Is the Supreme Court Seriously Above the Law?
It’s time to establish an ethics standard for the Court, as well as passing a law that legalizes abortion nationwide that can’t be struck down by 5 handpicked religious fanatics
Pramila Jayapal and Elizabeth Warren just introduced legislation to impose a code of judicial ethics on the Supreme Court. Today Chuck Schumer is holding a vote in the Senate to legalize abortion nationwide.
The barrier to either becoming law is the Supreme Court’s own argument that it’s essentially above the law with regard to ethics and that — on constitutional issues — it has final say and can’t be overruled by Congress without a constitutional amendment.
For decades, conservative justices have openly flaunted judicial ethics by participating in politics and taking millions in gifts from billionaires with business before the Court.
And now, for the first time in a big way since its 1896 Plessy v Ferguson “separate but equal” ruling, the Court is preparing to take away a right Americans have taken for granted for generations.
But is the Court really and truly above the law?
Once upon a time now-Chief Justice John Roberts asserted that Congress could pass laws to “regulate” the Supreme Court, limiting and making “exceptions” to what rights and laws they could rule on.
He made the argument as a lawyer for President Reagan, who was looking for ways to reverse Roe v Wade without the consent of the Court, which was then firmly in the camp of it being settled law.
His logic could, today, be used by Congress to pass a law allowing abortion across the nation, and, for good measure, adding a requirement that the Court adhere to the same standards of judicial ethics already set in place for all other federal courts.
How Congress could “court-proof” abortion legislation — and John Roberts’ role in evaluating its possibility — is an amazing and almost entirely unknown story.
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 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.”
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.”
They noted that the legally favored “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.
To help the white population catch up with the nonwhites, the AMA and their white supremacist allies succeeded by the 1890s in putting into place laws that forbade abortion in virtually every state (as I documented last week).
The laws were largely ignored in “nonwhite” communities so they could continue to get abortions, 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 then-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 Weyrich, 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 antiabortion message that would preserve white dominance of America only made sense for the Republican Party and the conservative movement.
Initially, the problem was that Reagan, as California governor, had supported and signed the nation’s most liberal law legalizing and making 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.
“That year  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.”
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 racial 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 searching for ways to satisfy an explosively growing antiabortion movement that was daily being jacked into hysteria by Falwell and his supporters (a process that would soon lead to the first murder of an abortion doctor in the history of the United States).
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 into his administration included Samuel Alito and John Roberts.
Starr tasked Roberts, a staunchly antiabortion 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’s titled: “Proposals to Divest the Supreme Court of Appellate Jurisdiction: An Analysis in Light of Recent Developments.”
In it, Roberts proposes using Article III, Section 2 of the Constitution to “regulate” and provide “exceptions” to what the Supreme Court could do by having Congress pass a law reversing Roe v Wade and Brown v Board, saying in the body of that law they could no longer rule on the issues of abortion and racial integration in education because neither is mentioned in the Constitution.
The process he proposed using is called “court stripping,” and involves Congress passing a law saying that Courts can’t rule on the constitutionality of a specific piece of legislation or even broad types of legislation.
(Wonk alert: the next 29 paragraphs summarize Roberts’ arguments; if you’re not interested in the legal details, just scroll down…)
Roberts wrote that he had found in 1981:
“[O]ver twenty bills 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.” (parenthesis Roberts’)
What Roberts and his researchers had found could shake the foundations of American jurisprudence, altering the power the Supreme Court seized for itself in Marbury v Madison in 1803.
Court-stripping is based on the Exceptions Clause of Article III, Section 2 of the Constitution, which stipulates that the federal courts may rule “with such Exceptions, and under such Regulations as the Congress shall make.”
Roberts noted eagerly in his memo that:
“[T]he 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 racial integration) and persuade Congress to use the Exceptions Clause to render the Supreme Court 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 both racial integration and abortion.
“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 continued, in agreement with Ervin:
“[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, he wrote:
“[T]he exceptions clause ‘was not debated’ by the Committee of Detail which drafted it, or the whole Convention.”
Citing the Federalist, no. 81, Roberts wrote:
“Hamilton noted that the clause would enable ‘the government to modify [courts’ 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.’”
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’]
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 [Supreme Court’s] jurisdiction altogether, but particular classes of questions may be subjected to re-examination and review, while others are not.”
Each case strengthened the idea that Congress could simply pass a law, without even needing a super-majority, 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.”
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.”
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, its power to forbid the Supreme Court from keeping either abortion or school desegregation legal.
Ultimately the Reagan administration didn’t act on Roberts’ memo — he also built in it a case against court-stripping — because they didn’t have the political will or power at the time.
There wasn’t a nationwide sentiment that the Court was so corrupt that the nuclear option — Congress overruling it — should be pulled. After all, the precedent, once established, would forever change the balance of power between the Court and Congress, putting it back to where the Founders and Framers believed it should be.
Today, though, that sentiment has changed. The Court was so politicized by Trump and McConnell, and now by its own extremism, that its credibility is in the toilet. (Greg Olear lays out exactly how the Court was corrupted in a brilliant screed at his Prevail newsletter.)
Meaning this is the perfect time to revisit Roberts’ research and regulate the Supreme Court with regard to abortion and ethics.
Back on March 15th I wrote that Congress should pass and impose a code of judicial ethics on the Supreme Court, documenting many of the clear ethical violations conservatives on the Court today had committed that would have led to severe punishment were they on any other federal court.
The two men met in the mid-1990s, a few years after Justice Thomas joined the court. Since then, Mr. Crow has done many favors for the justice and his wife, Virginia, helping finance a Savannah library project dedicated to Justice Thomas, presenting him with a Bible that belonged to Frederick Douglass and reportedly providing $500,000 for Ms. Thomas to start a Tea Party-related group. They have also spent time together at gatherings of prominent Republicans and businesspeople at Mr. Crow’s Adirondacks estate and his camp in East Texas.
Had Thomas merely been a federal appeals judge, the full weight of the federal code of judicial ethics would have come down on him.
It’s time to establish an ethics standard for the Court, as well as passing a law that legalizes abortion nationwide that can’t be struck down by 5 handpicked religious fanatics.
When I first wrote about this in March, an attorney I respect tweeted at me that such a thing was impossible because the Supreme Court was above regulation by Congress.
I offer this article in rebuttal and continue to believe that Congress fully has the power to regulate the Supreme Court, even if they must assert that power within the legislation itself as Roberts suggested Reagan champion back in the 1980s.
Now Congresswoman Pramila Jayapal and Senator Elizabeth Warren have introduced legislation to clean up the Supreme Court (along with cleaning up our “money in politics” problem they created with Citizens United).
Titled The Anti-Corruption and Public Integrity Act, their bill would bring the many abuses — like accepting lavish, million-dollar gifts and payments from rightwing thinktanks and billionaires (as Thomas has done) — of conservatives on the Court to an end.
Combine that with a law legalizing abortion nationwide like the one being voted on today in the Senate, the Women’s Health Protection Act, and we’ll have reversed Alito’s draft decision and put a cork in the proverbial bottle.
It’ll probably require larger Democratic majorities in both the House and Senate to pull off either or both, but polls suggest the abortion issue may help get America there this fall.
Let Congress know you want abortion legalized nationwide and the Supreme Court regulated…and you agree with Justice Roberts that it’s entirely within their power to do so.