Praise for The Hidden History of the Supreme Court and the Betrayal of America

“Hartmann looks at the Supreme Court today as a tool of the right and their corporate interests. He reminds us that the Declaration of Independence promises ‘life, liberty, and the pursuit of happiness,’ not ‘property,’ and urges ‘we the people’ to lawfully subject SCOTUS to democratic governance.”

—Harvey J. Kaye, Professor of Democracy and Justice Studies, University of Wisconsin–Green Bay, and author of Thomas Paine and the Promise of America

“Thom Hartmann has created an elegant historical road map that reveals how one of the most influential judicial bodies on the planet evolved into such a powerful and mysterious entity.”

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THE

HIDDEN HISTORY of

THE

SUPREME

COURT

AND THE BETRAYAL OF

AMERICA

THOM HARTMANN

The Hidden History of the Supreme Court and the Betrayal of America

Copyright © 2019 by Thom HartmannAll rights reserved. No part of this publication may be reproduced, distributed, or transmitted in any form or by any means, including photocopying, recording, or other electronic or mechanical methods, without the prior written permission of the publisher, except in the case of brief quotations embodied in critical reviews and certain other noncommercial uses permitted by copyright law. For permission requests, write to the publisher, addressed “Attention: Permissions Coordinator,” at the address below.

Berrett-Koehler Publishers, Inc.1333 ...

CONTENTS

INTRODUCTION: A Rebellion against the Monarchy

In the Beginning . . .

A Suicide Pact

Corporate America Seizes the Court

PART ONE: The Hidden History of Judicial Review

The Founders’ Vision

The Glue That Binds Us Together

A Bold Experiment

Debating the Supreme Court

Where Does the New Buck Stop?

The Power Grab

Whoever Controls the Law Controls the Country

Jefferson: “The People Themselves”

Who Decides What the Constitution Means?

The Powell Memo and the Court

Partisan Politics in “Original Intent”

Originalism Is Joined by Textualism

One True Spokesman

Clear Preferences versus Ambiguities

The Corruption of the Court Itself

Fossil Fuels Seize the Court

Right-Wing Takeover and Corporate Handouts

The Constitution Afflicts the Afflicted and Comforts the Comfortable

The Constitution Protects Property and Its Owners

The Constitution Protects Killers and Slave Owners

The Constitution Prefers Property Rights to Human Rights

The Constitution Protects Takers, Not the Taken

PART TWO: The Hidden History of the People and the Court

The Supreme Court versus Labor

Haymarket and Allgeyer: The Public Turns against Labor and the Court Follows

The Great Depression: The Public Embraces Labor and the Supreme Court Follows

FDR Tries to Pack the Supreme Court

The Court Devastates Union Rights

The Supreme Court versus Civil Rights

“Separate but Equal”: Created by the Court, Ended through Popular Struggle

The Road to Plessy

Charles Houston and the Long Slog to End Jim Crow

Brown: The Supreme Court Overrules Itself

How Roe Empowered the Right

The Supreme Court and the Environment

Local Zoning Law as Early Environmental Law

Protecting the Environment Goes Federal

The Planet’s Future on Trial

In Nature’s Trust

Our Children’s Trust

A New Hurdle to Climate Justice

How Communities Fight Back

How Idealogues and Partisans Seized the Court: From Nixon to Trump

Reagan and the Court

George H. W. Bush Avoids Prosecution

George W. Bush and the Court

An Astroturf Resistance in Florida

Trump and the Court

If We’d Had Clean Elections

PART THREE: To Save the Planet, Democratize, and Modernize the Supreme Court

Regulating the Number of Justices on the Court

Term Limits

Cameras in the Courtroom

The Constitutional Amendment Remedy for an Out-of-Control Court

The Last Resort: Strip the Courts

The Roberts Plan to Strip the Courts

Court Stripping in the 20th Century

A Planetary Emergency

Taking Democracy Back from the Court

NOTES

ACKNOWLEDGMENTS

INDEX

ABOUT THE AUTHOR

INTRODUCTION

A Rebellion against the Monarchy

The 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, [then] 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 [Supreme Court] tribunal.

—Abraham Lincoln, from his first inaugural speech, explaining why he refused to recognize the Supreme Court’s Dred Scott decision

From the time Americans wake up in the morning, throughout their days (work or play), right through a full night’s sleep, everything ...

PART ONE

The Hidden History of Judicial Review

To understand the Supreme Court, one must understand the zeitgeist of the Founding Fathers’ generation and the philosophical history that led the founders and framers to create the Court itself.

Part 1 of this book looks at the founders’ intents and concerns—and how quickly the Court seized the power of judicial review to become a nearly despotic branch of government. The conclusion of part 1 explores how one man sparked a right-wing movement to seize control of the American government—including the outsized power of the Supreme Court.

THE FOUNDERS’ VISION

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.

——James Madison

In May 1787, a group of men in Philadelphia began to gather to debate and discuss what would become the template for the new United States of America: a new constitution. The youngest was New Jersey’s 26-year-old Jonathan Dayton (although James Madison was in his 30s, as were several other delegates), and the oldest was Pennsylvania’s Ben Franklin, who at 81 was so infirm that he had to be carried to and from the meetings.

Five men who were not in the room influenced the convention tremendously. Thomas Jefferson was stationed in Paris as the US envoy to France; John Adams was in London as our envoy to the UK. But even more important, Thomas Hobbes was 108 years dead, John Locke had been dead for 83 years, and Baron de Montesquieu had been dead for 32 years.

Thomas Hobbes tutored King Charles II and wrote Leviathan, which triggered the earliest stages of the Enlightenment, and also the big split away from monarchy and toward liberal democracy.

Hobbes’s ideas, with their faith in hierarchy and patriarchy, also formed a basis for today’s conservative movement. He believed that the essential nature of humans was evil (because, the Bible tells us, we’re all “born of woman”) and that man’s “original state” was a life of continual warfare and fear: “During the time men live without a common power to keep them all in awe . . . [they have no] arts; no letters; no society; and which is worst of all, continual fear, and danger of violent death: and the life of man, solitary, poor, nasty, brutish and short.”

The only escape from our brutish and fearful existence in the state of nature, according to Hobbes, was under the iron-fisted institutions of church or state.

This is still the primary conservative narrative: without the restraining force of church or state, human life will devolve into chaos. A strong father figure, the story goes, is necessary, both in the form of leaders and rulers, and in the form of a tutelary (to use Alexis de Tocqueville’s word) state.

This view also led to the formation of the Supreme Court.

THE GLUE THAT BINDS US TOGETHER

Two generations after Hobbes, in the 1600s, King James II’s tutor, John Locke, saw things differently. He saw balance and democracy in nature and believed that humans could live in the then-modern world without submitting to some “dear leader.” Instead, he wrote that humans could live “in society.” He described it as the collection, both biological and voluntary, of people living in proximity and united for a common goal with a shared philosophy of social organization.

Locke’s Two Treatises of Government tore the “divine right” argument1 for ruling to pieces in 1690, making Locke famous and vaulting him to the front of the philosophers who were arguing for something more egalitarian to replace royalty.

His Second Treatise laid out the basis of democracy, as he saw it, and set the stage for today’s modern liberal democracies and the overall arc of the US Constitution.

Locke argued against the king’s supreme power over person and property, declaring, “Man being born, as has been proved, with a title to perfect freedom . . . hath by nature a power . . . to preserve his property, that is, his life, liberty and estate, against the injuries and attempts of other men.”

Nearly a century later, Locke’s language informed Thomas Jefferson’s drafting of the Declaration of Independence. Because Locke conceived of law as being above any individual (such as a king), his argument called for a court system.

Another towering figure who influenced the creation of the Supreme Court was Charles-Louis de Secondat, aka the Baron de La Brède et de Montesquieu. Long gone but still well remembered, he was simply referred to by the founders and framers as Montesquieu.

Montesquieu argued in his 1748 The Spirit of Laws that egalitarian, democratic societies could work,2 and Jefferson wholly embraced Montesquieu’s ideas about the separation of powers within a government.

One could argue that Montesquieu was the godfather of the Supreme Court.

A BOLD EXPERIMENT

Delegates also considered the form of democratic government held by the Iroquois Confederacy, as evinced by Ben Franklin, who wrote to his partner in the publishing business in New York, James Parker:

It would be a very strange Thing, if six Nations of Ignorant Savages should be capable of forming a Scheme for such an Union, and be able to execute it in such a Manner, as that it has subsisted Ages, and appears indissoluble; and yet that a like Union should be impracticable for ten or a Dozen English Colonies, to whom it is more necessary, and must be more advantageous; and who cannot be supposed to want an equal Understanding of their Interests.3

The Iroquois had a court system that, in some ways, also inspired our Supreme Court.

Jefferson knew the Indians of Virginia well; as a young boy and early teen, he had traveled from remote tribe to tribe with his father, who spoke several of their languages, while his father was mapping the state. In his 1785 Notes on Virginia, Jefferson vigorously defended the Iroquois, and the Native Americans in general, against those Hobbesians who argued that they were uncivilized brutes.

Jefferson dismissed the racist rhetoric of the day, explaining, “In short, this [uncivilized] picture is not applicable to any nation of Indians I have ever known or heard of in North America.” Favoring history over racist myths, Franklin and Jefferson each looked to aspects of the Iroquois Confederacy to inform our own Constitution.

At the time, most of the contemporary “civilized” world still operated with the assumption of the divine rights of kings: the idea of private ownership of property as a normal thing for white working men was only about a century old (and wouldn’t appear for women until the 20th century).

After the failure of the Articles of Confederation to hold the nation together, the framers knew that there were lessons to be learned from scholarly Western sources, such as the ancient Greeks and Romans, but also from more novel sources, including the Iroquois elders they invited in for the opening days of the Convention.

These men were embarking on a bold experiment.

DEBATING THE SUPREME COURT

From the founding of our republic in 1789 until 1803, the Supreme Court was only the final court of appeals. After all, the buck had to stop somewhere.

In 1788, when James Madison and Alexander Hamilton published a long series of newspaper articles promoting to the American people the idea that they should ratify the Constitution (which happened in 1789), Hamilton took on the job of selling Article III, which created the court system, including the Supreme Court.

In that sales pitch, Hamilton, on May 28, 1788, wrote in a newspaper article we today call the Federalist, no. 78, that the courts, including the Supreme Court, were the weakest of the three branches created by the Constitution.

“[T]he judiciary is beyond comparison the weakest of the three departments of power,” he wrote, adding in the same sentence that “it can never attack with success either of the other two [branches].”

He even footnoted that sentence with a quote from the famous French judge Montesquieu, who had first clearly articulated the idea of a separation of powers between governmental branches as a check and balance. Hamilton’s footnote read, “The celebrated Montesquieu, speaking of them, says: ‘Of the three powers above mentioned, the judiciary is next to nothing.’”

He explained why the Court’s judges had lifetime appointments and the judiciary had its own section of the Constitution, writing in the Federalist, no. 78, “[F]rom the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches.”

The lifetime appointments and Montesquieu’s “separation of powers” would insulate the Court from being “overpowered, awed, or influenced” by the president or Congress.

But some Americans (and many of the newspapers of the day) weren’t convinced; the idea of lifetime appointments and being a branch of government independent from the other two sounded too much like the European monarchies that the colonists had just fought a revolutionary war against.

“What would prevent the Supreme Court from rising up and taking over the country?” they asked. “You’re concentrating too much power in one branch!” others essentially said.

So, a month later, in June 1788, Hamilton published what is now known as the Federalist, no. 81, answering directly their objections, again arguing that the Supreme Court couldn’t make laws and couldn’t strike down laws.

First, he cited (rather accurately) the objections to a Supreme Court in the Constitution that he was pushing, noting that they were concerned that judges—dangerously!—might interpret the Constitution in a way of their own personal choosing.

The arguments, or rather suggestions, upon which this charge is founded, are to this effect: “The authority of the proposed Supreme Court of the United States, which is to be a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the SPIRIT of the Constitution, will enable that court to mould them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body. This is as unprecedented as it is dangerous [emphasis Hamilton’s].”

Having set up the objections/concerns, he then answered those doubters in the next paragraph.

In the first place, there is not a syllable in the plan under consideration which DIRECTLY empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State.

He also pointed out, in the next paragraph, that even if the Court were to rule on the meaning of a poorly written law (or even corruptly distort a law’s meaning) in deciding a case, the legislature could simply write a new law clarifying what they meant and the new law would apply for the future: “A legislature, without exceeding its province . . . may prescribe a new rule for future cases.”

WHERE DOES THE NEW BUCK STOP?

Still, people were concerned that the Court would have too much power. What if they started striking down laws passed by Congress and signed by the president, both elected by We the People?

Hamilton’s answer in the Federalist, no. 81, was that the Constitution itself prevented such an abuse of power, because the Supreme Court was explicitly subordinate to Congress.

We have seen that the original jurisdiction of the Supreme Court would be confined to two classes of causes, and those of a nature rarely to occur [arguments between the states, and treaties with other nations]. In all other cases of federal cognizance, the original jurisdiction would appertain to the inferior tribunals; and the Supreme Court would have nothing more than an appellate jurisdiction, “with such EXCEPTIONS and under such REGULATIONS as the Congress shall make.”

