Harry Blackmun

Supreme Court Has Waged An Extremist Right Wing Attack On Women!

In 1973, Roe V Wade, giving women the right of abortion, was decided by a 7-2 vote, including five Republican Supreme Court Justices: Harry Blackmun, Chief Justice Warren Burger, William Brennan, Potter Stewart, Lewis Powell.

In 1992, Planned Parenthood V Casey, was decided by a 5-4 all Republican vote, including Republican Supreme Court Justices Sandra Day O’Connor, Anthony Kennedy, David Souter, John Paul Stevens, Harry Blackmun.

The draft opinion on abortion, written by Justice Samuel Alito, and said to have a 5-4 vote, was leaked last night, and it is an extremist right wing attack on women, taking away completely the right of abortion, including even having no exceptions for rape, incest, or life of the mother!

If this draft opinion is not changed by the end of the Supreme Court term, it has declared war on a woman’s ability to control her own body, and will lead to increased deaths by botched abortions, as was the case before 1973!

This bombshell report of what is likely to happen flies in the face of more than 70 percent of public opinion being in favor of abortion rights being retained after nearly 50 years of that right being affirmed!

Also, the fact that four of the five Supreme Court Justices in the majority of this opinion were chosen by Presidents who LOST the popular vote–George W. Bush in 2000 and Donald Trump in 2016–is very disturbing!

Also, the Republican denial of the appointment of Merrick Garland in 2016, while allowing the appointment of Amy Coney Barrett in 2020, both election years, but a double standard on appointment, is outrageous!

The concept of established law, “Stare Decisis”, and “precedent” as part of Supreme Court history may be going by the wayside with this extremist Court!

And poor women, and particularly minority women, will be the ultimate victims, and poverty and abuse will become the norm more than ever!

Only about 25 nations ban abortion, and most of the Western world will look at the United States as a pariah on women’s rights, if this Court decision goes through, as there are already plans for the Republicans to try to promote a nationwide ban on abortion if they control both houses of Congress and the Presidency in the future!

The need for the vast majority of women, and men who understand the importance of preserving the rights of women to control their own destiny, to become engaged in the midterm elections six months from now, is urgent!

The Supreme Court Reputation Reaching An All Time Low

The US Supreme Court is in a crisis, as its reputation in public opinion polls, and among Supreme Court “watchers”, is reaching an all time low, not matched since the late 1920s and early 1930s.

The Court has never been as right wing in substance as it is now, since a century ago, and even going further back to the late 19th century Gilded Age era.

The Supreme Court’s reputation was glowing in the time of the Warren Court (1953-1969) and even moving forward to the Burger Court (1969-1986), and still having an image of balance in the era of the Rehnquist Court (1986-2005).

This was due to the reality that many Republican appointees to the Court, including the following, avoided hardline conservativism:

Eisenhower–Earl Warren, William Brennan
Nixon–Warren Burger, Harry Blackmun
Ford–John Paul Stevens
Reagan–Sandra Day O’Connor, Anthony Kennedy
HW Bush–David Souter

These eight Justices made a massive difference in enunication of Supreme Court opinions.

Sadly, George H W Bush’s appointment of Clarence Thomas, and George W. Bush’s selection of Samuel Alito, veered the Court far to the right, and Donald Trump’s three appointments—Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett—have continued that trend.

The fact that Thomas and Kavanaugh have been connected to accusations of sexual harassment, and that Alito, Gorsuch, Kavanaugh, and Barrett were chosen by Presidents who lost the national popular vote, and that Gorsuch took a seat that was meant for Barack Obama’s nominee, Merrick Garland, and that Barrett was confirmed for the Court less than two weeks before the national election—only adds to the fury and disgust felt about the Supreme Court!

This has, reportedly, disturbed Chief Justice John Roberts (2005- ), whose historical reputation is being damaged, as he has moved, personally, from being conservative to attempts to create a moderate balance on the Court. Sadly, it is not working, so there are some rumors that he might retire from the Court after 17 years as its leader, as that is about the norm for most of the 17 Chief Justices in Amerian history, with the exception of John Marshall (1801-1835) and his successor, Roger Taney (1836-1864).

