Chief Justice Warren Burger

Supreme Court Could Be Repealing The 20th Century In Challenge To 1984 Chevron Case Decision

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Conservative right wing groups are now attempting to repeal the 20th century concept of federal government regulation of the environment, financial markets, public health, and the workplace, in a challenge to the Chevron USA vs National Resources Defense Council case of 1984, decided by a unanimmous 6 member court of Republicans and conservatives.

The decision was written by Associate Justice John Paul Stevens, and agreed with by Chief Justice Warren Burger, and Associate Justices William Brennan, Lewis Powell, Harry Blackmun, and Byron White. All but White were appointed by Republican Presidents. And three Justices did not participate, Sandra Day O’Connor, William Rehnquist, and Thurgood Marshall, with only Marshall appointed by a Democratic President.

So the Court of 1984 had SEVEN Republican appointments, but reasonable Justices, as compared to the present Supreme Court of six Republican appointments.

So the case now being considered is an attempt to wipe out the federal regulatory state–in effect wiping out the Progressive Era of Theodore Roosevelt and Woodrow Wilson; the New Deal of Franklin D. Roosevelt and followup by Harry Truman and John F. Kennedy; the Great Society of Lyndon B. Johnson, and followup by Richard Nixon, Jimmy Carter, and Bill Clinton; and the commitment to further reforms by Barack Obama and Joe Biden! Notice that Richard Nixon is included with this list of Democratic Presidents who promoted federal regulation and reforms, the one Republican, who despite his shortcomings, actually added to federal regulation!

We are at a turning point, where our federal government could be weakened and go back as far as the Gilded Age of the late 19th century by an extremist Supreme Court. This is a constitutional crisis of massive proportions, and puts American democracy at risk!

Supreme Court Justice Quality Way Down From Decades In The Past!

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Republican Party Presidents since 1953 have selected the vast majority of Supreme Court Justices!

Dwight D. Eisenhower 5
Richard Nixon 4
Gerald Ford 1
Ronald Reagan 4
George H. W. Bush 2
George W. Bush 2
Donald Trump 3
Total 21 with William Rehnquist listed twice under Nixon and Reagan

in 40 years of Republican Presidents

Democratic Party Presidents have had far fewer appointments!

John F. Kennedy 2
Lyndon B. Johnson 2
Jimmy Carter 0
Bill Clinton 2
Barack Obama 2
Joe Biden 1
Total 9

in 32 years of Democratic Presidents

So twice as many Repubican appointments as Democrats!

Eisenhower had Chief Justice Earl Warren, Associate Justice Potter Stewart, and Associate Justice William Brennan stand out!

Nixon had Chief Justice Warren Burger and Associate Justice Harry Blackmun stand out!

Ford had Associate Justice John Paul Stevens stand out!

Reagan had Associate Justice Sandra Day O’Connor and Associate Justice Anthony Kennedy stand out!

H W Bush had Associate Justice David Souter stand out!

On the Democratic side:

Kennedy had Associate Justice Byron White stand out!

Johnson had Associate Justice Thurgood Marshall stand out!

Clinton had Associate Justice Ruth Bader Ginsburg and Associate Justice Stephen Breyer stand out!

Obama had Associate Justice Sonia Sotomayor and Associate Justice Elena Kagan stand out!

Biden had Associate Justice Ketanji Brown Jackson stand out!

So 9 Republican appointments and 7 Democratic appointments have stood out!

Now, sadly, we have a group of appointments by Republican Presidents (the two Bushes and Donald Trump) that have been extremist and involved in conflicts of interest, and are not interested in being in the moderate center of constitutional law!

These include Clarence Thomas, Samuel Alito, Brett Kavanaugh, Neil Gorsuch, and sadly, Chief Justice John Roberts!

50 Years Since Roe V Wade: The Battle Is Not Over, And Must Continue!

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Today marks the 50th Anniversary of the Roe V Wade Abortion Rights decision, written by a 7-2 majority of the Supreme Court, including five Republican appointments to the Court, including the author of the opinion, Associate Justice Harry Blackmun (appointed by Richard Nixon). Chief Justice Warren Burger, and Associate Justices William Brennan, Potter Stewart, and Lewis Powell joined the majority, along with Democratic appointments William O. Douglas and Thurgood Marshall. The only dissenters were Democratic appointment Byron White and Republican William Rehnquist.

After a half century, one would have thought that the right of a woman to control her own health care, and her body, would have been clearly permanent law.

But, instead, the extremist right wing Supreme Court, with appointees of George H. W. Bush, George W. Bush, and Donald Trump, by a 6-3 vote eviscerated abortion rights in Dobbs V Jackson Women’s Health Organization, on June 24, 2022.

This caused nationwide reaction, leading to six states insuring the right of abortion by vote of the people of those states, and defeat of extremist anti abortion candidates for Governor and other state wide executive offices in many states by the time of the Midterm Elections of 2022.

But the anti abortion extremists are now out to create a nationwide ban on abortion, which, if the Republicans win the US Senate and the White House in the 2024 elections, could be a reality!

This has been a 50 year effort by so called “Pro Life” forces, which want to impose their personal and religious views on the entire population of the United States, including young girls who should not be having children before adulthood, and also undermines the basic physical and mental health of women, without any concern of the impact.