If that wasn’t clear enough, in the next sentence Hamilton essentially repeated himself.

To avoid all inconveniencies, it will be safest to declare generally, that the Supreme Court shall possess appellate jurisdiction both as to law and FACT, and that this jurisdiction shall be subject to such EXCEPTIONS and regulations as the national legislature may prescribe. This will enable the [rest of the] government to modify it in such a manner as will best answer the ends of public justice and security.

Yet, in the Federalist, no. 78, Hamilton had essentially endorsed judicial review.

The interpretation of the laws is the proper and peculiar province of the courts.

A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Having basically said that the Supreme Court actually has more power than the legislative or executive branches (contradicting his earlier “most harmless branch” claim), Hamilton tried to walk it back with the slight that “the people” is where the real power is, not the legislature, and the Court is ultimately representing “the people” who collectively elected the men in the states who ratified the Constitution. He noted in the Federalist, no. 78:

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.

Hamilton had pulled off a remarkable feat: he gave each side what they wanted, while trying to minimize either’s effect on the other. And right up until 1803, nobody was really sure how much power the Supreme Court had.

Meanwhile, the rest of the framers (and their peers among the founding generation) were all over the map on what they thought the judiciary powers outlined in the Constitution meant, and on whether they wanted the courts to have such vast and largely unchecked and undemocratic power as represented by judicial review.

THE POWER GRAB

June 28, 2012, was a day of high drama in Washington, DC. With more sun than clouds, it was a bright and hot day, over 90 degrees, as people lined up outside the Supreme Court to hear the fate of President Barack Obama’s signature legislative effort, the Affordable Care Act. Across the nation, people with preexisting conditions and low-income working people hoping for free access to Medicaid held their collective breaths.

The Supreme Court didn’t disappoint. The decision, with all four of the liberal justices joined by Chief Justice John Roberts, ruled that the Act itself was, in fact, constitutional, with a couple of caveats.

The first was that they justified their decision by determining that the penalty that uninsured people must pay was actually a tax, and therefore the Act was within the taxing powers of Congress and thus constitutional.

The second was that the Medicaid expansion, which would have covered every low-income working person in the country (almost half of all workers), couldn’t be forced on the states but only adopted with the consent of the states, one at a time.

Nobody doubted that the Supreme Court had the power to strike down the law in its entirety, or to uphold it entirely, or even to rewrite parts of it or parse it into pieces, which is what happened.

Similarly, nobody questioned why the most powerful branch of government, the one with the final say over pretty much everything, was also the one that never had to submit itself to we the people in an election or suffer any other form of accountability.

Although President Obama—a constitutional law professor earlier in his life—had already signaled that he’d go along with whatever the Court ruled, two prior presidents, Jackson and Lincoln, had refused to comply with orders of the Court. They’d held the opinion that each branch of government was able to determine its own perspective on the constitutionality of laws, given that each branch was supposed to be “coequal” and the members of each took an oath to uphold the Constitution.

In the Federalist, no. 49, for example, the father of the Constitution, James Madison, wrote, “The several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.”

Challenging the power of the Supreme Court has largely been the province of the hard right in the United States, starting with the Court’s flip to go along with Roosevelt’s New Deal in 1937, and flaming into full flower in response to Brown v. Board of Education and Roe v. Wade.

But with a right-wing takeover of the Court in the late 20th and early 21st centuries, under dubious circumstances (detailed later in this book), America is moving back to the perspective on the Court that was widely held between 1933 and 1937—that it was out of control and may need to be tamed.

The Constitution, in Article VI, Section 2, established constitutional supremacy, saying, “This Constitution, and the Laws of the United States . . . shall be the supreme Law of the Land.” It thus, unambiguously, gave the Supreme Court the power to overturn state laws and state courts. As Chief Justice John Marshall (1801–35) wrote in the McCulloch v. Maryland decision (1819), “The [federal] government of the Union, though limited in its power, is supreme within its sphere of action.”

This establishment of federal supremacy and judicial review over state laws wasn’t particularly controversial.

But when the Supreme Court, in 1803, ruled that it had the power to overturn acts of the federal Congress, signed into law by the president, all hell broke loose, at least in the mind of President Jefferson, and the echoes continue to this day.

They provide us with context, arguments, and ways to remedy some of the recent years’ most egregious excesses of the Supreme Court.

WHOEVER CONTROLS THE LAW CONTROLS THE COUNTRY

Article III of the Constitution creates the federal judiciary and lays out how it operates and what its powers are. Article III, Section 2, deals specifically with the Supreme Court and explicitly puts the Court—the Supreme Court—under the “regulation” of Congress. Congress is also given the power by the Constitution to write laws that specify “exceptions” when the Supreme Court can’t second-guess them.

Article III, Section 2, reads simply:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make [emphasis mine].

In other words, the framers empowered the Supreme Court for two main reasons: first, to hear disputes between the United States and foreign countries, and between the individual states; second, to be the final court of appeals.

But nowhere does the Constitution explicitly say that the Supreme Court has the power to decide what is or is not “constitutional,” or to strike down (or make or modify) laws or policies for the United States.

So where did the concept of judicial review come from? How did the Supreme Court (and even lower courts) get the power to review laws to decide what laws are constitutional and what laws are to be thrown out?

It started with a battle between Thomas Jefferson and John Adams, which was carried out in proxy by the war between Adams’s Federalists (today we’d call them conservatives) and Jefferson’s Anti-Federalists (today we’d call them liberals). Between the time when Jefferson won the election of November 1800 and the time he took office in March 1801, President Adams flooded the federal bench with brand-new positions and brand-new hyper-Federalist judges in an aggressive court-packing scheme.

Jefferson thought he found a loophole in the Judiciary Act of 1789: if a new judge had not received his judicial appointment papers physically and in person, he couldn’t take a seat on the bench. When Jefferson entered the White House, he discovered that Adams had been so hasty in his court-packing plan that there was still a large pile of appointments waiting to be delivered.

Secretary of State James Madison had the legal authority and responsibility to deliver the papers, and Jefferson instead ordered Madison to throw them away, thereby depriving the Adams-appointed judges of their seats on the new Adams-created courts.

One of the appointed judges, William Marbury, sued Madison for not delivering his papers, and the case went straight to the Supreme Court.

In the resulting 1803 case of Marbury v. Madison, the Supreme Court found that the judiciary has the power to strike down any law passed by Congress and signed by the president.

Chief Justice John Marshall, appointed by Adams, was a vigorous Federalist, a distant relative of Jefferson, and a political archenemy of Jefferson. He wrote in his decision, “It is emphatically the duty of the Judicial Department to say what the law is.”

Marshall’s ruling declared unilaterally that the Court’s powers included interpreting the meaning of the Constitution and applying that interpretation to federal legislation.

After empowering the Court with judicial review, Marshall ruled in Jefferson and Madison’s favor. Marshall first ruled that Madison had broken the law by refusing to deliver the papers. But the Court then struck down the portion of the Judiciary Act that required the papers to be delivered, leaving Marbury out in the cold.

It horrified Jefferson that Marshall had so intruded into the legislature’s domain by striking down a law that Congress had passed and President George Washington had signed. Jefferson immediately wrote to John Adams’s wife, Abigail, a confidante:

The opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the legislature and executive also, in their spheres, would make the judiciary a despotic branch.

Those who control the law, Jefferson was saying, control the nation. In a single stroke, Marshall had put himself and his fellow justices above both Congress and the president.

Jefferson later protested to his old friend, Virginia Supreme Court Justice Spencer Roane,

If this [Marbury] opinion be sound, then indeed is our constitution a complete felo de se [suicide pact]. . . . The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary.4

JEFFERSON: “THE PEOPLE THEMSELVES”

Supporters of judicial review argue, “If we don’t have the Supreme Court deciding which laws are constitutional and which are not, then who should?”

To that, Jefferson had a simple answer: “The people themselves” through their elected officials in Congress. Congress, after all, has the power of both Exception and Regulation of the Supreme Court in Article III, Section 2, of the Constitution.

In 1823, Jefferson explained to his friend the Marquis de Lafayette how the Court had usurped power directly from the people: “The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress, or of two-thirds of the States. Let them decide to which they mean to give an authority claimed by two of their organs [branches of government].”

Jefferson was arguing that because the Constitution represents the will of the people, constitutional questions are supposed to be answered by the people’s representatives during constitutional conventions, as laid out in the Constitution itself.

In Jefferson’s mind, that was how a democratic republic worked. With Marshall’s invocation of judicial review, Jefferson thought America had become a constitutional monarchy, with the Supreme Court wearing the crown.

Jefferson’s rage seemed to restrain the Court.

From 1803 until long after his death, the Court did not exercise judicial review in any way that alerted the public, did not strike down any significant laws, and did not create any national doctrines (although it did often refer to the Constitution).5

It wasn’t until long after Jefferson and Marshall were both dead that Chief Justice Roger Taney sought to use the Court’s power to settle the long-standing national debate about slavery in the United States. Taney’s 1856 decision in Dred Scott v. Sandford, that African Americans everywhere in the United States were merely property, reflected his own slave-owning upbringing, and his constitutional interpretation reflected that of the Southern slave-owning framers.

Abraham Lincoln, an increasingly famous Republican political operative at the time, decried Taney thoroughly for it in a now-famous speech on June 26, 1857.6

Taney’s 1856 interpretation didn’t solve anything, and South Carolina seceded from the United States just four years later, kicking off the Civil War.

Even before Lincoln became president, he refused to recognize the judicial review component of Dred Scott, and he declared in 1857, “We think the Dred Scott decision is erroneous.”

WHO DECIDES WHAT THE CONSTITUTION MEANS?

Norman Solomon et al. compiled from Reuters and publicly available polling sources in October 2018 the following:

• 76 percent of the US public supports higher taxes on the wealthy.7

• 70 percent of the US public supports Medicare for all.8

• 59 percent of the US public supports an $15 minimum wage.9

• 60 percent of the US public supports expanded tuition-free college.10

• 69 percent of the US public supports abortion rights.11

• 94 percent of the US public supports an Equal Rights Amendment.12

• 59 percent of the US public supports stricter environmental regulation.13

The five Republican-appointed justices on the Court as of this writing are hostile to each of these positions. The views of these members of the Court are stuck in 1930, while the American people have fully moved into the 21st century. This contradiction is, on its own, nothing less than a constitutional crisis.

The Court is, in many ways, forcing America to live under an 18th-century form of government, recognizing property rights for humans but not recognizing human rights more broadly.

For example, while we no longer countenance slavery,14 we have private prisons that the Court has said can be run, essentially, like plantations. While we say we’ve ended voting discrimination, people of color cannot vote and fully participate in society in parts of America15 because the Supreme Court gutted the Voting Rights Act in 2013’s Shelby County v. Holder decision.16 While America has come a long way on workers’ rights, the Court has severely restricted employees’ right to sue when discriminated against or harmed in the workplace and their right to form a union.17

Americans also realize that the framers couldn’t have imagined many of today’s issues and may not have been sympathetic, for example, to same-sex marriage, abortion rights, or universal health care and Social Security (although some, like Thomas Paine, advocated for the latter two).

Today, another collision confronts America as more and more progressive politicians attain national office and push for more and more progressive policies.

Will the current Supreme Court—dominated by originalist Republican-appointed judges—allow for progressive legislation to move America forward? Or will the Court restrain Congress, the president, and the American people by handing down arcane interpretations of the Constitution to prevent popular policies?

The story of a 1971 memo by Lewis Powell sheds some light on what Americans are up against.

THE POWELL MEMO AND THE COURT

The modern-day corruption of the Court has its roots deep in a memo prepared in 1971 by Lewis Powell. The memo outlined how very wealthy donors and big business could take over both US public opinion and, eventually, the US government itself. And just months after Powell delivered it to his friend and a director of the US Chamber of Commerce, Eugene Sydnor Jr., President Nixon appointed Powell to the Supreme Court.

Ten months after the Senate confirmed Powell to the Court, the public learned about the Powell Memo (the actual written document had the word “Confidential” at the top—a sign that Powell himself hoped it would never see daylight outside of the rarefied circles of his rich friends).18 By then, it had found its way to the desks of CEOs all across the nation and was already being turned into real right-wing actions, policies, and institutions.

The FBI didn’t find the memo during its investigation into Powell during his Senate confirmation; investigative journalist Jack Anderson did, though, and he exposed it in a September 28, 1972, column titled, “Powell’s Lesson to Business Aired.”19

Noting when the memo was discovered, Anderson wrote, “Senators . . . never got a chance to ask Powell whether he might use his position on the Supreme Court to put his ideas into practice and to influence the court in behalf of business interests.”

A section of Powell’s memo, “Neglected Opportunity in the Courts,” detailed the strategy that has largely been followed to this day.20 Noting the Court’s power, Powell wrote,

Under our constitutional system, especially with an activist-minded Supreme Court, the judiciary may be the most important instrument for social, economic and political change. . . . This is a vast area of opportunity for the Chamber, if it is willing to undertake the role of spokesman for American business and if, in turn, business is willing to provide the funds.

Laying out specifics, Powell added,

The Chamber would need a highly competent staff of lawyers. In special situations it should be authorized to engage, to appear as counsel amicus in the Supreme Court, lawyers of national standing and reputation. The greatest care should be exercised in selecting the cases in which to participate, or the suits to institute. But the opportunity merits the necessary effort.

