CONTEMPT OF COURT

I plead guilty to contempt of court, the Supreme Court.

I wasn’t always guilty of this particular crime. In my youth I was properly reverent and law-abiding, and, beginning in grade school when I learned about the three branches of our government, I was taught to look up to the men on the Supreme Court. Somehow it seeped into my leaky brain that people in high places reached those lofty summits on merit, and I believed that those aristocratic old white men (which they invariably were) on the court overflowed with the judicial qualities of wisdom, impartiality, an infallible sense of fundamental fairness, and a desire to do what was right that was not swayed by bellowing public opinion. Justice was blind. Naïve of me, but I was a young, blue-collar kid from a working class neighborhood, in a working-class school and easily corrupted.

Looking back, I see that we lower-class kids took pride in our hometowns, our states, and our leaders, whether they nurtured us or not. I learned that the great city of St. Louis was graced with the presence of the Old Courthouse, where the Supreme Court heard the famous Dred Scott case. I confess that I was childishly proud that my hometown was associated with such an important national landmark and such a famous case. I confess that I didn’t see the building or read about the case until I went away to college

The criminal seed of contempt was planted in a college history course when I learned that Dred Scott lost, remained a slave, and the Chief “Justice” wrote that the Constitution never intended for black people to be citizens. Nothing to be proud of in that contemptible decision.

I was slightly embarrassed for my ignorant pride. How could I not have known the contemptible outcome of the case? Perhaps I was in denial because I didn’t want to hear anything bad about my hometown, or perhaps I was not a good student (two mutually reinforcing probabilities), but somehow the idea that the court ruled in favor of Scott and against slavery had stuck in my starry-eyed mind. Why else would my teachers mention, with what I took to be pride in their voices, that venerable building and historic case?

My life of crime slowly began to take root.

For many years after my disillusionment, I didn’t think much about the Supreme Court one way or another. The Abe Fortas scandal came and went without a strong opinion on my part, partly because I was becoming a conspiracy theorist and suspected that Nixon’s Dirty Tricks gang was involved.

Well into adulthood, I had my first close up and personal experience with a judge—really, a magistrate, the bottom rung on the judgeship ladder. After one of my arrests I was summoned to appear before the magistrate in the same federal building I had blockaded to protest our government’s support for the murderers and rapists in the Guatemalan and Salvadoran military. The proceedings were interesting. When the arresting policeman identified me in court because I was wearing the same colorful wool shirt I had worn on the day of the arrest, the judge told him he had a lot to learn about evidence. However, I confessed my crime and informed the judge, under oath, that, as someone who had lived, worked, and studied in Central America, I had expert knowledge about the situation and was required by law to do what I could to stop our country’s support for the criminals. I cited an arcane law I had stumbled upon in my hurried research. The judge got somewhat flustered and began looking for the cite in one of his law books. When I gave him the full citation he kindly informed me that I was citing British common law, found me guilty, and sentenced me to community service.

Since then, I have testified numerous times on country conditions for indigenous Guatemalans, usually telephonically. The immigration judges (again, magistrates) were usually quite pleasant. I later heard from one respondent’s attorney that after I was off the phone, the judge told the government attorney that they had a problem: it looked like he would have to grant the case because there was no rebuttal to my testimony. He thought granting asylum was a problem. Contemptible.

I have seen a number of immigration judges in action, and one of my prejudices (I have many, and will confess to my bigotry in a later blog) is that female judges are, as a rule, more compassionate. However, one female judge, was highly contemptible. In the case of an indigenous woman from Guatemala the judge found no past persecution despite the fact that soldiers had destroyed the woman’s family and gang-raped her. The Ninth Circuit overturned the decision, writing that they found persecution written on every page of the trial transcript. There are contemptible judges and admirable judges.

After college I enjoyed reading history and learned a great many things about our great country, things not taught in grade school or high school history, or even entry level college history, for fear, I suppose, that they would shock or corrupt impressionable young minds. I learned that our glorious country had a lot of skeletons in its closet, a great many blemishes on its not-so-smooth skin. That’s the trouble with history: if you look too closely you see a great many wrinkles and warts, and even some melanomas. I learned about the often violent, always ugly labor struggles in the U.S. in which the courts nearly always sided with Big Business and against labor. I learned that money talks and like certain political bullies, drowns out dissent. I learned that in 1918, the Supreme Court ruled that Congress could not ban child labor in interstate commerce. It was a states’ rights issue. Dissenting Justice Holmes reminded the Court that it had upheld a tax levied by Congress on dyed oleomargarine that was so high it effectively prohibited its manufacture. That argument fell on selectively deaf ears.  States’ rights lose when they do battle with the diary lobby, but there was no children’s lobby to defeat the mine owners who saw the advantage of having little people working in their cramped mines, and, as Snow White’s dwarves were employed elsewhere, they settled for poverty-stricken children. FDR’s Fair Labor Standards Act of 1938 remedied this truly contemptible ruling. By then the depression era obstructionist “Justices,” perhaps because of public opinion, stopped tossing their sabots in the New Deal machinery.

