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Letter: Constitution continues to breathe

I, as a retired judge, am interested in recent discussions about the Supreme Court of the United States and the political back and forth about filling vacancies on that court. We all should be interested, especially those of us who are concerned about our democratic republic.

Court stacking is what we recently saw Trump and Republicans doing to SCOTUS: ramming through an appointment of a judge (Judge Amy Coney Barrett) that meets the president’s litmus test of protecting him from electoral defeat, throwing out the Affordable Care Act, overruling Roe v. Wade, expanding gun rights, etc. We know that because he has said so repeatedly.

Conservative groups (Judicial Crisis Network, DC Strategies, BH Fund, America Engaged, Freedom & Opportunity Fund) have spent $250 million dollars in dark money in the last few years vetting, promoting and getting their judges (The Federalist Society) onto SCOTUS and other courts. With Barrett on SCOTUS, six justices, all Republicans, will have been members of the Federalist Society. While Judge Barrett denied promising Trump her vote, these groomed judges don’t have to make a direct deal with the devil when their names are proffered at the tip of the dark money spear. Years of membership, lectures, law review articles and sponsored speeches speak loudly.

Dark money, money untraceable to its sources, was authorized by the conservative majority on SCOTUS several years ago. Those justices claim to interpret the U.S. Constitution as that document was originally written. They say that they are originalists. They determined that Freedom of Speech in 1787 meant that political action committees could raise and spend money today without identifying their donors (dark money). I invite you to read the entire Constitution in an effort to find that language. Expand your research to other existing laws dealing with freedom of speech in 1787. Their interpretation does not exist. They criticize liberals as activist judges while they as conservatives hide behind their pointed accusatory fingers.

The dark money groups have been intentionally and purposefully creating and paying for legal disputes regarding hot button social issues in the hopes of reversing prior case decisions of the court. They have drawn media attention to those cases (Roe v. Wade, Obamacare, Second Amendment, etc.) as they have journeyed towards their rendezvous with SCOTUS. SCOTUS will hear one of those cases set up to throw out Obamacare during the pandemic one week after the election. But the social issue cases are not their real focus. The real focus of the dark money conservatives is on seemingly mundane cases that are designed to put more money into the pockets of the super-rich.

Do you know what those cases are? Of course not. We are not meant to. The monied interests have won eighty out of eighty of those cases on a conservative majority vote of 5 to 4. 80-0. Those cases are all about money and the power to make more money. The monied interests are hiding in plain sight while the well-publicized media circus is on social issues. It’s a billionaire shell game. The richest get richer. The rest of us, regardless of our political beliefs, get screwed.

Court stacking disgusts me because it impugns the integrity of the court. It creates the impression that those nominated to judicial positions owe the president (and his dark money interests) their loyalty and must vote as he publicly anticipates that they will. And when they occasionally show an independent streak (Obamacare and same sex marriage), they are publicly criticized. Court stacking undermines the reputation of the independent judiciary and a constitutionally co-equal branch of government.

Court stacking has not always been the case. Liberal Ruth Bader Ginsberg was confirmed by a bipartisan vote of 96-3. Conservative Antonin Scalia was later confirmed by a bipartisan vote of 98-0. They were known to the Senate because they had served as federal appellate court judges. Republican presidents have placed nineteen justices onto SCOTUS since Eisenhower with bipartisan support. Similarly, Democratic presidents have put nine on the court during the same period. Republicans appointed two out of three SCOTUS justices during the last 70 years. Yet they still game the system with dark money and judges who share their interests. The richest conservatives are no longer interested in small government. They are harnessing the powers of our government and focusing it on making more money for themselves. It’s a financial coup. There is no trickle down. Money talks and democracy walks.

Court packing is the idea that a president and his/her Congressional majority can expand the number of justices on the court and then fill those new positions with judges whom they believe to be more politically consistent with the president’s views. Therefore, if the nine member court has six perceived conservative justices and three who are considered to be liberal, then the new president and Congress might add four or more judicial positions, fill those vacancies with liberals, and change the perceived political balance of the court.

Court packing also disgusts me for the same reasons court stacking turns my stomach: it would impugn the integrity and independence of the court.

Court realignment is the most fascinating idea for me. The U.S. Constitution created only one court: SCOTUS. It then decreed that Congress could create all lower federal courts. It also left it to Congress to decide the jurisdiction of or issues to be decided by the federal courts. Therefore, Congress can strip SCOTUS of the authority to decide certain issues, including the constitutionality of statutory law passed by Congress and signed by the president. That means Congress can pass laws on climate change, abortion, gun rights, health care, taxes, regulations and other issues while telling SCOTUS to take a hike. Then Congress can legally decide the constitutionality of its own laws.

Alternatively, Congress could create another federal appellate court and direct that all civil appeals go to that court instead of SCOTUS. In other words, the hot button issue cases could be removed from being adjudicated by SCOTUS and sent to this new court of civil appeals. Congress could establish that new court with nine new justices and confirm those justices after presidential nomination. I’m guessing that a Democratic president and Congress would not select and confirm those new justices from the Federalist Society. Conservatives floated these ideas during the civil rights movement. SCOTUS would be left to handle only criminal matters.

The U.S. Constitution is a living, breathing document. Can you hear me now?

— Charles Wieland,


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