The wealthy heeded Powell’s message, fundamentally transforming America.

In 1971, only 175 companies had registered lobbyists. By 1982, there were nearly 2,500. Today there are tens of thousands.

The American Legislative Exchange Council (ALEC) was founded in 1973. So, too, was the Heritage Foundation. And in 1977, the CATO Institute was founded, first as the Charles Koch Foundation, and then renamed a few years later as CATO.

To Powell, nothing was more important than freeing the very rich and their corporations from the shackles of regulation that prevented them from outright owning politicians and the political process.

In the 1976 Buckley v. Valeo decision, the Court ruled that political money is speech, implying that those who have more money have more free speech in our political system. That same year, in United States v. Martin Linen Supply Co., the Court gave corporations Fifth Amendment protections against double jeopardy. And in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, the Supreme Court ruled that advertising is a protected form of free speech.21

In 1978’s First National Bank of Boston v. Bellotti, Lewis Powell himself authored the decision that overturned state restrictions on corporate political spending, saying such restrictions violated the First Amendment.

Justices White, Brennan, and Marshall dissented: “The special status of corporations has placed them in a position to control vast amounts of economic power which may, if not regulated, dominate not only our economy but the very heart of our democracy, the electoral process.”

But they had lost the vote, and political corruption of everything from local elections to the Supreme Court itself was now virtually assured.

Then came the Federalist Society, which built a nationwide network of jurists, attorneys, legal scholars, and politicians to indoctrinate a new generation’s legal system with Powell’s mantra: Corporate personhood is real, money is speech, democracy is mob rule, and organized money should always have privilege over organized people. The Federalist Society was founded in 1982 with millions of dollars in funding from the Koch-connected Bradley Foundation.22

Madison’s concept that “government should have a common interest with the people” had finally been put down like a rabid dog.

PARTISAN POLITICS IN “ORIGINAL INTENT”

The immediate goal of the Powell Memo was to have large corporations and billionaires fund an ideological machine that could capture the US government. The short-term goal was to put a halt to the wave of environmental and consumer protections championed by Rachel Carson and Ralph Nader (named in the document). The system that Powell advocated instead was, essentially, an oligarchy.

Once Powell joined the Supreme Court in 1972, he dutifully championed the “right” of oligarchs to own politicians in the 1976 Buckley v. Valeo and 1978 First National Bank of Boston v. Bellotti decisions.

Ever since those successes, Republican politicians have worked hard to get more Lewis Powell types on the Supreme Court: men who would always defer to corporate power and great wealth, and who would always work to turn America into even more of an oligarchy.

The first step in this process was to change the language that judges used to describe their pro-billionaire and pro-corporate judicial philosophy.

In 1938, Justice Hugo Black pointed out that the 14th Amendment—part of the post–Civil War trilogy that was supposed to free the slaves and grant equal protection under the law to all people—was mostly being used at the Supreme Court to argue for corporate rights:

Of the cases in this court in which the Fourteenth Amendment was applied during its first fifty years after its adoption, less than one half of one percent invoked it in protection of the Negro race, and more than fifty percent asked that its benefits be extended to corporations.23

Public trust waned in the Court over the first three decades of the 20th century because of these pro-corporate rulings.

If the Court was to regain the public’s trust while still helping the rich and powerful, it needed new language to justify its oligarchic behavior.

Enter originalism and textualism.

ORIGINALISM IS JOINED BY TEXTUALISM

Robert Bork’s 1987 nomination hearing brought originalism and textualism into the American mainstream.24 By the time President Reagan nominated Bork, Bork had already given business a big win by crafting an argument in 1966 that the Court used to decide 1977’s Continental Television v. GTE Sylvania, rendering America’s antitrust laws toothless.25

That year, the Court adopted Bork’s view that antitrust laws were not in place to protect small competitors, to protect communities or legislatures from corruption, or to maintain a vibrant marketplace where entrepreneurs have a chance. Instead, Bork said, the only thing that courts should look at when enforcing antitrust law is whether consumers are seeing higher prices than they should.

No legislature ever came up with this idea, and it’s certainly not what any of our antitrust laws say. But Bork had been pushing the idea in conservative circles for over a decade, and the Court loved it. Their adoption of the Bork Doctrine in 1977 began the process that gave us cheap Chinese junk and low prices on everything from toys to burgers, but also wiped out literally millions of small and local businesses.

Bork’s doctrine, and its enthusiastic embrace by the Reagan administration after the Supreme Court made it the law of the land in GTE Sylvania, is the main reason why every American city today looks pretty much like every other one, with the same low-cost fast-food joints, chain hotels, and Walmarts.

More famously, Bork argued that the framers of the Constitution would never have countenanced gay people getting married or women getting abortions. Nine years after the Senate turned him down, he was still at it, arguing in a 1996 article:

The Court moved a long way toward making homosexual conduct a constitutional right, adopted the radical feminist view that men and women are essentially identical, continued to view the First Amendment as a protection of self-gratification rather than of the free articulation of ideas, and overturned two hundred years of history to hold that political patronage is unconstitutional.26

Appealing to the founders’ 18th-century sense of straight white male power is at the core of what is now called originalist theory. Bork’s big mistake was going into specifics.

Originalists John Roberts, Neil Gorsuch, Brett Kavanaugh, Clarence Thomas, Samuel Alito, and Antonin Scalia refused, during their Senate confirmation hearings, to give specifics when asked about such topics. Instead, they said that their job was to view the meaning of the Constitution through the eyes of the men who wrote it—full stop.

Likewise, textualist justices pretend to divine the meaning of words in the Constitution by reading dictionaries from the 1700s. As Scalia told Fox News’ Chris Wallace, “Originalism is sort of a subspecies of textualism. Textualism means you are governed by the text. That’s the only thing that is relevant to your decision, not whether the outcome is desirable, not whether legislative history says this or that.”27

But there’s no single meaning to terms that appear in the Constitution like general welfare, right, unreasonable, probable cause, equal protection, cruel and unusual, excessive, and due process. Since the first decade after the Constitution was ratified, different courts and different states have interpreted each of these phrases differently.

And originalists say that we can’t listen to the “plain words” of founders like Madison, Jefferson, or George Mason, because each of them served as an elected politician at one time or another, and therefore they must have had “partisan agendas.” Originalists prefer to dive deep into arcane books to support their theories. Sometimes they find support for their ideas in texts that were almost certainly unknown to any of the framers of the Constitution.

To find an “individual right to bear arms” during the founding era, Scalia dug up a 1789 Pennsylvania Anti-Federalist tract published to argue against that state ratifying the Constitution.

Titled Dissent of the Minority of the Pennsylvania Convention, it had virtually nothing to do with guns and nothing whatsoever to do with the men who wrote the Constitution (it actually defied them). But Scalia wrote that the dissenting minority in Pennsylvania “unequivocally referred to individual rights,” and from there he concluded that the same meaning must exist in the Second Amendment in the 2008 case District of Columbia v. Heller.28

Justice John Paul Stevens called Scalia out in his dissent: “The Court’s atomistic, word-by-word approach to construing the [Second] Amendment calls to mind the parable of the six blind men and the elephant.”

But it didn’t matter how badly—or obviously—Scalia had twisted both law and history; all that mattered was that five votes on the Court supported protecting the “right” to own guns from state, local, or national regulation. And those justices sold the idea to Americans by pretending to cite the founders and framers.

ONE TRUE SPOKESMAN

The founders and framers were generally interested in a constitution that would reflect the changing needs and mores of the times. After all, they’d fought a revolutionary war against a nation that had been ruled by an inherited aristocracy for centuries. As times and opinions changed, British colonists like Washington and Jefferson decided to change their very own form of government—and they were willing to die to make it happen.

Thomas Jefferson was one of the most articulate and thoughtful of the founders to address this issue, and he put forth a biting critique of the constitutional philosophy now known as originalism.

Eight years after he left the White House, Jefferson received a pamphlet and a letter from Samuel Kercheval, a Virginia innkeeper and the author of History of the Valley of Virginia.29

Kercheval wondered about the possibility of reforming the political system in Virginia with an eye possibly to a larger, federal reform. In both cases, Kercheval’s main concern was with the difference in representation of the people in the House of Representatives and the Senate.

Jefferson replied at length in a July 12, 1816, letter. When he discovered that Kercheval had shared the letter with others, Jefferson asked Kercheval to retrieve and destroy any copies of the letter because he didn’t want to get dragged back into Virginia politics. The letter still survives, though, and it provides some unfiltered insights into Jefferson’s—and many of the founders’—thoughts on the Constitution and the American form of government.30 He wrote:

Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment.

As [the human mind] becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors. . . .

But the dead have no rights. . . . This corporeal globe, and everything upon it, belong to its present corporeal inhabitants, during their generation. They alone have a right to direct what is the concern of themselves alone, and to declare the law of that direction; and this declaration can only be made by their majority.

Jefferson was clear in his horror at what might happen if the Constitution could not grow with the times:

If this avenue be shut to the call of sufferance, it will make itself heard through that of force, and we shall go on, as other nations are doing, in the endless circle of oppression, rebellion, reformation; and oppression, rebellion, reformation, again; and so on forever.

One great irony here is that Jefferson started the first free public college (the University of Virginia) and wanted every ward in every county to have a free public primary school. He argued strongly that democracy wasn’t possible unless the populace was educated and informed.

Yet, if every school in America had vigorously taught civics and included the above letter from Jefferson—which has been publicly available since at least the 1850s—then when the conservatives of the 1980s first trotted out the entire idea of originalism, they would have been laughed out of the room.

As Republican President Ulysses Grant wrote in his Personal Memoirs, “It is preposterous to suppose that the people of one generation can lay down the best and only rules of government for all who are to come after them, and under unforeseen contingencies.”31

Most preposterous of all? The idea that five men on the US Supreme Court, trained and promoted through their lifetimes by the billionaire-funded Federalist Society, can magically read the minds of the long-dead framers of the Constitution and dictate to Americans that they are the framers’ only true spokesmen.

CLEAR PREFERENCES VERSUS AMBIGUITIES

Since the founding of the republic, scholars and lawyers have debated what the framers of the Constitution meant by ambiguous principles like general welfare and cruel and unusual. But there is little ambiguity in the structural parts of the Constitution.

A few examples: each state will have two senators, and the Senate will vote to ratify treaties and execute impeachments; candidates for president must be 35 years old (on the other hand, natural born has had different popular interpretations over the years, and it’s never been adjudicated by the Court).

While these structural items are amenable to change with changing times, the principles are where changing times produce the greatest swings in interpretation.

At the creation of the Constitution, for example, there was no broadly understood concept of the environment or how it related to government. Yet today, not only can a changing environment disrupt a democratic form of government, but it could even lead to the extinction of humanity itself.

The word principle appears more than 1,500 times in the collected writings of Thomas Jefferson. Principle, he suggested, was at the core of everything a government should be or do. He wrote in 1816: “Only lay down true principles, and adhere to them inflexibly. Do not be frightened into their surrender by the alarms of the timid, or the croakings of wealth against the ascendency of the people.”32

Since President Franklin Roosevelt proposed and signed the law creating Social Security, conservatives have argued that the framers never meant for the principle of “general welfare” to include policies like Social Security.

Conservative billionaires and corporations tried for years to control the law legislatively. But starting with the Powell Memo, cultural and religious conservatives joined up with the billionaire and business class to recapture functional control of the Supreme Court as a much easier way to seize power than messy elections.

We the people can elect members of Congress and presidents all day long, but as long as the Court holds the power to strike down laws (or even replace laws with new doctrines, as they did in Dred Scott, Plessy, Roe, Heller, Citizens United, and others), the Supreme Court (and its inferior federal courts) has final say over the present and future of America.

And while ideologues control the Court and dance to the tunes of those with great wealth and corporate power, the Court will likely continue to deny Americans the policies, no matter how popular, that could improve their lot in life and American democracy.

THE CORRUPTION OF THE COURT ITSELF

In the Federalist, no. 52, James Madison noted,

As it is essential to liberty that the government in general should have a common interest with the people, so it is particularly essential that the branch of it under consideration should have an immediate dependence on, and an intimate sympathy with, the people.

The word dependence was no mistake; the concept was widely understood in the interdependent times of the Revolutionary era. Women, children, and enslaved people were dependent on white men; white men were dependent on wealthy white men who owned their land or employed them; and even the “independent” homesteader was dependent on his neighbors for everything from barn building to trading tools and foodstuffs and helping in times of sickness or injury.

In the Federalist, no. 57, Madison expanded on the idea that “the rich” shouldn’t end up being the ones running our government:

Who are to be the electors of the federal representatives? Not the rich, more than the poor; not the learned, more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscurity and unpropitious fortune. . . . No qualification of wealth, of birth, of religious faith, or of civil profession is permitted to fetter the judgement or disappoint the inclination of the people.33

Sadly, Madison’s vision has largely died. Today, both Congress and the presidency have been corrupted by great wealth, and the corruption has become so systemic that it has spread to the Supreme Court.