Reading about the rise of Hitler in Europe, I learned that his ideas about eugenics were imported from the land of the free and home of the brave. In 1927, the admirable child-defender Holmes rode the pseudo-scientific wave created by the eugenicist winds and wrote: “We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.” Hard to come up with a more urbane yet contemptible decision, you would think, but the court has done so time and again. Some judges are admirable and contemptible.

In a recent decision of abortion, Injustice Thomas, who quite likely earned his seat through perjury rather than wisdom and a sense of fundamental fairness, confused abortion and birth control with eugenics (eugenicists to a man—and they were nearly all men—vehemently opposed abortion as well as birth control). Is he unable or unwilling to understand the difference between state mandates and personal choice, or is he not above a little dishonest propaganda to achieve what he views as a greater good?

Our contemptible court has a long history of taking the fundamentally unfair side when it comes to race. Striking down a 19^th century Civil Rights Act, upholding the imprisonment of Japanese Americans, and upholding segregation until finally, in 1954, unanimously getting it right in Brown v Board of Education.

These decisions, the contemptible and the admirable, often reflected the prevailing attitude of society or at least the most powerful elements of society at the time they were pronounced. This reflection of social attitudes is not necessarily bad, but it does demonstrate a contemptible pretense and hypocrisy in many “Justices” who claim to be impartial arbiters above the fray. Many adopt the attitude and language of impartiality but reach a foregone conclusion that they justify with lengthy arguments written in legalese and backed by selective research in the hopes of obscuring the lack of fundamental fairness. Mr. “Justice” Scalia was a good example. In Gore v. Bush he and the other Republicans “Justices” wanted their candidate to win. To be fair and impartial they stopped the counting of questionable ballots until they could hold a hearing and issue a decision. When they finally held a hearing they permanently halted the counting, stating that it was then too late to meet the deadline for the Safe Harbor requirement, neglecting to mention that they caused the delay or that the Safe Harbor requirement wasn’t actually a requirement.  They became activist judges, they kind that they pretended not to be, the kind they vehemently criticized, and gave the election to their preferred candidate.

Scalia reappeared with his excess verbiage intact in Heller, the Second Amendment case, where he marshalled a great militia of words about the purpose of prefatory (introductory) clauses and operative clauses and laid down a tremendous field of fire to advance the meaning of words such as “militia,” “keep,” “bear,” and “arms,” no doubt impressed with the historical research of his clerks. No doubt out of ammunition, he abandoned “well regulated,” merely stating that it obviously meant discipline and training. He found that authorities in our nation’s capital could not ban handguns and require trigger locks on assembled firearms when not in use, surely, in my experience, requirements that would fall under discipline and training. Long ago, I was obligated to bear arms in a well-regulated militia. I was not issued nor permitted to keep a handgun on my posts in the U.S. I was on occasion issued a rifle that I could not keep, but was allowed to bear that arm only for training purposes with a carefully limited number bullets. Overseas, I was permitted to bear and keep a rifle for a year but was required to keep the safety on, except in certain obvious situations. 

Originalist Scalia deployed his automatic weapons to spew out a crossfire consisting of verbs and nouns and armor-piercing adjectives to pin down a colleague who claimed that an originalist interpretation of the Second Amendment might well mean that our well-regulated militia could not be prohibited from owning muskets.

As much as I find many of Scalia’s decisions contemptible, I am entertained by his caustic comments against dissenters. Perhaps I enjoy them because of a favorable comparison: they are much wittier and well thought out than the childish barbs hurled against the great many perceived enemies by the bully currently in the White House pulpit. 

Often, the wisdom and fairness in the rulings of the “Justices” seem more aligned with those of Roy Bean than Solomon.  In Herrera, 1993, the Court effectively ruled that executing an innocent person was not prohibited by the Constitution, if that person had been previously found guilty. New evidence showing innocence need not be considered because of the “disruptive effect on the need for finality in capital cases…” And in a concurring opinion: “…there is no basis in text, tradition, or even in contemporary practice (if that were enough) for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.” In effect, they said you only get one day in court and then off with your head.

The dissent in Herrera brought up the nagging little matter of the prohibition of “cruel and unusual punishment” mentioned in the Eighth Amendment. In doing so, the dissent perhaps did not give due weight to the fact that executing an innocent person was not unusual in the United States, where a great many innocent persons, usually people of color, have been executed. Further, the dissent brought up the Fourteenth Amendment’s prohibition against the deprivation of “life, liberty, and the pursuit of happiness…without due process,” and suggested that due process might require looking at new evidence. Ridiculous.

