Then they eliminated all doubt when they added "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities."

Trump was shocked, shocked! a Supreme Court Justice would't maintain neutrality about a presidential race. He exclaimed "I think it's a disgrace to the court and I think she should apologize to the court. I couldn't believe it when I saw it."

But it is only for the members of a particular family, group, or court to determine whether one of their own should apologize to them. Donald Trump doesn't get to make that determination. Or he wouldn't, except that he so many of his statements are beyond the pale that when he says something normal, the media and political insiders are relieved and impressed. The bar has been set very, very low for this man. "Believe me."










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A Game They Will Not Play

In January, the American Family Association issued a news release which- in the unlikely event it would be successful- would give opponents of same-sex marriage a fighting chance when the matter hits the High Court this summer. In part, it read (italics the organization's)




In light of the U.S. Supreme Court’s announcement that it will hear the issue, American Family Association (AFA,www.afa.net) says Supreme Court Justices Elena Kagan and Ruth Bader Ginsburg should recuse themselves from making any same-sex marriage decisions because they have both conducted same-sex marriage ceremonies.

“Both of these justices’ personal and private actions that actively endorse gay marriage clearly indicate how they would vote on same-sex marriage cases before the Supreme Court,” said AFA President Tim Wildmon. “Congress has directed that federal judicial officers must disqualify themselves from hearing cases in specified circumstances. Both Kagan and Ginsburg have not only been partial to same-sex marriage but they have also proven themselves to be activists in favor of it. In order to ensure the Court’s integrity and impartiality, both should recuse themselves from same-sex marriage cases. Congress has an obligation to Americans to see that members of the Supreme Court are held to the highest standards of integrity. The law demands it, and the people deserve it"....

Kagan performed a September 21, 2014, same-sex marriage ceremony for her former law clerk and his partner in Maryland. And Ginsburg performed a same-sex marriage ceremony at the Kennedy Center for the Performing Arts in Washington D.C., in August 2013.

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Bill O'Reilly emphatically agrees. However, the District of Columbia legalized same-sex marriage in 2009, as did the State of Maryland in November, 2012. It is not unprecedented for Supreme Court justices to perform wedding ceremonies and the ceremonies cited by the AFA were as legal as opposite-sex marriages. Ian Millhiser persuasively argues

If mere participation in a legal institution was grounds for recusal, then it would be difficult to find judges or justices who weren’t recused from many cases. The speed limit in the state of Colorado, for example, is 75 mph, while other states have lower speed limits. Yet, if a litigant were to challenge one of these lower speed limits in court, a judge would not be required to recuse themselves simply because they once drove on Colorado’s roads and took advantage of its higher speed limits.

It's not only that Kagan and Ginsburg have done nothing wrong.  From 1976 to 1979 Clarence Thomas was a lawyer for Monsanto Corporation and as an Associate Justice has taken substantial money- as gifts or speaking engagements- from organizations advocating the interests of agribusiness.  Yet (or maybe therefore) he still sat when the US Supreme Court decided Monsanto Co. v. Geertson Seed Farms in 2010 and Bowman v. Monsanto Co. in 2013.

Moreover, shortly before the Supreme Court ruled on the constitutionality of the Affordable Care Act, in June 2012 Elizabeth Flock of US News & World Report explained that Justice Thomas' wife Ginni

has been a vocal critic of the Affordable Care Act, and she has certainly made money off of that criticism. In 2009, she founded the Tea Party nonprofit lobbying group Liberty Central, which lobbied against the law. There, she made a salary of $120,000, according to the group's 2010 tax filing.

A startup donation to Liberty Central to the tune of $500,000 came from Harlan Crow, a Dallas real estate investor, Republican donor, and friend of Justice Thomas, Politico reported in 2011. Crow declined to comment to the New York Times about whether he was the source of the money.

Ginni Thomas later stepped down as CEO and president of Liberty Central, but started Liberty Consulting in 2010, which also did anti-healthcare reform lobbying, according to the liberal site Mother Jones.

And in January 2011, it came to light that Justice Thomas had "inadvertently" left out information about his wife's employment over the last 13 years—where her earnings added up to as much as $1.6 million, the Huffington Post reported.

One of her former employers: the Heritage Foundation, where Ginni Thomas made hundreds of thousands of dollars between 2003 and 2007, according to a letter from Thomas to the Committee on Financial Disclosure. The foundation has also been a vocal opponent of the healthcare reform law.

That's (relatively) small potatoes, admittedly. Monsanto won both its cases overwhelmingly and the Supreme Court upheld the constitutionality of the ACA,  though it rejected its Medicaid provision. Of far more consequence, however, was Bush v. Gore (1st cartoon from slideshare.net, 2nd from Ann Telnaes), handed down a little over 14 years ago. Most famously, then- Chief Justice Rehnquist and Associate Justice O'Connor had stated their intention to step down if the Republican became President.

More significantly, however, Ginni Thomas- yes, she again- was at the time working at the Heritage Foundation drawing up a list of potential appointees in a Bush Administration. And Justice Scalia's son Eugene was employed at the law firm of Gibson, Dunn, & Crutcher, one of whose partners was Theodore Olson, lead attorney for the former Texas governor in the Supreme Court litigation.  and later Solicitor General in the Bush Administration. (Scalia's son John worked for the firm representing the ticket in the Florida courts.)

When it really counted- when the presidency of the United States and the integrity of the electoral process were at stake- Repub justices decided personal interests came before morality and ethics. Being Democrats, Kagan and Ginsburg probably would recuse themselves were there an actual conflict.  But there isn't, and they won't.

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Confused About Her Role


Speculation about how the Supreme Court will rule on Proposition 8 has led to an examination, cursory though it has been, of past rulings and statements by the Justices which may shed light on how they will rule.  A couple of days ago, analysts saw in remarks made by Justice Ruth Bader Ginsburg at a symposium at Columbia Law School in February of 2012 a hint that the Court may rule against Proposition 8 but allow restrictions in other states to remain. Ginsburg stated of Roe v. Wade

It's not that the judgment was wrong, but it moved too far too fast... The court made a decision that made every abortion law in the country invalid, even the most liberal. We'll never know whether I'm right or wrong ... things might have turned out differently if the court had been more restrained.

In remarks made after a speech at Princeton University in October, 2008, Justice Ginsburg sounded a similar note, contending

The court bit off more than it could chew... The Supreme Court’s decision was a perfect rallying point for people who disagreed with the notion that it should be a woman’s choice.   They could, instead of fighting in the trenches legislature by legislature, go after this decision by unelected judges.

Some Supreme Court judges, especially liberals, view the Constitution as a living document. Conservatives generally hew to an originalist interpretation.  But Justice Ginsburg here is suggesting something quite different than either.  She apparently believes Court findings should be either responsive to the popular sentiment- as she suggested in February, 2012- or one will shape the popular will as she believes appropriate, as she suggested in October, 2008.

In either case, Justice Ginsburg believes rulings of the United States Supreme Court should be subject to a political test.  That is a terrible perspective for a member of the body which is the final arbiter on the U.S. Constitution.  If Justice Ginsburg believes Roe v. Wade was improperly decided, she should say so.  Otherwise, she ought to support the ruling and not suggest otherwise.

When considering an issue, an individual may be less concerned with the intent of the framers, interpretation of the Constitution in a modern context, or the literal meaning of the document than with its political implications.  The name for that individual is legislator.


HAPPY PASSOVER                                                            HAPPY EASTER

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