In 2014, Matthew Gilens and Benjamin I. Page published an extraordinary study that found that the political goals of Americans in the bottom 90 percent of income are, essentially, ignored by the US Congress, the Supreme Court, and the presidency.34 The political goals of the top 10 percent, however, predictably become law.

As Gilens and Page explained in the Washington Post,

Strong support among the affluent is associated with about a 25 point greater probability of a policy being adopted . . . while strong support among the middle class is actually associated with a small decline in the likelihood that a policy will be adopted. . . . In other words, strong support among high-income Americans roughly doubles the probability that a policy will be adopted; strong support among the middle class has essentially no effect.35

Basically, the most elite and wealthy Americans simply get the legislation and Supreme Court decisions they want, when they want it. For average Americans, though, the probability of their wants and needs being addressed legislatively is even less likely than random chance.

When looking at a few generations’ worth of Supreme Court decisions, we see a similar pattern.

Many Americans know this is true. And fossil-fuel billionaires have successfully exploited this frustration in the recent past. In 2010, average Americans, angry about the corruption of Congress and the White House, signed up to join the Koch-backed Tea Party—without realizing where it came from—and they marched in the streets to demand that their access to affordable health insurance be taken away.

It was one of the most spectacular head-fakes in the history of American politics.36

In 2016, Donald Trump likewise exploited Americans’ frustration about political corruption, famously using the slogan that he’d “drain the swamp” to gin up his supporters before appointing numerous lobbyists to run agencies like the Interior Department and the EPA, among others.

FOSSIL FUELS SEIZE THE COURT

Less well known is how the very same billionaires and the fossil-fuel industry (among others) have corrupted the Supreme Court and large swaths of the federal and state judiciaries.

In November 2017, the Washington Post ran a story with the headline “Federalist Society, White House cooperation on judges paying benefits.”37 The article, authored by Robert Barnes, outlined how a private organization originally funded by fossil-fuel and beer billionaires (among others) was acting as the sole filter for determining who would be presented to the Trump administration for consideration as nominees for federal or Supreme Court positions.

Earlier in the year, there had been some urgency around the issue, as Republican Senate Majority Leader Mitch McConnell did something never before even seriously considered in the United States: he refused to allow President Obama’s nominee for the Supreme Court, Merrick Garland, to have even a single hearing.

The clock ran out on the Obama presidency. Incoming President Donald Trump brought forth Neil Gorsuch. (Neil is the son of Anne Gorsuch, who resigned in disgrace from Reagan’s EPA after dismantling dozens of environmental protections that polluters hated.)

As then, White House Counsel Don McGahn explained to Barnes, Senate Republicans even blocked President Obama from appointing judges to lower courts. That meant that “‘the number of vacancies that was on the table when the president was sworn in was unprecedented,’ McGahn said. He praised ‘the courage that Mitch McConnell showed to make that happen.’”

Then, on January 28, 2018, the lead of a Washington Post story announced: “The Koch network is expanding its portfolio into the judicial branch.”38

The article explained that the fossil-fuel billionaire Koch brothers (and their billionaire buddies) were going to fund an effort to get hard-right judges onto both the Supreme Court and other federal and state courts. Their colleague in this would be the hard-right, partially Koch-funded Federalist Society.

The day before, Kathryn Watson reported for CBS News, “The network backed by Charles and David Koch realizes 2018 will be a challenging environment—and they’re going ‘all in’ to defend their policy priorities and candidates who support them, to the likely tune of roughly $400 million.”39

If the Republicans could hold the Senate in the 2018 elections, they could continue to pack the federal courts and the Supreme Court with billionaire- and corporate-friendly justices. (On just one day, February 8, 2019, Republicans in the Senate pushed through fully 44 judges onto the federal bench, after preventing40 President Obama’s nominations consistently through his last two years in office.41 As the headline read on an August 2017 Daily Signal story by Fred Lucas,42 “Trump Appoints More Judges in 200 Days Than Obama, Bush, Clinton.”

The luxurious hunting retreat where Antonin Scalia died was owned and run by John Poindexter, who owns a company with over 4,000 employees and whose company had had a case before the Supreme Court. As Eric Lipton reported in the New York Times in 2016,

Though that trip has brought new attention to the justice’s penchant for travel, it was in addition to the 258 subsidized trips that he took from 2004 to 2014. Justice Scalia went on at least 23 privately funded trips in 2014 alone to places like Hawaii, Ireland and Switzerland, giving speeches, participating in moot court events or teaching classes. A few weeks before his death, he was in Singapore and Hong Kong.43

Justice Thomas took only 86 subsidized trips in the previous 11 years, but his wife worked for years for the Koch-funded Heritage Foundation and brought home a very ample salary for her efforts.

Were Scalia or Thomas on any other federal bench, they would have been subject to the federal code of judicial ethics (“Code of Conduct for United States Judges”), and that code of ethics would have likely forced them to recuse themselves in the Citizens United ruling, among other consequential cases during their tenures. The Supreme Court, however, has chosen to ignore federal ethics rules.

From 2013 until her death in 2018, U.S. Representative Louise Slaughter annually proposed a federal law creating a Supreme Court code of ethics (after all, the Constitution allows Congress to “regulate” the Supreme Court). Slaughter told NBC in 2017, “We want the same code of ethics for the Supreme Court that we require for all federal judges. Just as simple as that.”44

Republicans have consistently prevented the code of ethics from becoming law.

But even a code of ethics won’t prevent billionaire political donors from helping decide who gets put on the Court itself. That would require a major rewrite of the rules of money in politics, something that Congress has done repeatedly, and the Supreme Court has repeatedly struck down those rules or weakened them to the point of inconsequentiality.

RIGHT-WING TAKEOVER AND CORPORATE HANDOUTS

Mitch McConnell, Senate majority leader at the time of this writing, knows that the Supreme Court and US judiciary have more lasting impacts on our democracy than does Congress.

That’s why in May 2018 he bragged on Hugh Hewitt’s right-wing radio program,

What I want to do is make a lasting contribution to the country. And by appointing and confirming these strict constructionists to the courts who are in their late 40s or early 50s . . . we’re making a generational change in our country that will be repeated over and over and over down through the years.45

In Citizens United, the five conservatives on the Supreme Court definitively transformed our political system with the assertion that campaign spending is First Amendment–protected speech. The ruling overturned campaign finance laws from 1908 all the way up to those passed after Nixon’s scandals.

As I noted in my book Unequal Protection, Justice John Paul Stevens fumed in his Citizens United dissent that “Money is property; it is not speech. . . . These property rights are not entitled to the same protection as the right to say what one pleases.”

Stevens, with the concurrence of Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor, wrote the dissenting opinion in the Citizens United case.

Quoting earlier Supreme Court cases and the founders, Stevens wrote:

The word “soulless” constantly recurs in debates over corporations. . . . Corporations, it was feared, could concentrate the worst urges of whole groups of men. Thomas Jefferson famously fretted that corporations would subvert the Republic.

And, Stevens reasoned, the founders could not have possibly meant to confer First Amendment rights on corporations when they adopted the Constitution in 1787 and proposed the Bill of Rights in 1789, because “[a]ll general business corporation statutes appear to date from well after 1800.” To make his point, Stevens even quoted Chief Justice John Marshall.

Sometimes referred to as the “father of the Supreme Court,” Marshall had written in an early-19th-century decision text that Stevens quoted in his Citizens United dissent: “A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being a mere creature of law, it possesses only those properties which the charter of its creation confers upon it.”

Stevens’s dissent called out Roberts, Alito, Scalia, Thomas, and Kennedy for their corrupt behavior in the Citizens United ruling, which he said was “the height of recklessness to dismiss Congress’ years of bipartisan deliberation and its reasoned judgment.”

The dissenting justices argued that the majority’s ruling wasn’t merely wrong, in both a contemporary and a historical sense, but it was dangerous. The dissent was explicit, clear, and shocking in how bluntly the three most senior members of the Court (along with the newbie, Sotomayor) called out their colleagues, two of whom (Roberts and Alito) had just recently been appointed to the Court by President George W. Bush.

The dissenters noted that it was their five colleagues (and their friends in high places) who were clamoring for corporations to have personhood and free-speech rights, not the American people, who were the “listeners” of such speech: “It is only certain Members of this Court, not the listeners themselves, who have agitated for more corporate electioneering.”

By having free-speech rights equal with those of people, Stevens argued, corporations will actually harm the “competition among ideas” that the framers envisioned when they wrote the First Amendment. “[W]hen corporations grab up the prime broadcasting slots on the eve of an election,” he wrote, “they can flood the market with advocacy that bears little or no correlation to the ideas of natural persons or to any broader notion of the public good. The opinions of real people may be marginalized.”

The result will be that more and more people will simply stop participating in politics (it’s interesting to note how prominent a role the words rigged system played in the 2016 election), stop being informed about politics, and stop voting. Our democracy might wither and could even die.

When citizens turn on their televisions and radios before an election and hear only corporate electioneering, they may lose faith in their capacity, as citizens, to influence public policy. A Government captured by corporate interests, they may come to believe, will be neither responsive to their needs nor willing to give their views a fair hearing. The predictable result is cynicism and disenchantment: an increased perception that large spenders “call the tune” and a reduced willingness of voters to take part in democratic governance.

Citizens United wasn’t the first time the Supreme Court extended First Amendment protections beyond living, breathing human beings. In the 1978 case First National Bank of Boston v. Bellotti, the Court ruled that corporations have First Amendment rights. The ruling in Bellotti upheld a long tradition on the Court of recognizing personhood for corporations, which started in 1819 with Dartmouth College v. Woodward and extended all the way through the 1886 Santa Clara County v. Southern Pacific Railroad Co. to the 2010 Citizens United v. Federal Election Commission.

And in the 2014 case McCutcheon v. Federal Election Commission, the five conservatives on the Supreme Court struck down some of the individual spending limits in the Federal Election Campaign Act.

Each of these cases gave corporations direct, usable economic (and thus political) power over the people’s elected representatives in Congress. Taken together, these Supreme Court rulings fundamentally changed the US political system and opened it up to an unlimited amount of campaign spending from hidden sources.

On my radio program in 2015, I asked former president Jimmy Carter about his thoughts on these rulings that have permitted “unlimited money in politics.” He told me and my listeners,

It violates the essence of what made America a great country in its political system. Now it’s just an oligarchy, with unlimited political bribery being the essence of getting the nominations for president or to elect the president. And the same thing applies to governors and US senators and Congress members. So now we’ve just seen a complete subversion of our political system as a payoff to major contributors, who want and expect and sometimes get favors for themselves after the election’s over.46

The Supreme Court’s rulings and reinterpretations of federal law fundamentally changed our political system, allowing “unlimited political bribery” reaching every level of government—from the president all the way down to local school boards.

Congress never passed a law allowing for unlimited political bribery. Instead, Congress passed numerous laws to rein in political corruption—and the Supreme Court neutered those laws.

And based on what Mitch McConnell told Hugh Hewitt in May 2018, politicians like McConnell have realized that the courts ultimately are more powerful than Congress or the president.

Rather than trying to make political change through legislation, McConnell knows that packing the courts with hard-right friends of billionaires and big corporations will have a much more lasting effect than any legislative victory he may accomplish.

Throughout American history, the courts have gotten the final say on pretty much all legislation. And their review of new laws has exploded over the last 150 years, threatening not only our constitutional republic but also the fate of humanity.

THE CONSTITUTION AFFLICTS THE AFFLICTED AND COMFORTS THE COMFORTABLE

Challenging any part of the Constitution evokes a response like you’d get challenging the Bible to a very religious person: “How could you dare such blasphemy? This is a perfect document.”

Many Americans believe that our Constitution protects individual rights and creates a government that is, first and foremost, directed to operate in the realm of the common good (known in the Constitution as the “general welfare”). That’s simply not the case.

In fact, through our 240-plus years of existence, there have only been a few eras when “democracy” was really playing out in a big way, if democracy means that the will of the majority of the people is what becomes law.

Most of the rest of the history of our nation is the history of a relatively small group of wealthy and powerful people riding roughshod over majorities or large minorities of our population.

And that’s why the Supreme Court—with a few exceptions—most frequently sides with great wealth and the power attendant to it. That’s the predictable consequence of a Constitution that places property rights and the right to contract above most everything else.

THE CONSTITUTION PROTECTS PROPERTY AND ITS OWNERS

For as long as it has existed, the Supreme Court has played the principal role of defender of commercial and property rights.

In the 1819 case of Dartmouth College v. Woodward, the Supreme Court first discovered corporate rights in the US Constitution.

The ruling overturned New Hampshire’s reorganization of Dartmouth College and kept it as a private institution. Justice Marshall then asserted both the power of the Supreme Court and the primacy of the private property represented by the corporation that owned and ran Dartmouth.

And that’s the system that the US Constitution set up.

Property is so deeply woven into our founding documents that the Constitution could be seen, first and foremost, as a contract that protects the right to private property above all else.

The Supreme Court enforces that right of property. The single clause of the Constitution that has generated the largest number of Supreme Court cases and decisions over the years has nothing to do with the rights to life, liberty, or the pursuit of happiness.

Instead, it’s been the Commerce Clause.47

The business of the United States has been, from its inception, business.