That would be a major step forward, to retire, and allow Joe Biden to pick a Chief Justice, which has not happened for a Democratic President since Harry Truman in 1946!

Supreme Court Once Again Stands Up To Presidential Assertion Of Executive Privilege, And Limits It!

The Supreme Court of the United States for the third time in 48 years has stood up to a President who asserted “Executive Privilege”, and was smacked down by a court including members appointed by the President who was involved in the Court case.

First, we had US V Nixon in July 1974, having to do with Richard Nixon and the Watergate tapes, which the Court unanimously, 8-0, ordered them handed over to the Watergate Special Prosecutor and the House Judiciary Committee. This led within weeks to the resignation of Richard Nixon. Associate Justice William Rehnquist recused himself from the case, appropriately, as he had worked earlier in the Nixon Justice Department, but the other three Nixon appointees, Chief Justice Warren Burger, and Associate Justices Harry Blackmun and Lewis Powell, joined the unanimous decision.

Next, we had Clinton V Jones, 1997, which involved the issue of whether Bill Clinton could be required to testify in a civil trial while in office, a case brought by Paula Jones against Governor Clinton for sexual harrassment. The Court unanimously, 9-0, including his two appointees, Ruth Bader Ginsburg and Stephen Breyer, ruled that he had to give testimony, and this helped to lead to his impeachment in 1998. So there was no immunity from civil law litigation for acts done before taking office, and unrelated to the office.

And now, we have Trump V Thompson, a lawsuit brought by Donald Trump against the January 6 House Committee investigation of the January 6, 2021 Insurrection, in the name of Chairman Bennie Thompson. So documents to show the series of events leading to the Insurrection are now to be made available to the House committee, as it investigates the wrong doing of the 45th President. This is a major victory, and all three Trump Supreme Court nominees—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—voted with the majority 8-1, with only Clarence Thomas in oppostion.

This is a conflict of interest by Thomas, who should have recused himself, as William Rehnquist did in the Nixon case. Since Thomas’s wife was involved in the planning of the January 6 Insurrection, encouraging lawlessness, this should be grounds for removal of Clarence Thomas from the Supreme Court, highly unlikely, but would be appropriate!

The Supreme Court Reputation Has Been Seriously Tarnished, No Longer Seen As Representing Moderation!

The John Roberts Supreme Court reputation has been seriously tarnished, no longer seen as representing moderation!

By deciding to go along with an extremist Texas abortion law, in a one paragraph middle of the night statement, which includes no exceptions for rape or incest, and allowing private citizens to sue anyone engaged in promoting abortion, the Court has done one of the worst ever actions, which will be compared to such other issues as Dred Scott V Sandford (1857) and Plessy V Ferguson (1896), and a small group of other reprehensible decisions!

Chief Justice Roberts himself recognized how terrible this 5-4 decision was, so despite earlier personal expressions of being anti abortion, he joined the three liberals on the Court in opposition.

Roberts knows his own historical reputation has been permanently damaged, as the Court has become dangerously radical right wing extremist, with the three reprehensible appointments by Donald Trump showing their true colors!

The fact that the appointment of Amy Coney Barrett switched the Court balance from what it was under the late Ruth Bader Ginsburg right before the Presidential Election of 2020 is reprehensible!

But also, the fact that Brett Kavanaugh was the second Court Justice to face accusations of inappropriate sexual conduct, along with Clarence Thomas three decades ago, and now they decided the private lives of women, is totally infuriating!

And the fact that Neil Gorsuch gained an appointment after a full year of no replacement of Antonin Scalia, and that Merrick Garland was denied even a hearing as his replacement, makes all three of Donald Trump’s Court appointments questionable and wanting!

It is further proof that the Supreme Court has lost whatever aura it had, as a fair, reasonable body!

