Supreme Court or Supreme Legislature?

 

By David K. Shipler 

                The death of Justice Ruth Bader Ginsburg and the immediate swirl of politics surrounding a choice of her successor ought to remind Americans of what they are losing in their stressed democracy. The Supreme Court, designed to transcend bitter political divides, now reflects them instead. This is obviously the doing of the justices themselves. But it is also the sin of presidents and senators who nominate and confirm them.

 The judiciary has been the only one of the three branches of government of late to function with reasonable responsibility. The executive branch under President Trump has defied the law, induced chaos, promoted ethnic hatred, and ignored expertise from its own scientists and generals and diplomats. The legislative branch has deadlocked in divisive bickering over police reform, voting rights, prescription drug costs, renewed economic aid during the pandemic, and a host of other urgent matters. Federal judges, meanwhile, have steadied the ship on numerous occasions—though not all—by restraining some radical efforts to curtail immigration, abortion rights, and voters’ access to the ballot box.

But the judicial branch has never been entirely apolitical, if politics means the advocacy of certain policies over others, whether in the law or in social values. Judges ascend to the bench carrying their particular legal and social philosophies. The question is how much they can put aside in the interest of upholding precedent, interpreting the law, and applying the principles of the Constitution. The question is how much they can evolve over years in those exalted positions. And the question is not whether, but to what extent, the courts stand resilient against the vicissitudes of politics and the commands of ideologies.

It is no accident that countries careening toward authoritarianism—Hungary and Poland come to mind—are compromising the independence of their judiciaries, and that longstanding dictatorships—China and Russia, for example—never had true judicial independence in the first place.

As many politicians from Trump on down seek judges whose opinions echo their own, they risk scoring short-term victories at the cost of eroding what the Framers erected as a precious pillar of pluralistic democracy. The latest example is the unseemly struggle over Ginsburg’s replacement.

Trump vs. Workers

By David K. Shipler

Making America Cruel Again, Part 2 of an Occasional Series

            One of the many peculiarities of Donald Trump’s presidency is how deftly he stabs workers in the back while making many of them think he’s on their side. He’s given “I’ve got your back” a new meaning.

            His administration is dismantling environmental protections for laborers, decimating job safety regulations, and attacking the livelihoods of many of them by triggering tariffs on US goods going to Canada, the European Union, and China. Most of this destruction can be repaired in time once Democrats return to power in the White House and Congress. But more durable damage is being done by the Supreme Court, and there is surely more to come as Trump tees up for his second court appointment.

His first pick, Neil Gorsuch, is remarkably hostile to workers’ rights, and he has been so since before he ascended to the Court. He wrote the 5-4 majority opinion this term in Epic v. Lewis, stripping employees who are forced to sign arbitration agreements from any recourse in the courts over unfair labor practices. And he joined the 5-4 majority in Janus v. American Federation of State, County, and Municipal Employees, stripping public employees’ unions of their ability to collect dues from all workers who profit from the salaries, vacations, health insurance, and other benefits negotiated through collective bargaining.

Gorsuch’s position should have come as no surprise. In a 2016 dissent as an appeals court judge in the Tenth Circuit, he went through bizarre legal acrobatics to uphold the firing of a truck driver who opted to leave his cargo rather than freeze to death on a winter night in Illinois.

When the brakes on his trailer froze, the driver, Alphonse Maddin, phoned for help from his company, Trans Am Trucking, and waited several hours for a repair truck. He was practically out of fuel, the auxiliary power heater for the cabin was broken, and he began to show dangerous signs of succumbing to the subzero temperatures. His cousin, who called him, said that his speech was slurred. His feet felt numb, and breathing was difficult. Finally, in desperation, he unhitched the tractor from the trailer and drove toward safety, returning 15 minutes later after being informed that the repair truck had arrived. He was then fired.