Article I, Section 8, not only establishes the power of Congress to regulate (and thus protect) commerce; it also establishes (along with other parts of the Constitution) numerous other property rights and protections. Some examples:

“To establish . . . uniform Laws on the subject of Bankruptcies throughout the United States” protects those people engaged in business, even if they end up screwing their customers or suppliers through their bankruptcy.

“To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures” defines the economic ground in which an economy is rooted: a sound currency and standards that can be used in commerce.

“To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations” outlaws piracy and marine theft, activities that weighed heavily on wealthy ship owners and businesses that depended on the oceans and rivers to transport their goods to market. “To make Rules for the Government and Regulation of the land and naval Forces” does the same.

“To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions” would take care of rebellions forever, particularly if, as in the early years of our nation, they were protesting economic injustice.

Article I, Section 9, reads, “No Bill of Attainder or ex post facto Law shall be passed.” This protected both property rights and the right of people to do things to make money that were nasty but not yet illegal.

“The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person” clearly defined the right of companies to engage in the slave trade with other nations clear into the next generation (1808).

Section 10 of Article I protects business and the wealthy from overzealous state legislatures while further defining federal authority: “No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts.”

Article III of the Constitution even went out of its way to protect the property rights of the blood relatives of people convicted of treason: “The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.”

In Article IV of the Constitution, state courts are required to honor the property rights defined or defended by courts in other states: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”

Article IV, Section 2, makes it easy for Congress or a president to get rid of public lands but difficult to acquire them: “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.”

Even when time came to add a “Bill of Rights” to the Constitution in 1791, at least half of the rights protected were explicitly property rights:

• The Third Amendment bans government from using the private property of your home to stage or billet troops.

• The Fourth Amendment protects “houses, papers, and effects” from being seized by the government.

• The Fifth Amendment requires that your property be protected from government seizure, and if it is seized for the public good, you must be fairly compensated. In addition, it’s explicit that “No person shall . . . be deprived of life, liberty, or property.”

• The Seventh Amendment says that in all lawsuits “where the value in controversy shall exceed twenty dollars,” property owners have an absolute right to trial by jury.

• The Eighth Amendment protects you from being wiped out by “excessive bail” should you be charged with a crime, protecting your wealth.

The Constitution wasn’t principally written to protect human rights or the environment; it was written and ratified to protect wealth and business.

By 1888, the Constitution had done so little to protect average Americans that President Grover Cleveland said, in his fourth State of the Union Address to Congress:

The gulf between employers and the employed is constantly widening, and classes are rapidly forming, one comprising the very rich and powerful, while in another are found the toiling poor.

As we view the achievements of aggregated capital, we discover the existence of trusts, combinations, and monopolies, while the citizen is struggling far in the rear or is trampled to death beneath an iron heel.

Corporations, which should be the carefully restrained creatures of the law and the servants of the people, are fast becoming the people’s masters.48

With a few exceptions, typically lasting only a decade or two, the situation has only gotten worse, with the Supreme Court acting as an instrument and agent of the very wealthy and powerful in this nation.

THE CONSTITUTION PROTECTS KILLERS AND SLAVE OWNERS

America was birthed from genocide. The slaughter of Native Americans was likely the greatest genocide in the history of the world.

Between 50 million and 100 million people were outright murdered or killed by European diseases over a 400-year period, and millions of the survivors were forcibly displaced from ancestral lands. So many people died that they left millions of acres of former farms fallow, and the regrowth of forests and jungles took so much carbon dioxide out of the air that it altered the world’s weather for almost a century, producing “the Little Ice Age” of the 1600s.49

The Constitution protected the people and politicians who continued that genocide through the first 150 years of our nation’s history. It’s why “Indian Tribes” are mentioned three times in the Constitution, separating the people in those tribes from the laws, rights, and benefits of our country framed by the Constitution.

America was also birthed from slavery, and our Constitution was written to perpetuate that practice.

It’s why the Constitution said, “No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.”

Southern slave owners wanted everybody in the nation to help recapture any fugitives from their plantations. Northern states complied, because slavery was the single largest generator of cash for both the South and the North until the Civil War.50

It’s also why the Constitution features the “three-fifths compromise,” guaranteeing that, for purposes of federal representation, Southern states with large black populations could count three-fifths of their slaves as if they were citizen-voters. Because the number of enslaved persons was so great in the South, this “compromise” gave the South much more power in the House of Representatives and the Electoral College than if only free persons were counted.

The South not only had political power; it had enormous financial power. At the time of the Civil War, more than half the wealth of the slave states existed as human beings held in slavery, and the agricultural activity in those states was one of the main economic forces in the North.51

The North made so much money from the trade that a single slaving ship run generated the equivalent of nearly $30 million in today’s dollars.52

Virtually all of this business was run out of New York City, and slave traders largely ran the city’s political and social machines.

Immediately before the Civil War, between 1858 and 1860, more than 100 slave ships launched from the Port of New York. That’s over $3 billion of revenue in just two years filling the vaults of businesses based in Manhattan. New York’s slave ships outnumbered every other American city’s even though the state of New York had outlawed slavery way back in 1827.53

A New Orleans newspaper editor wrote that if New York could no longer ship slaves to the South and Southern cotton to England, New York’s “ships would rot at her docks; grass would grow in Wall Street and Broadway, and the glory of New York, like that of Babylon and Rome, would be numbered with the things of the past.”54

When the Civil War broke out, New York Mayor Fernando Wood even proposed that New York City (Manhattan, Long Island, and Staten Island) should join with the South in seceding from the rest of the United States. The new nation-state made up of the three islands would be called Tri-Insula.

The City Council was enthusiastic, but the war moved too quickly, so that when the bombing of Fort Sumter started, New York dropped its consideration of the idea of secession.

The power of slavery and cotton to generate wealth was foundational to our republic at its birth.

And slaves were considered the property of their owners.

When contemplating the end of the institution of slavery in the South, Patrick Henry, the largest slaveholder in Virginia, lamented that “in [such a] situation, I see a great deal of the property of the people of Virginia in jeopardy, and their peace and tranquility gone.”

THE CONSTITUTION PREFERS PROPERTY RIGHTS TO HUMAN RIGHTS

In 2016, First Lady Michelle Obama addressed the Democratic National Convention and caused a media firestorm with one simple statement: “I wake up every morning in a house that was built by slaves.”

Michelle Obama was not alone waking up in a “house built by slaves.” Every American wakes up in a country that was founded on stolen lands and built on the broken bodies of African slaves.

And our Constitution has guaranteed that we are never far from that history.

Between 19 and 41 of the 56 signers of the Declaration of Independence owned slaves at the time of the signing,55 and representatives from the South threatened to scuttle the American then-confederacy in its infancy, depending on whether the new Constitution would see slaves as property or as persons.

Southern slaveholders feared that if slaves were taxed at the same rate as freed men, it would be economically impossible to maintain large plantations, and it would become cheaper to free their slaves.

Thomas Lynch raised this concern at the Continental Congress in 1776, declaring, “If it is debated, whether their Slaves are their Property, there is an End of the Confederation. Our Slaves being our Property, why should they be taxed more than the Land, Sheep, Cattle, Horses, &c.”56

The founders’ views hadn’t evolved much by a decade later when the 13 states began to draft a new Constitution to replace the weak and ineffectual Articles of Confederation. In 1788, Patrick Henry worried that a federal slave tax might be so burdensome that it would “compel the Southern States to liberate their negroes.”57

THE CONSTITUTION PROTECTS TAKERS, NOT THE TAKEN

The Fugitive Slave Clause presented the country with one of its earliest constitutional disputes, which began a simmering divide between the North and South that would eventually explode into the Civil War.

By 1791, it was clear to the South that the Fugitive Slave Clause pitted states’ rights against property rights, but it was unclear which set of rights was superior.

The first challenge came from the state of Pennsylvania. Pennsylvania had passed a law in 1788—one year before the ratification of the US Constitution—saying that it was illegal to kidnap someone from Pennsylvania and force them into slavery in the South. The law provided some exceptions and processes for Southern slave owners to reclaim escaped slaves, if they could prove their case before a Pennsylvania magistrate.

In 1791, just two years after the ratification of the US Constitution, the governor of Pennsylvania, Thomas Mifflin, demanded that the governor of Virginia, Beverley Randolph, hand over three Virginians: Francis McGuire, Absalom Wells, and Baldwin Parsons.

Pennsylvania courts indicted the three for kidnapping an African American and taking him to Virginia to be enslaved. Justice Joseph Story wrote, “The governor of Virginia . . . referred the matter to the attorney-general of that state, who advised that the demand ought not to be complied with.”58

The governors took the matters to President Washington. Mifflin wrote to Washington on July 18, 1791, “I have thought the present, a proper, occasion to bring the subject into your view, that, by the interposition of the Federal Legislature . . . such regulations may be established, as will, in future, obviate all doubt and embarrassment, upon a constitutional question, so delicate and important.”59

Washington passed the matter to Congress, and in February 1793, he signed the first federal Fugitive Slave Act to deal with the “doubt and embarrassment” of the constitutional question.

The law seemed to work. The issue didn’t escalate to the federal level for nearly 50 years, when the Supreme Court finally weighed in on the matter in 1842’s Prigg v. Pennsylvania decision.

Edward Prigg was a bounty hunter hired to capture Margaret Morgan, a fugitive who had escaped from Maryland (a slave state) to Pennsylvania (a free state).

Prigg seized Morgan and her two children, dragging them before a Pennsylvania magistrate, who ruled that Prigg didn’t have enough evidence to take his hostages to Maryland.

So Prigg tried to kidnap them, only to get himself arrested for breaking Pennsylvania’s state laws about capturing people.

Justice John McLean delivered the sole dissent: “The state law is not violated by the seizure of the slave by the master, for this is authorized by the act of congress; but by removing him out of the state by force, and without proof of right, which the act does not authorize.”

In other words, according to the dissent, the Constitution would allow Prigg to kidnap Margaret Morgan and her children—if he could prove to a magistrate that they were really fugitive slaves.

All of the other justices ruled that the Fugitive Slave Act of 1793 superseded Pennsylvania’s state law, so the state had to permit Prigg to take his hostages to Maryland.

Many legal scholars have argued that the Prigg decision set a legal precedent that made 1857’s Dred Scott v. Sandford decision nearly inevitable.60

With the Compromise of 1850 (which resolved the conflict over slave or free status for the states won in the Mexican-American War, as well as resolving the status of California and Utah), Congress passed a new Fugitive Slave Act, which tipped the scale further toward property rights over states’ rights. Among other stringent changes, the Fugitive Slave Act of 1850 set bounties for returning fugitives and fines for anyone who helped a fugitive, and penalties for judges and marshals who refused to hear cases.

The Fugitive Slave Clause spun a fundamental tension between property rights and states’ rights in our Constitution—where human, civil, and environmental rights are continuously under attack.

This fundamental tension was so great that President Washington signed a more detailed law on how to deal with fugitive slaves between the states in 1793—10 years before the Court seized power with the Marbury decision. Nonetheless, the tension between property rights and states’ rights festers, and it manifests every time a corporation sues a state over an environmental or consumer protection.

PART TWO

The Hidden History of the People and the Court

The Supreme Court’s interpretations have changed just as much and as frequently as society itself in the United States.

Part 2 of this book explores how the Court has most often ruled against popular interests, and how Americans—from average Americans to the president—have fought back against the Court’s most harmful rulings.

THE SUPREME COURT VERSUS LABOR

At the time of the United States’ founding in 1789, the country was agrarian. Work was done by manpower (often enslaved manpower) or by animal power. But by the time the United States broke out in civil war, the Industrial Revolution was already well under way.

The Industrial Revolution was just that: a revolution. Society fundamentally ...

PART THREE

To Save the Planet, Democratize, and Modernize the Supreme Court

Today’s US Supreme Court bears little resemblance to the political makeup of our nation. While that’s created a crisis of legitimacy, it’s a problem with available solutions.

This section explores a few of the options available for remedying our ailing judiciary. Ultimately, part 3 of this book explores how citizens can reverse Lewis Powell’s coup and break the right-wing stranglehold on the Supreme Court specifically, and on our political system generally.

Article III, Section 2, of the Constitution says that the Supreme Court is, essentially, the final arbiter of all legal disputes in the United States, “with such Exceptions, and under such Regulations as the Congress shall make.”

One of those regulations has covered how many justices are on the Court at any given time, a decision that the Constitution hands to Congress.

REGULATING THE NUMBER OF JUSTICES ON THE COURT

Congress has the power to change the number of members on the Supreme Court and has done so for nakedly political reasons several times since the founding of the republic.

Through much of our history, the court was expanded along with the country itself. Judicial regions or circuits were added as the country grew. From the country’s founding until 1891, each member of the Supreme Court would also spend a few months a year “riding the circuit” as the lead judge on the circuit courts.

As new states were added, they needed their own court circuits, so the number of justices on the Supreme Court grew to accommodate the new circuits. It grew to seven in 1807 and nine in 1837. It peaked at 10 in 1863, when the 10th Circuit Court was added for California.

But going all the way back to the battle between Adams and Jefferson in 1800, Congress also had a history of “regulating” the number of justices on the Court for purely political purposes.

When the first Judiciary Act became law in 1789, it established the Supreme Court at six members.