To reverse a decision of nearly 50 years, when the tradition of the Court is to uphold legal precedent normally, and that it has such a dramatic effect on more than half the population, is beyond the pale!

If Hillary Clinton had won the Presidential Election of 2016, which this author and blogger and tens of millions of Americans think is the truth, the Supreme Court today would not be in the crisis atmosphere it is in!

It requires an attempt to add members to the Court, because otherwise, the Court is on a tear to the promotion of Fascism clear and simple, and that cannot be allowed to move forward toward ultimate destruction of the Constitution and rule of law!

The idea that two Presidents, George W. Bush and Donald Trump,who lost the popular vote, could add two and three members to the Court respectively, which otherwise would have been appointees of Al Gore and Hillary Clinton, is simply outrageous and unacceptable for the long haul!

It will permanently destroy the reputation of a very evil man, Senate Minority Leader Mitch McConnell, who brought about this travesty!

When one thinks back to the mid and late 1970s, we actually had a 7-2 Republican Court by party affiliation, but it included moderate Republicans, which included statesmen, including William Brennan, Harry Blackmun, John Paul Stevens, and Chief Justice Warren Burger!

So action must be taken to expand the Court, as we are in a constitutional crisis that will only get worse if no action is taken!

Donald Trump Presidency Far Worse Than Richard Nixon Presidency, Which Had Positive Developments

The Presidency of Richard Nixon has long been understood to have been the most dangerous time of Presidential abuse in American history, but now with Donald Trump out of office, it is clear that the 45th President was much more abusive, and much more negative, than the 37th President a half century ago!

Nixon was involved in many illegal actions, culminating in the Watergate Scandal, but more more than just that scandal, and he was facing impeachment and removal from office had he not resigned.

But Nixon also made some major advancements in domestic policy making, signing into law Democratic initiatives that he could have vetoed, and would not have become law, including;

The Environmental Protection Agency
The Consumer Product Safety Commission
Occupational Safety and Health Administration
National Oceanic and Atmospheric Administration

He also supported Affirmative Action, and appointed Associate Justice Harry Blackmun to the Supreme Court, and also, in foreign policy, opened up to mainland China, and accomplished the Strategic Arms Limitation Treaty with the Soviet Union.

Even though Nixon’s negatives, causing more indictments and convictions than any President, were major in other actions, he ranks in the mid to low 20s in ranking among Presidential scholars for his positive initiatives.

Donald Trump ranks near the bottom of listings of Presidents, and was ever more lawless, with many revelations yet to come, and he also set out to destroy much of the Nixon domestic accomplishments. And the fact that he was impeached twice, and lost the popular vote massively twice, adds to his negatives!

So Donald Trump elevates Richard Nixon, and even Presidents seen as primarily disasters, including George W. Bush!

The Unpredictable Supreme Court Due To Republican “Maverick” Appointments

The history of the Supreme Court since 1953 has been one of unpredictability, due to Republican “Maverick” Appointments, who surprise conservatives who thought having a Republican President insured their narrow minded views of the Constitution and the law.

America has been fortunate that every Republican President from Dwight D. Eisenhower to Donald Trump has made an appointment that surprised the nation, and promoted social progress long term.

Eisenhower appointed Chief Justice Earl Warren and Associate Justice William Brennan.

Richard Nixon appointed Chief Justice Warren Burger and Associate Justice Harry Blackmun.

Gerald Ford appointed Associate Justice John Paul Stevens.

Ronald Reagan appointed Associate Justices Sandra Day O’Connor and Anthony Kennedy.

George H. W. Bush appointed Associate Justice David Souter.

George W. Bush appointed Chief Justice John Roberts.

Donald Trump appointed Associate Justice Neil Gorsuch.

So ten appointments in the past two thirds of a century have made a dramatic difference in so many ways, including racial integration, school prayer, abortion rights, ObamaCare, gay rights, and other significant areas.

The Long Term Crisis Of Supreme Court Legitimacy Could Tear This Nation Apart Over Next Few Decades

The US Supreme Court is entering a period which could tear this nation apart over the next few decades.