The Injustices were impatient with these arguments and complained that the dissent “would have the District Court “make a case-by-case determination about the reliability of the newly discovered evidence…” A case-by-case determination? Horrors. I feel certain that Judge Bean would have applauded the decision. After all Judge Bean is reputed to have instructed a jury in a horse-thief case: “You’ve got a greaser and you’ve got a missing horse. Do your duty.”

I am not alone in my contempt. It seems that a great many Senators have such contempt for the court that they approve perjurers to sit on it.  I watched the Anita Hill hearings and my contempt for the old white men in the Senate blossomed. I believed Anita Hill. I also believe that many Senators who voted to seat Thomas believed her or at least worried that she was truthful, otherwise why not hear (and let the public see and hear) the other witnesses who backed Hill up? They wanted to seat Thomas for political reasons and were certain willing to violate standards of fundamental fairness. And to them, sexual harassment of subordinates was just normal male behavior.

I listened the Blasey-Ford hearings and found her completely believable. Again the old white men who controlled the Senate refused to allow testimony that would back her up because the fix was in from the start. They based their decision on the falsehood that it boiled down to he-said-she-said and found them both credible, while refusing to allow testimony from a number of witnesses that would have made it they-said-he-said. Despite the likelihood that Kavanaugh was a sex offender and a perjurer, and despite his rant that it was all a Clinton conspiracy, which should have disqualified him for his obvious lack of judicial of temperament, he was approved. Which goes to show the contempt those old white men in the Senate have for the Supreme Court.

We are all human and make mistakes, but Supreme Court decisions can have terrible consequences, such as an extra 20 years of child labor in the mines and factories. It is farcical to think that those Gilbert and Sullivan figures in their silly black robes—at least they lost the wigs—seated high above the masses (traditions passed from upper class British forebears to our classless class society) can always set aside their personal preferences and prejudices, can and should completely ignore changing social attitudes.

Our makeup, genetic and experiential, has great influence on our thought processes and decisions. In the recent DACA decision Sotomayor was the sole Justice who believed that the Trump administration’s decision to dump DACA was “contaminated by impermissible discriminatory animus.” How could any judge or any reasonable person who’d been paying attention not have noted the racism in many of Trump’s statements and actions and then not think that racism was a factor in the decision to get rid of DACA? But even the so-called progressives on the court denied that racism was a factor. Were they simply too afraid to publicly state that they believed Trump was racist? Was Sotomayor the only one alert to the racist reasoning because she is the only Latina on the Court? Or was the reverse true: the others did not see the racist reasoning because they are not Latino? Is it more difficult to recognize racism if your race is not the victim? Or to see the injustice of class if not the victim?

Who we are influences our decisions. The most contemptible Injustices are the loudest in denying this cultural universal. They go to great lengths to maintain the persona of impartial arbiters who read the constitution as if it were a religious text and they were literalists. Well, the earth and the universe are more than just a few thousand years old and living things keep evolving, and there is little proof that the humans who wrote the Constitution did not want it to evolve.

I do admire some justices. I had no contempt for Thurgood Marshall or Ruth Bader Ginsburg. They worked all their lives for fundamental fairness for people of all races and genders. Marshall was cynically replaced by a black man who opposed efforts to remediate past racial injustices, such as affirmative action, and Ginsburg by a handmaid (not from the Atwood novel but from the religious sect People of Praise in which all the leaders are men and the followers women). Being a failure at predicting the future—I was confident that U.S. voters would never elect a second-rate actor like Reagan or a third-rate performer like Trump, not realizing that most voters prefer a performer pretending to be a politician to the real thing—I cannot say how Barrett will perform on the court. Optimists have great faith in humanity and hope that she will grow. Contemptimists like me have great faith in the judgment of Trump, McConnell, and Graham and believe that the fix is in and Barrett will please the anti-feminist, anti-abortion, anti-LGBTQ, hard-right conservative crowd. Like her contemptible cohorts, she will be the alchemist who transmutates her personal opinions into glittering legal opinions.

In support of my position, I offer my personal opinion: If Barrett were ethical she would have refused the nomination because of the laughable hypocrisy shown by those who rushed her through the process, but she has made herself complicit because her ambition to wear the robes and sit above humble humanity overruled her ethics. Or worse, her certainty that by accepting the nomination she could divert our ship of state from the sinful course set by the likes of Marshall and Ginsburg.  

Fifty years of criminal contempt. Fifty years of guilt. Never achieving familiarity with the “Justices,” I nevertheless got as close as I wanted to get by reading their decisions, close enough to breed contempt. I blame myself and I blame the victims. If they didn’t want me to get that close, they shouldn’t publish those contemptible decisions that shift the tectonic plates of society to align with their world views. At least the “Justices” prohibit TV cameras in the court. The contemptible old white men in the Senate foolishly allowed TV cameras during the Hill and Blasey-Ford hearings, resulting in a tsunami of contempt that has and will continue to realign the gender and color of that body.