The Federalists lost executive and legislative power in the election of 1800, but Adams wasn’t about to hand over the federal government to Jefferson completely.

In the months before they had to leave, the furious Federalists passed a law reducing the size of the Court to five members, so that even if someone died or left, Jefferson would not be able to make his own appointments. Weeks after the new Democratic Republican (now known as the Democratic Party) Congress was sworn in, they undid the law, so it never had any impact.

Four generations later, for the 1864 election, Abraham Lincoln replaced his first-term VP, Maine’s Hannibal Hamlin, with a Southerner and a slave owner, Andrew Johnson. Johnson had bought his first slave, a 14-year-old girl named Dolly, the same year he was elected to the Tennessee House of Representatives; over the years between then and 1865 she had borne him three children, and he’d added more slaves to his collection.

When Lincoln was assassinated in the year after he was reelected, the pro-slavery Democrat Johnson became president and things started to come apart. The culmination of that was the successful 1867 impeachment of Johnson in the House, and the Senate’s inability to convict and remove him from office by a single vote.

In 1865, Supreme Court Justice John Catron died, leaving a vacancy on the Court. Catron was a slave owner, and Johnson moved to replace him with Attorney General appointee Henry Stanbery—a political friend of Johnson’s.

Stanbery had been a Democrat, but he’d grown up in Pennsylvania and Ohio, so he wasn’t a slaveholder or a Southerner. Nonetheless, his close affiliation with Johnson upset the Republicans who controlled Congress. He also supported Johnson’s policies of pulling troops out of the South, which would have effectively ended Reconstruction in the South. Republicans in Congress were enraged at the prospect.

So, in the spirit of the Congress of 1800, Congress passed a law in July 1866 to gradually reduce the size of the Court (as individuals died or retired) from 10 members to seven. This not only blocked Johnson from appointing Stanbery but also made it unlikely that he’d get any appointments as president.

In 1868, anti-slavery Republican Ulysses S. Grant took the White House and a solid Republican majority took Congress. Johnson was no longer a threat, and Congress reregulated the Court with the Judiciary Act of 1869, which raised the number of justices to nine. It’s stayed there ever since.

Congress has twice altered the number of justices on the Supreme Court, just to thwart a sitting or incoming president.

It’s time to do it again.

TERM LIMITS

Another solution to an out-of-touch Supreme Court is to increase the frequency of the Court’s turnover and to make sure that every president can appoint at least two justices.

An 18-year term limit, rolled out over staggered alternate years, would accomplish both goals.

The Constitution, speaking of how long federal judges will serve, says, “The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.”

The argument against Supreme Court term limits is that the only reason the Constitution specifies for removing a judge is his or her failure to engage in “good behaviour” (like other federal officials, they can also be impeached). In other words, as long as they don’t misbehave, they’re in for life.

But the sentence about judicial terms lumps together both Supreme Court justices and other federal judges. According to multiple constitutional scholars, that means it’s possible to move judges between courts without disrupting their lifetime jobs.

This is what happens when elevating judges from the federal courts to the Supreme Court; why not the reverse?

In the Federalist, no. 79, Hamilton lumps the two together when referencing compensation: “The plan of the convention accordingly has provided that the judges of the United States ‘shall at STATED TIMES receive for their services a compensation which shall not be DIMINISHED during their continuance in office.’”

He also noted that the sole technique for complete removal from either federal bench is impeachment: “They are liable to be impeached for malconduct by the House of Representatives, and tried by the Senate; and, if convicted, may be dismissed from office, and disqualified for holding any other. This is the only provision on the point.”

In the Federalist, no. 78, Hamilton again conflated the types of judges when arguing for lifetime tenure: “The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government.”

Ironically, the Supreme Court itself could determine the constitutionality of judicial term limits. Or must the justices recuse themselves? Here, the knot gets tighter and more complex; there are no easy answers, as the issue has never been subjected to legislative, executive, or judicial review.

But as Thomas Jefferson wrote to John Taylor in 1798 about the bizarre presidency of conservative John Adams: “A little patience, and we shall see the reign of witches pass over, their spells dissolve, and the people, recovering their true sight, restore their government to its true principles.”1

The American people want the Court to be an impartial body, providing balance to the legislative and executive branches. Term-limiting Supreme Court appointments, guaranteeing every president at least two appointments, is one tool available to balance the Court.

CAMERAS IN THE COURTROOM

The Supreme Court is regulated only by Congress and itself. And because Congress has largely chosen not to regulate the Court, it’s chosen to give almost zero oversight to itself.

Several members of the Court don’t even seem to care about the appearance of impropriety: Antonin Scalia went hunting with Dick Cheney weeks before deciding a case in Cheney’s favor;2 Clarence Thomas has shown up at Koch brothers events while ruling on case after case brought to the Court by Koch front groups (all while his wife indirectly takes money from the Kochs via the Heritage Foundation).3

The Court has likewise far removed itself from any oversight by we the people. The Court doesn’t even allow Americans to remotely see Court proceedings. No cameras or recording devices whatsoever are allowed in the Court when it’s in session, and they only release written transcripts after roughly a week has passed.

The benefits are obvious: civic engagement and enlightenment. The costs that have traditionally been posited are the possibility of turning a courtroom into a “circus” and the potential for witness or juror intimidation. There’s also the concern that people who are ultimately found not guilty in a courtroom may be portrayed as guilty simply because they were broadcast as a defendant in court.

The Federal Rules of Civil Procedure—which Congress passed at the request of the Supreme Court in 1937—broadly govern what’s allowed and not allowed in a courtroom. They were designed “to secure the just, speedy, and inexpensive determination of every action and proceeding.”

In 1953, the rules added, “Except as otherwise provided by a statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.”

In the 1990s, the Second and Ninth Circuit Courts experimented with permitting television recording of courtroom activity. After all, there are generally no witnesses, and never a jury to be intimidated, and the defendants rarely appear in person in these courts.

The experiment was successful, and the Ninth Circuit has continued to record its proceedings.

The Supreme Court has no jury (arguably, it is the jury) and no defendants (in the cinematic sense). There’s really no good justification for it to prevent video or audio recordings, particularly now that cameras can be made so small as to be functionally invisible to the justices and the lawyers pleading before them.

Article III, Section 2, of the Constitution gives Congress the power, with a simple majority, to “regulate” the Supreme Court. A great starting point would be a simple law requiring the Court to allow nonintrusive live audio/video streaming and recording of its public sessions.

THE CONSTITUTIONAL AMENDMENT REMEDY FOR AN OUT-OF-CONTROL COURT

The Court has overruled itself 125 times in its history, usually after much time had passed and public sentiment changed, or because new appointments to the Court caused an ideological shift on the bench itself.4

The Court has also been overruled by Congress passing new (and sometimes clarifying) laws 59 times, in areas widely ranging from tax law to immigration to education and crime.5

But when the Court uses judicial review to overturn laws, and then holds fast to that conclusion over a substantial period of time, the only remedy that Congress and we the people have is to modify our founding document itself.

Out of more than 24,000 attempts, Congress has successfully amended the Constitution only 18 times in our nation’s history (the first time for all 10 amendments in the Bill of Rights). In six of those instances, Congress (representing we the people) used the amendment process to directly “overthrow” the will of the Court.6

The process of amending the Constitution can be drawn out, and even bloody. The 27th Amendment, for example, was first introduced to Congress in 1791 but not ratified until 1992. The 13th, 14th, and 15th Amendments wouldn’t exist if thousands of Americans hadn’t died fighting to secure those rights.

The Equal Rights Amendment, introduced in 1972, is still three states short of ratification.7 This, for a single-sentence Amendment that simply says, “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex,” which is strongly supported by an overwhelming majority of Americans.

When the public sentiment is strong, though, Congress and the states can move fast. For example, the 26th Amendment lowered the voting age to 18. It was first introduced in Congress on March 10, 1971, and ratified just four months later on July 1: a record for the process.

FDR first proposed lowering the voting age during World War II, and Georgia lowered its voting age to 18 in 1943. Eisenhower called for it in his State of the Union address in 1954, and Richard Nixon endorsed it too. But those of us who remember the era give a lot of the credit to Barry McGuire’s song “Eve of Destruction,” with its haunting lyric “You’re old enough to kill, but not for voting.”

Released in 1965, the song quickly hit the Billboard Top 100, and when I was working as a DJ in 1969 and 1970, it was one of the most frequently requested and played of the hourly “golden oldies.” It helped galvanize a movement that crested in the spring of 1971.

While there’s no big hit song today complaining about how the Supreme Court simply invented the twin doctrines of corporate personhood and money is free speech—the central doctrines that have led us to such a corrupted political system—there is a broad and substantial movement across the nation to amend the Constitution to roll back both.8

Amending the Constitution can be a glacially slow process, but it is nonetheless an important way for we the people, via Congress and the states, to remedy harms wrought by the Court.

THE LAST RESORT: STRIP THE COURTS

The year 1981 was a big one for court-stripping—or, as it’s sometimes called, jurisdiction-stripping. No fewer than 30 pieces of legislation were introduced into the US House of Representatives by Republican congressmen that included court-stripping provisions. It was a huge topic of discussion and legal activity among Republicans.

And a young lawyer working in Ronald Reagan’s Justice Department, an up-and-comer named John Roberts, was hot on the trail.

Court-stripping is based on the idea that Congress has the power, under the Constitution, to pass laws that include provisions that specifically prevent (or strip the jurisdiction of) the Supreme Court (or any other federal court, if stipulated) from ruling on that particular law or issue’s constitutionality.

It’s based on Article III, Section 2, of the Constitution, which says, “[T]he supreme [sic] Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

In 1954, the Supreme Court ruled, in Brown v. Board, that the mostly Southern states that were segregated had to integrate their schools. Virginia shut down its entire state school system for a year in defiance; other states opened private all-white “segregation academies” such as the one that Mississippi Senator Cindy Hyde-Smith famously went to and sent her daughter to.

Brown provoked a mini industry among right-wing white racists: Fred Koch’s beloved John Birch Society was putting up “Impeach Earl Warren” billboards across the nation and publishing articles and pamphlets tying civil rights activists to communism; hundreds of all-white private schools opened; and conservative scholars of the Supreme Court and the Constitution searched through old books and debates from the founding era to that day looking for rationales to overturn the decision.

Other than years of disruption to public education and a redoubled effort by conservatives to keep public schools funded with local property taxes (so that poor and/or black schools would continue to turn out poorly educated students), not a great deal came of the opposition to Brown v. Board.

But defying the Court became a much bigger business in 1973, when the Court in Roe v. Wade ruled that women have the right, at least in the first trimester of a pregnancy, to choose to have an abortion pretty much anywhere in the country, for any reason.

The Catholic Church was the first to react with outrage, but the generally anti-Catholic Protestant churches initially supported a woman’s right to choose an abortion.

In 1979, for example, the Baptist Joint Committee went to federal court to oppose the Hyde Amendment, which banned federal monies from paying for abortions; the Baptists’ rationale was that if the federal government forbade federal money from being used for abortions, then the US government had, essentially, adopted Catholic doctrine, and thus violated the Establishment Clause of the Constitution. In other words, the Baptists, who in 1979 supported a woman’s right to an abortion, saw the Catholic opposition to abortion and Catholic-promoted anti-abortion legislation as an attempt to influence our government that was so severe, they said it violated the part of the Constitution that says the government shall not establish a state religion.

But just a year later, the leaders of some of the most powerful and prominent white evangelical Protestant churches realized that opposing abortion could be a religious and political/financial marketing and expansion opportunity of huge proportions.

The Southern Baptist movement in the United States, like many of the Protestant churches, was heavily invested in white supremacy. Founded in 1845, the Southern Baptists had supported segregation and Jim Crow laws for over a century, and even in 2012, their chief lobbyist, Richard Land, said on his radio show that white people seeing young black men as “threatening” was “understandable,” because they are “statistically more likely to do you harm than a white man.”

But that was just the warm-up. Land went on to call Al Sharpton and Jesse Jackson “racial ambulance chasers” and “race mongers.” His comments caused a stir, and the denomination formally reprimanded him, but he wasn’t fired.9 Just a generation earlier, such sentiments could have been heard from the pulpit.

The deep white supremacist roots of the anti-abortion movement combined nicely with white racial outrage over Brown to form the perfect political issue for men like Jerry Falwell.

The original anti-abortion movement started just before the Civil War, when in 1858 the American Medical Association (AMA) launched a movement to criminalize abortion among white women and place the occasional medically necessary abortion procedure exclusively in the hands of doctors.

In this, the AMA—which was entirely made up of white men at the time, and probably even 100 percent Protestant—was part of a WASP male structure in America that saw their power endangered by a growing population (largely through immigration) of “nonwhite” people, combined with a threat to male control from a growing women’s suffrage movement.

As researchers Nicola Beisel and Tamara Kay wrote for a 2004 paper published in the American Sociological Review, “[T]he nineteenth-century politics of abortion were simultaneously racial and gender politics. Claims that physicians played on fears of independent women miss what was at stake: Anglo-Saxon control of the state and dominance of society.”10

Doing a deep dive into the publications, literature, and history of the anti-abortion movement in the late 19th and early 20th centuries, they found, “While laws regulating abortion would ultimately affect all women, physicians argued that middle-class, Anglo-Saxon married women were those obtaining abortions, and that their use of abortion to curtail childbearing threatened the Anglo-Saxon race.”