Here we are in the 21st century, and yet, the Supreme Court could be taking us back to the late 19th century Gilded Age in its constitutional decisions. Now there is a solid five member conservative majority, with the confirmation and swearing in of Brett Kavanaugh, the most contentious nominee with the closest vote in the Senate since Stanley Matthews’ appointment by President James A. Garfield in 1881.

Matthews served nearly eight years on the Supreme Court, having been nominated by President Rutherford B. Hayes, but seen at the time as too much of a “crony” of the President, so his nomination was withdrawn, but resubmitted by President James A. Garfield in 1881, and confirmed by the closest margin in history, 24-23, but with Kavanaugh the second lowest ever vote 50-48. This was the only Supreme Court appointment of Garfield, who had only served four months, when he was shot and mortally wounded by an assassin, and died in September 1881.

The concern about fairness on the part of Brett Kavanaugh however was not the same as Stanley Matthews, who was the majority opinion author in a case involving discrimination against Chinese laundries and their owners in San Francisco, with the case being Yick Wo V. Hopkins, enforcing the Equal Protection Clause of the 14th Amendment. This was a step forward at a difficult time, in the year 1886, although the government had passed into law the Chinese Exclusion Act of 1882.

We could only hope for the kind of open mindedness on the part of Brett Kavanaugh, as occurred with Stanley Matthews’ authorship of this case, which gives him stature in Supreme Court history.

We have had Republican appointments in the past, who turned out to be surprises, including:

Earl Warren and William Brennan, appointed by Dwight D. Eisenhower

Harry Blackmun, appointed by Richard Nixon

John Paul Stevens, appointed by Gerald Ford

Sandra Day O’Connor and Anthony Kennedy, appointed by Ronald Reagan

David Souter, appointed by George H. W. Bush

It would be a miracle at this point if Brett Kavanaugh were to travel the same road.

In a nation becoming more minority over the next decades, and with young people and women and college educated people veering to the left, while the Supreme Court veers dramatically to the Far Right, the question is whether civil disorder is not in the making, creating a crisis atmosphere in the future decades, exactly what America’s enemies are hoping for.

Supreme Court Longevity An Issue, As Recent Justices Have Stayed Much Longer Than Average, Including Contested Nominee Clarence Thomas

In the midst of the controversy over Supreme Court nominee Brett Kavanaugh is the reality of how long he might serve.

There has been a trend whereby recent Supreme Court Justices serve much longer than historically traditional.

Right now, contested Supreme Court Justice Clarence Thomas, who was confirmed in 1991 despite strong testimony of Anita Hill, has served 27 years on the Court, and is already number 24 in longevity of service out of 113 members of the Court in American history. He will be number 17 in two years and number 13 in four years. In May 2028, he would break the all time record of 36 years and nearly 7 months of Justice William O. Douglas, and Thomas would be just about a month short of age 80, and can be seen as likely, if he stays healthy, to accomplish this goal.

If one just looks at the top fourth of all Supreme Court Justices in longevity, a total of 31 out of 113, all 24 years or more of service, we find the following recent Justices, all appointed since the 1950s, are on the list:

John Paul Stevens
William Brennan
William Rehnquist
Byron White
Anthony Kennedy
Antonin Scalia
Clarence Thomas
Ruth Bader Ginsburg
Sandra Day O’Connor
Harry Blackmun
Stephen Breyer
Thurgood Marshall

In the earlier history of the Supreme Court, the average length of service was about 15 years by comparison.

That is why the idea, proposed by this author two days ago, that a future Supreme Court Justice be limited to an 18 year term, allows for turnover, and prevents dominance by an ideological minority for decades, as now is threatened by Brett Kavanaugh, or another extreme right wing appointment by Donald Trump.

Supreme Court Justice Predictability Not So: Nine Cases From Felix Frankfurter To David Souter

As the hearings continue on the nomination of Circuit Court Judge Brett Kavanaugh to the Supreme Court, the question has arisen over whether Supreme Court Justices are predictable in their evolution on the Court.