Noting that the “white race” in that era was so tightly defined that it didn’t include Jews or Catholics, and even explicitly defined Celts (mostly Catholic Irish) and Teutons (mostly Germans, many of them Catholic) as other than “white,” and that more than 500,000 “white” men of Anglo-Saxon ancestry had died in the Civil War, giving an instant boost to nonwhite populations, the AMA and their white supremacist allies succeeded by the 1890s in putting into place laws that forbade abortion in virtually every state. The laws were largely ignored in “nonwhite” communities but were rigorously enforced against “white” women.

Beisel and Kay wrote,

Anglo-Saxon political control in northern cities and states depended on numerical dominance at the polls, which led to concerns about the reproductive prowess of Anglo-Saxon women. In other words, reproduction of an aspect of the racial structure—political dominance—was tied to . . . women’s role as mothers.

The racist history of the anti-abortion movement wasn’t lost on Jerry Falwell, who had spent decades since Brown v. Board opening, running, and authorizing whites-only “Christian” private schools.

One of the most prolific multimillionaire marketers among the evangelical Protestant community, Falwell seems to have realized that being opposed to abortion could be a huge fundraiser and publicity machine for his growing televangelism business. As a bonus, it dovetailed nicely with the white supremacist philosophy that animated his all-white school empire.

Merging the two needed a bit of marketing, though, and they needed a high-profile politician to bring this to a national stage. The candidacy of Ronald Reagan in 1980 was their opportunity to make serious political hay.

At the same time, the conservative heavyweight and cofounder of the Heritage Foundation and ALEC, Paul Wey-rich, who famously said, “I don’t want everyone to vote,” had been arguing for over a year that merging “local control” of schools to keep them all-white with an anti-abortion message, presumably to keep the white race growing, only made sense for the Republican Party and the conservative movement.

Initially, the problem was that Reagan, as California governor, had supported and signed a bill that legalized and made abortion widely available. His vice-presidential running mate, George H. W. Bush, was an ardent and outspoken supporter of Planned Parenthood.

But Falwell, Weyrich, and others prevailed on Reagan, and when he ran for president in 1980, he flipped positions to support a constitutional amendment to ban abortion nationwide. Bush quietly followed.

Falwell then led a movement of white evangelical preachers (particularly those with a high TV profile) to support Reagan, and, as Steven P. Miller wrote for Salon in 2014, “That year [1980] witnessed a conclusive pivot in modern evangelical politics—a pivot, indeed, in the image of American evangelicalism as a whole.”

Referring to Falwell as, by 1979, a political consultant as well as a religious leader, Miller noted, “During the 1980 campaign, Ronald Reagan and the evangelical conservatives engaged in a very public courting ritual.”11

Reagan, of course, had kicked off his 1980 presidential campaign with a speech about education and states’ rights to an all-white crowd near Philadelphia, Mississippi, where three civil rights activists had been murdered just years before. Willing to say and do whatever it took to take the White House, Reagan was the perfect vessel for a white supremacy message opposing forced integration, welfare for black people, and abortion for white women.

Thus, after Reagan’s installation in the White House in January 1981, his Justice Department was hard at work, both on an anti-abortion constitutional amendment (a long shot—more than 24,000 have been submitted to Congress, and only 27 have ever made it through the process to become part of the Constitution) and on a frenetic search for other ways to satisfy an explosively growing anti-abortion movement that was daily being jacked into hysteria by Falwell and his supporters (a process that, within a decade, would lead to the first murder of an abortion doctor in the United States).

THE ROBERTS PLAN TO STRIP THE COURTS

Reagan’s administration brought together a constellation of conservative white men to change the face of America. Ted Olson, who later argued Bush v. Gore before the US Supreme Court, led the Justice Department’s Office of Legal Counsel. As an assistant attorney general, Olson worked with counselor to the attorney general Ken Starr (appointed to that job in 1981), who was later (1989–1993) George H. W. Bush’s solicitor general. Other new faces Reagan hired included Samuel Alito and John Roberts.

Starr tasked Roberts, a staunchly anti-abortion Catholic, with reviewing the entire history of the US Supreme Court for cases that suggested a legislative or administrative way to overturn Roe v. Wade and possibly even Brown v. Board.

Roberts wrote an extraordinary 27-page document that’s almost unknown, in the form of a memo on the letterhead of the Office of the Attorney General to Ken Starr, signed by Roberts as special assistant to the attorney general. It is titled, “Proposals to Divest the Supreme Court of Appellate Jurisdiction: An Analysis in Light of Recent Developments.” (The memo starts on page 66 of the online archive cited.)12

Roberts wrote that he had found “over twenty bills [pending in Congress] which would divest the Supreme Court (and, in most instances, lower federal courts as well) of jurisdiction to hear certain types of controversies, ranging from school prayer and desegregation cases to abortion cases.”

What Roberts and his researchers found was substantial.

Court-stripping is based on the Exceptions Clause of Article III, Section 2, of the Constitution, which stipulates that the courts exist “with such Exceptions, and under such Regulations as the Congress shall make.”

Roberts noted eagerly in his memo that “the exceptions clause by its terms contains no limit. . . . This clear and unequivocal language is the strongest argument in favor of congressional power and the inevitable stumbling block for those would read the clause in a more restricted fashion.”

Roberts was looking at the nuclear option. If he could build a strong case for Congress passing a law against abortion (or against desegregation), and persuade Congress to use the Exceptions Clause to render the courts moot, then this could be the magic bullet to restore segregation and recriminalize abortion!

Roberts concluded with a 1968 comment from Sam Ervin of North Carolina, one of the Senate’s most outspoken opponents of racial integration and abortion.

He wrote, “As Senator Ervin noted during hearings on the exceptions clause, ‘I don’t believe that the Founding Fathers could have found any simpler words or plainer words in the English language to say what they said, which is that the appellate jurisdiction of the Supreme Court is dependent entirely upon the will of Congress.’”

Roberts agreed: “[W]e are not considering a constitutional clause that is by its nature indeterminate and incapable of precise or fixed meaning, such as the due process clause or the prohibition on unreasonable searches and seizures.”

This was clearly the original intent, Roberts argued, because “the exceptions clause ‘was not debated’ by the Committee of Detail which drafted it, or the whole Convention.”13

Citing the Federalist, no. 81, Roberts wrote, “Hamilton noted that the clause would enable ‘the government to modify [appellate jurisdiction] in such a manner as will best answer the ends of public justice and security,’ and that appellate jurisdiction was ‘subject to any exceptions and regulations which may be thought advisable.’”14

Section III of Roberts’s screed on court-stripping dives deep into Supreme Court decisions to find rulings explicitly saying that Congress can regulate the Supreme Court and block the Court from ruling on particular issues.

Beginning with the 1869 decision Ex parte McCardle, Roberts wrote, “A unanimous Court upheld the power of Congress to divest the Supreme Court of jurisdiction. The Court clearly based its decision on Congress’ power under the exceptions clause. Chief Justice Chase began the opinion by recognizing that the appellate jurisdiction of the Court “is conferred ‘with such exceptions and under such regulations as Congress shall make.’”

Quoting Chase again, Roberts added his own emphasis: “We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this Court is given by express words [emphasis Roberts’s].”

He continued his historical exposé of court-stripping with another 1869 decision, Ex parte Yerger, and then United States v. Klein (1872), Wiscart v. Dauchy (1796), Durousseau v. United States (1810), Daniels v. Railroad (1865), and The Francis Wright (1881).

In The Francis Wright, Roberts found that Chief Justice Morrison R. Waite (whose Court oversaw the infamous 1886 “corporate personhood” Santa Clara County v. Southern Pacific Railroad case) wrote for a unanimous Court, quoting him as follows: “Not only may whole classes of cases be kept out of the jurisdiction altogether, but particular classes of questions may be subjected to re-examination and review, while others are not.”15

Each case strengthened the idea that Congress could simply pass a law, without even needing a supermajority, that barred the Supreme Court from ruling on a set of issues—like Reagan’s hot-button issues of school desegregation and abortion.

Moving toward late-19th-century decisions, Roberts quoted the Court in Colorado Central Consolidated Mining Co. v. Turck (1893): “[I]t has been held in an uninterrupted series of decisions that this Court exercises appellate jurisdiction only in accordance with the acts of Congress upon the subject.”

Roberts, in his own voice, added, “Again, it bears emphasis that the basis for this theory is the implicit exercise by Congress of its exceptions power when it makes a limited grant of jurisdiction.”

COURT-STRIPPING IN THE 20TH CENTURY

Still building his case, Roberts jumped into 20th-century rulings, starting with National Mutual Insurance Co. v. Tidewater Transfer Co. (1948). Writing for the majority, Justice Felix Frankfurter noted in the decision, “Congress need not give this Court any appellate power; it may withdraw appellate jurisdiction once conferred and it may do so even while a case is sub judice.”16

About the 1944 Yakus v. United States case, Roberts wrote, “Justice Rutledge noted . . . that ‘Congress has plenary power to confer or withhold jurisdiction.’”

Regarding Flast v. Cohen (1968), Roberts quoted from Justice William O. Douglas, who wrote, “[A]s respects our appellate jurisdiction, Congress may largely fashion it as Congress desires by reason of the express provisions of Section 2, Article III. See Ex parte McCardle.”

In Section IV of his memo, Roberts again went back to the framing of the Constitution and brought us up to the present day, quoting another dozen or so cases that referenced, less directly, the power of Congress to exempt the Court from certain issues or decisions.

Roberts also noted that the original Judiciary Act (which created the federal court system) also refers to Congress’s power of exception.

Roberts and many of his colleagues in the Reagan administration and the Republicans in Congress believed that if school desegregation and legalized abortion stood, their (and their base voters’) white male power was in real danger of being diminished. It was an existential emergency to them, as much as a political opportunity.

In the face of such an emergency, they seriously considered—and tried more than 30 times that year in Congress—a nuclear option that had never been used in a big way before: court-stripping.

A PLANETARY EMERGENCY

In retrospect, the energy and concern of Roberts and his colleagues seem almost quaint.

Now, the Supreme Court has a solid majority of men who support both white male supremacy (remember that Thomas even supported gutting the Voting Rights Act) and the criminalization of abortion. But, unlike Roberts’s early days and the abortion/desegregation issues, today the United States and the world are facing an existential emergency.

Global warming and the atmospheric carbon that cause it have reached the point where it’s causing massive death of nonhuman species across the planet17 and producing such severe weather (both droughts and floods) that the costs today are in the hundreds of billions across the United States and in the trillions worldwide.18

Deserts are swallowing farmlands, driving refugee crises from the Middle East (the Arab Spring was touched off by an explosion in wheat prices), and many of the refugees from Central America trying to make it into the United States are similarly fleeing destabilized areas where crops are failing.

Every mass extinction in the history of the planet has been caused by climate change. In four of the five previous mass extinctions, the climate change was caused by volcanic activity throwing massive amounts of greenhouse gases into the atmosphere (and possibly the fifth, although it may also have purely been due to a meteorite hitting Earth); and in each case, warming past 5 to 7 degrees Celsius was enough to wipe out 70 to 95 percent of all life on Earth.

Our civilization itself is already teetering in part because of global warming; the extinction of humanity could follow if something is not done immediately.

Yet fossil-fuel billionaires not only have captured control of the entire Republican Party but also appear to have control over most of the Supreme Court.

Court-stripping is the ultimate nuclear option. Although former Senate Majority Leader Harry Reid agonized for years before partially blowing up the filibuster, that was peanuts compared with court-stripping.

If a Democratic-majority Congress were to pass a law forbidding the Supreme Court from ruling on issues of, for example, money in politics or regulation of greenhouse gases, then when Republicans regained control, they’d almost certainly pass laws reversing those actions.

Likewise, Republicans could take the power of court-stripping even further, perhaps damaging our democratic republic in ways from which it would never recover.

Thus, court-stripping should be used only in the case of a truly existential emergency.

But, should the nation reach the point where all other options have been tried and failed, and we’re looking at the possible failure of our civilization or humanity, it’s a good weapon to have in what FDR called the “arsenal of democracy.”

TAKING DEMOCRACY BACK FROM THE COURT

Just a few hundred years before the American Revolution, many countries, from Europe to China, had legal policies forcing commoners to be tortured before their testimony in court could be considered legal and credible. Average people had no rights, and the king and the elite owned literally everything.

If one were to imagine power and wealth as a pyramid, the top 1 percent were at the very top, and power and wealth decreased as the pyramid got wider, representing more and more people. The vast mass of people were broke or in debt, and powerless.

The American Revolution kicked off with a rebellion against the monopolistic East India Company at the Boston Tea Party, and it sought to flip that pyramid upside down, putting most of the power in the hands of we the people through elected representatives, with the stabilizing and corrective authority of the executive and judicial branches of government.

In 1971, Lewis Powell advised the captains of industry and inherited wealth to reach out and take over the institutions of governance as well as the institutions of social control, including the media and education. Following the lead of Powell, that outreach included seizing control of the Supreme Court itself.

To control the Court, they needed their acolytes to occupy the White House, regardless of what it took to put them there. But even with explicit treason in 1968 (and Ford’s benefit from it) and something that may well have been treason in 1980, Republican presidents were only able to put people on the Court who they hoped would reliably rule on the side of their donor class. It often didn’t work out that way, as the GOP saw, to their frustration, with Republican-appointed justices such as David Souter and Anthony Kennedy.

In part to solve this problem, the donor class, led by a small group of petrobillionaires and their friends, helped fund the Federalist Society, which reached out to law students; found the most reliably conservative among them; and groomed them for future positions on federal courts, including the Supreme Court itself.

In service of great wealth and corporate power, the Court, particularly since the Reagan years, has exacerbated both wealth inequality and poverty among the working class in the United States. These new dynamics are leading to social, cultural, and political instability—crises that Donald Trump exploited in his campaign in 2016.

With the George W. Bush presidency, the American Bar Association’s ratings—previously the gold standard for judges and Supreme Court justices—were diminished in favor of ratings from the Federalist Society. With the Trump administration, the ABA was totally marginalized, and only justices put forward by the billionaire-funded Society were even considered for the Supreme Court.

By putting corporate and property rights over human and voting rights, the Supreme Court has devastated the right to unionize in the United States, destroying what little political and economic power the middle class acquired during the New Deal era of 1933–81.

The Court deprived American workers of their ability to sue employers and forced those with employment contracts out of the courts and into corporate-run privatized “courts” conducting what’s known as binding arbitration.

Simultaneously, the Court made it harder for poor, young, and elderly white people to vote, and struck down a wide range of voting protections for people of color.

These events together have eroded democracy in the United States and elevated the very wealthy to positions of economic and political power not seen since the Gilded Age.

They would be troubling for the nature and future of democracy and the ability of the working and middle classes to reclaim any of the gains they made during the New Deal era.

This is a problem when you’re trying to get out of a depression as FDR did, and it took him five years to persuade the Court—through threats and entreaties—to back down.

But with climate change now representing an existential threat to the future of civilization itself, and the Court occupied by justices who have (through their actions, rulings, and associations) professed fealty to the power of fossil-fuel billionaires and polluting industries, this has become a crisis that requires a serious plan of action.

Therefore, Americans must now consider ways to diminish the power of the Supreme Court, work around it, or pack it as FDR proposed. And, fortunately, the Constitution itself offers several ways to accomplish that, as outlined in this book.

The question now is whether members of the political class—principally the Democratic Party—will have the courage and ability to take on the Court and restore democratic economic and political power to We the People. Are we ready?

The future of the world may depend on it.

NOTES

INTRODUCTION

1. https://www.nytimes.com/2019/03/05/opinion/oppression-majority.html

2. https://www.politico.com/story/2019/02/04/democrats-taxes-economy-policy-2020-1144874

3. https://today.yougov.com/topics/politics/articles-reports/2015/02/08/majority-support-requiring-paid-leave

4. https://thehill.com/policy/technology/364528-poll-83-percent-of-voters-support-keeping-fccs-net-neutrality-rules

5. http://www.pewresearch.org/fact-tank/2018/03/27/americans-complicated-feelings-about-social-media-in-an-era-of-privacy-concerns/

6. https://www.kff.org/health-costs/press-release/poll-majorities-of-democrats-republicans-and-independents-support-actions-to-lower-drug-costs-including-allowing-americans-to-buy-drugs-from-canada/

7. John Locke, ...

ACKNOWLEDGMENTS

Special thanks go to Troy N. Miller, who worked with me for years as a producer and writer for the television show The Big Picture, which I hosted every weeknight for seven years in Washington, DC. Troy worked hard as a researcher, sounding board, editor, and often cowriter on parts of this book, and deserves recognition for it.

At Berrett-Koehler Publishers, Steve Piersanti—who’s the founder and big cheese there—worked with me to kick off this series. It’s been a labor of love for both of us, and I’m so grateful to Steve for his insights, rigor, and passion for this project.

Other people at BK have helped bring this book (and some projects associated with it) to you. They include (alphabetically): María Jesús Aguilo, Charlotte Ashlock, Shabnam Banerjee-McFarland, Valerie Caldwell, Leslie Crandell, Michael Crowley, Sean Davis, James Faani, Matt Fagaly, Sohayla Farman, Maren Fox, Kristen Frantz, Lesley Iura, Kylie Johnston, Arielle Kesweder, Anna Leinberger, Catherine Lengronne, Zoe Mackey, Neal Maillet, David Marshall, Sarah Modlin, Jose Ortega, Courtney Schonfeld, Katie Sheehan, Jeevan Sivasubramaniam (who has helped keep me sane for years), Nina Thompson, Jason VanDenEng, Johanna Vondeling (who edited several of my previous books so brilliantly), Edward Wade, Ginger Winters, Chloe Wong, and Linda Jupiter who did such a great job helping manage the production of this book. BK is an extraordinary publishing company, and it’s been an honor to have them publish my books for almost two decades.

They also provided a brilliant final editor for the book, Elissa Rabellino, who did a great job smoothing and tightening the text while also fact-checking.

Former IBEW President Larry Cohen was a tremendous help with the labor issues in this book (which are detailed in a “bonus” PDF on our website), as were labor attorneys Amanda Jaret and Jessica Rutter. Thanks so much!

Bill Gladstone, my agent for over two decades, helped make this book—and the Hidden History series—possible. Bill is truly one of the best in the business.

My executive producer, Shawn Taylor, helped with booking expert guests into our radio and TV programs, many of whom provided great information and anecdotes for this book. And my video producer, Nate Atwell, is a true visual genius. I’m blessed to have such a great team helping me produce a daily radio and TV program, which supports my writing work.

And, as always, my best sounding board, editor, and friend is my wife, Louise. Without her, in all probability none of my books would have ever seen the light of day.

INDEX

abortion, 89–90, 143–44

anti-abortion movement, 144–51

court-stripping and, 149–51

legislative process and, 92–93

white supremacy and, 144–45

action, community, 108–12

Adams, Abigail, 26

Adams, John, 12, 25–26, 134

Affordable Care Act, 21, 131

Agricultural Adjustment Act, 73

Aiken, Ann, 104–6

Ali, Muhammad, 163n17

Alito, Samuel, 36, 50, 100, 129, 148

Allgeyer v. Louisiana, 71

ambiguous principles, 41–42

Amendments to the Constitution

First, 8, 36, 48–51

Second, 36–37

Third, 57

Fourth, 57

Fifth, 32, 57

Seventh, 57

Eighth, 57

Tenth, 81

Thirteenth, 70, 81, 141

Fourteenth, 7, 34, 71, 81, 82, 83, 141

Fifteenth, 81, 141

Twenty-sixth, 141

Twenty-seventh, 140–41

American Bar Association ratings, 156–57

American Legislative Exchange Council (ALEC), ...

ABOUT THE AUTHOR

© Ian Sbalcio

Thom Hartmann is the four-time Project Censored Award–winning, New York Times best-selling author of more than 25 books currently in print in over a dozen languages on five continents in the fields of psychiatry, ecology, politics, and economics, and the number one progressive talk show host in the United States.

His daily three-hour radio/TV show is syndicated on commercial radio stations nationwide, on nonprofit and community stations nationwide and in Europe and Africa by Pacifica, across the entire North American continent on SiriusXM Satellite Radio, on its own YouTube channel, via podcast, on Facebook Live, worldwide through the US American Forces Network, and through the Thom Hartmann app in the App Store and for Android. The show is also simulcast as TV in real time into over 60 million US homes by the Free Speech TV network on Dish Network, DirecTV, and cable TV systems nationwide.

He has helped set up hospitals, famine relief programs, schools, and refugee centers in India, Uganda, Australia, Colombia, Russia, Israel, and the United States. Formerly rostered with the state of Vermont as a psychotherapist, founder of the Michigan Healing Arts Center, and licensed as an NLP Trainer by Richard Bandler, he was the originator of the revolutionary Hunter/Farmer Hypothesis to understand attention deficit hyperactivity disorder (ADHD).

In the field of environmentalism, Thom has cowritten and costarred in four documentaries with Leonardo DiCaprio, and is also featured in his documentary theatrical releases The 11th Hour and Ice on Fire. His book The Last Hours of Ancient Sunlight, about the end of the age of oil and the inspiration for The 11th Hour, is an international best seller and used as a textbook in many schools.

Thom lives with his wife of 48 years, Louise, and their two dogs and three cats, on the Columbia River in Portland, Oregon. They’re the parents of three adult children.

BOOKS BY THOM HARTMANN

The Secret History of Guns and the Second Amendment

ADD: A Different Perception

Adult ADHD: How to Succeed as a Hunter in a Farmer’s World

The Last Hours of Ancient Sunlight:The Fate of the World and What We Can Do Before It’s Too Late

Unequal Protection: How Corporations Became “People”—and How You Can Fight Back

The Crash of 2016: The Plot to Destroy America—and What We Can Do to Stop It

Screwed: The Undeclared War Against the Middle Class—and What We Can Do About It

Rebooting the American Dream: 11 Ways to Rebuild Our Country

The Thom Hartmann Reader

Walking Your Blues Away: How to Heal the Mind and Create Emotional Well-Being

The Prophet’s Way: A Guide to Living in the Now

Legacy of Secrecy: The Long Shadow of the JFK ...

Also in the Hidden History series

Taking an in-depth, historically informed view, the first book in the Hidden History series examines the brutal role guns have played in American history. Ever practical, Hartmann identifies solutions that can break the power of the gun lobby and put an end to the alarming reality of gun violence in the United States.

Paperback, ISBN 978-1-5230-8599-6

Digital PDF, ISBN 978-1-5230-8600-9

Digital ePub, ISBN 978-1-5230-8601-6

Digital audio, ISBN 978-1-5230-8603-0

In today’s America, only a slim majority of registered voters show up for elections. Is this their responsibility alone, or the insidious result of policies made by our elected officials? In the third book in the Hidden History series, Hartmann shows how the war on universal suffrage has been waged for centuries, and is far from over.

Available at bookstores and online on February 4, 2020

Paperback, ISBN 978-1-5230-8778-5

Digital PDF, ISBN 978-1-5230-8779-2

Digital ePub, ISBN 978-1-5230-8780-8

Digital audio, ISBN 978-1-5230-8781-5

Berrett-Koehler is an independent publisher dedicated to an ambitious mission: Connecting people and ideas to create a world that works for all.

Our publications span many formats, including print, digital, audio, and video. We also offer online resources, training, and gatherings. And we will continue expanding our products and services to advance our mission.

We believe that the solutions to the world’s problems will come from all of us, working at all levels: in our society, in our organizations, and in our own lives. Our publications and resources offer pathways to creating a more just, equitable, and sustainable society. They help people ...

Table of Contents

Cover

Title Page

Copyright Page

Contents

Introduction: A Rebellion against the Monarchy

In the Beginning . . .

A Suicide Pact

Corporate America Seizes the Court

Part One: The Hidden History of Judicial Review

The Founders’ Vision

The Glue That Binds Us Together

A Bold Experiment

Debating the Supreme Court

Where Does the New Buck Stop?

The Power Grab

Whoever Controls the Law Controls the Country

Jefferson: “The People Themselves”

Who Decides What the Constitution Means?

The Powell Memo and the Court

Partisan Politics in “Original Intent”

Originalism Is Joined by Textualism

One True Spokesman

Clear Preferences versus Ambiguities

The Corruption of the Court Itself

Fossil Fuels Seize the Court

Right-Wing Takeover and Corporate Handouts

The Constitution Afflicts the Afflicted and Comforts the Comfortable

The Constitution Protects Property and Its Owners

The Constitution Protects Killers and Slave Owners

The Constitution Prefers Property Rights to Human Rights

The Constitution Protects Takers, Not the Taken

Part Two: The Hidden History of the People and the Court

The Supreme Court versus Labor

Haymarket and Allgeyer: The Public Turns against Labor and the Court Follows

The Great Depression: The Public Embraces Labor and the Supreme Court Follows

FDR Tries to Pack the Supreme Court

The Court Devastates Union Rights

The Supreme Court versus Civil Rights

“Separate but Equal”: Created by the Court, Ended through Popular Struggle

The Road to Plessy

Charles Houston and the Long Slog to End Jim Crow

Brown: The Supreme Court Overrules Itself

How Roe Empowered the Right

The Supreme Court and the Environment

Local Zoning Law as Early Environmental Law

Protecting the Environment Goes Federal

The Planet’s Future on Trial

In Nature’s Trust

Our Children’s Trust

A New Hurdle to Climate Justice

How Communities Fight Back

How Idealogues and Partisans Seized the Court: From Nixon to Trump

Reagan and the Court

George H. W. Bush Avoids Prosecution

George W. Bush and the Court

An Astroturf Resistance in Florida

Trump and the Court

If We’d Had Clean Elections

Part Three: To Save the Planet, Democratize, and Modernize the Supreme Court

Regulating the Number of Justices on the Court

Term Limits

Cameras in the Courtroom

The Constitutional Amendment Remedy for an Out-of-Control Court

The Last Resort: Strip the Courts

The Roberts Plan to Strip the Courts

Court Stripping in the 20th Century

A Planetary Emergency

Taking Democracy Back from the Court

Notes

Acknowledgments

Index

About the Author