The argument is that most Supreme Court Justices are “pegged” when they are considered for the Court, and do not disappoint the President and the party which nominated them for the Court.

But history actually tells us that there are quite a few exceptions to this perceived thought.

Felix Frankfurter (1939-1962), appointed by Franklin D. Roosevelt, migrated from an earlier liberal, almost radical view, to a clearly conservative view, disappointing many Democrats in the process.

Earl Warren (1953-1969), appointed Chief Justice by Republican Dwight D. Eisenhower, and thought to be a conservative oriented person, turned out in the mind of many Republicans “a flaming liberal”, totally surprising Eisenhower and many pleased Democrats and liberals.

William Brennan (1956-1990), appointed by Eisenhower, and a rare Catholic on the Court, and thought to be a conservative, turned out to be even more liberal in his jurisprudence, and lasted twice as long as Warren on the Supreme Court, stunning many conservatives and Republicans.

Byron White (1962-1993), appointed by John F. Kennedy, was thought to be a liberal, but was a consistent conservative in his years on the Court.

Harry Blackmun (1970-1994), appointed by Richard Nixon, started off as a conservative, along with his so called “Minnesota Twin” and colleague, Chief Justice Warren Burger, but veered sharply left more and more, diverging dramatically from Burger as the years went by, and honored by liberals as a great Supreme Court Justice.

John Paul Stevens (1975-2010), appointed by Gerald Ford, was thought to be a moderate conservative, but dramatically moved left in his jurisprudence, and remained on the Court for 35 years, third longest of any Justice in history, retiring at age 90, but still active at age 98 (the longest lived Justice ever), and still promoting liberal viewpoints.

Sandra Day O’Connor (1981-2006), appointed by Ronald Reagan as first woman on the Court, turned out to be far less conservative, veering toward the center, and seen as a balance on the Court, unpredictable during her tenure on the Court.

Anthony Kennedy (1988-2018), appointed by Reagan, and just retired, thought to be a hard line conservative, turned out to be the second “swing” vote with O’Connor, and then the true “swing” vote on the Court, joining the liberal side one third of the time.

David Souter (1990-2009), appointed by George H. W. Bush, was thought of as moving the Court to the Right, after William Brennan retired, but many Republicans and conservatives were severely disappointed in his unpredictability, and often his siding with the liberal view on many issues, more than one would have expected.

Notice, however, that seven of these nine cases, all but Frankfurter and White, were of Republican appointments that turned out to be much more “liberal” than one might have imagined, with only Frankfurter and White turning out to be more “conservative” than perceived at the time of their nominations to the Supreme Court.

Chief Justice John Roberts To Become The New Balance On The Future Supreme Court?

Chief Justice John Roberts has been on the Court for 13 years now, and he is generally perceived as a conservative.

But he has surprised some conservatives, as when he kept ObamaCare (the Affordable Care Act) alive in 2012.

Also, Roberts has often stated by the doctrine of “Stare Decisis”–to stand by things decided”–although he has not been consistent on this over the years.

The odds of Roberts siding with the liberals on the Court for the image of the Court named after him as Chief Justice, is a thin measure of what kind of balance he might present on the future Supreme Court.

It seems likely that on balance, he will be “number 5”, in the middle, but that middle will be much farther to the Right than Anthony Kennedy or Sandra Day O’Connor represented.

But then again, Justices have surprised their Republican Presidents who appointed them, as with Earl Warren and William Brennan under Dwight D. Eisenhower; Harry Blackmun under Richard Nixon; John Paul Stevens under Gerald Ford; O’Connor and Kennedy under Ronald Reagan; and David Souter under George H. W. Bush.

The best estimate is that no one should count on John Roberts avoiding “his” Court from being regarded as the most right wing, conservative Court since the time of Warren G. Harding. Calvin Coolidge, and Herbert Hoover nine decades ago, before the Great Depression and New Deal began the transformation of constitutional law.