So the battle for individual freedom must go on, with no relenting on the issue!

Two Republican Majority Courts Supported Abortion Rights, But Not Now In 2022!

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In the case of Roe V. Wade (1973), decided by 7-2, Abortion Rights for women was made federal law, with five of the seven votes being Republican appointments:

Harry Blackmun (Nixon)
Warren Burger (Chief Justice) (Nixon)
William Brennan (Eisenhower)
Potter Stewart (Eisenhower)
Lewis Powell (Nixon)

In Planned Parenthood V. Casey (1992), a later case on abortion, with some limits, the decision was 5-4, with all 5 in the majority being Republican appointments:

Sandra Day O’Connor (Reagan)
Anthony Kennedy (Reagan)
David Souter (HW Bush)
Harry Blackmun (Nixon)
John Paul Stevens (Ford)

All of these Republican appointed Justices were considered to be “conservatives” in their time frame, although Blackmun, Brennan, and Stevens came to be seen as “liberals’ over time, and O’Connor, Kennedy, and Souter came to be seen as “moderates”.

The definition of “conservative” has changed dramatically in the past half century, so all of the Republican Justices would be seen by right wing Republicans in 2022 as “RINOS”, Republicans In Name Only!

In 2022, in Dobbs V. Jackson’s Women Health Organization, all six Republicans voted to end abortion rights, although Chief Justice John Roberts wanted only further limitations on abortion, and therefore dissented while joining the other five Republicans.

These appointments were by two Presidents who lost the popular vote when they were elected by the Electoral College, along with Clarence Thomas appointed by George H W Bush.

Thomas and Brett Kavanaugh both had charges of sexual impropriety brought against them, while Neil Gorsuch gained a place on the Court that was meant for Barack Obama appointee Merrick Garland, and Amy Coney Barrett replaced the recently deceased Ruth Bader Ginsburg just a week before an election in which Donald Trump lost by 7 million votes to Joe Biden, who should have been allowed that appointment.

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

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

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

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

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

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

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

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

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

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

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

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

The Supreme Court Reputation Reaching An All Time Low

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Struggle Of Donald Trump With Chief Justice John Roberts More Dangerous Than Earlier Challenges Of Presidents To Supreme Court Chief Justices

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Donald Trump has challenged Chief Justice John Roberts and the Supreme Court, just as he has challenged every other institution of government, but Chief Justice John Roberts seems well prepared to deal with Trump, if and when he gets out of hand.

It is certainly a dangerous struggle, as Donald Trump has an authoritarian bent unlike any earlier President, but it seems clear that Roberts is ready to do what must be done to keep the President within the Constitution.

Earlier in history, there were major confrontations of Thomas Jefferson and Andrew Jackson with Chief Justice John Marshall; Abraham Lincoln with Chief Justice Roger Taney; Franklin D. Roosevelt with Chief Justice Charles Evans Hughes; Dwight D. Eisenhower and Richard Nixon with Chief Justice Earl Warren; Richard Nixon with Chief Justice Warren Burger; and Barack Obama with Chief Justice John Roberts.

But Trump has demanded that the court system favor him in all of his executive orders, and other executive actions, but the Court has refused to back him on a regular basis, leading Trump to say that there are Clinton Judges, Obama Judges, and Bush Judges, but Roberts responding that there are no such descriptions, as all are dedicated to the rule of law, a true rebuke of the President.

On a recent executive order to deny asylum automatically to those who seek it, the Court ruled 5-4 against it, with Roberts joining the four Democratic appointments on the Court, and he has earlier upheld ObamaCare in 2012, and at other times, has sided against conservatives.

It is clear that Roberts sees the Supreme Court as “his Court”, and is concerned about the reputation of the Court long term, so one can be assured that if a case comes up against Trump trying to grab too much power, that he will, likely vote against him, as the entire Court, including three Nixon appointees, voted against him in US V. Nixon of 1974, and when the Court, including two Clinton appointees unanimously voted against Clinton in the Clinton V. Jones Case of 1997.

Presidents In Conflict With The Judiciary Are Nothing New Historically, But Trump Could Be The Biggest Threat Yet To Our Constitutional System

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The conflict of President Donald Trump with the judiciary is not the first time there has been a challenge from a President to the judicial branch.

Thomas Jefferson and Andrew Jackson had regular conflict with Chief Justice John Marshall and the federal courts in the first third of the 19th century.

Abraham Lincoln had vehement disagreements with Chief Justice Roger Taney in the era of the Civil War.

Theodore Roosevelt and Woodrow Wilson both found the Supreme Court as standing in the way of progressive reform in the early 20th century.

Franklin D. Roosevelt was so frustrated by a conservative Supreme Court negating important legislation of the New Deal in the mid 1930s, that he proposed the idea of adding six new Justices to the Court in 1937. This came to be known as the “Court Packing” plan, and was soundly defeated, including by members of his own Democratic Party.

Richard Nixon had issues with the rulings of the Earl Warren Court before he was President, and the continued Warren influence on the Court under his successor, Warren Burger. And, Nixon was stopped dead in his tracks in US. V. Nixon in 1974, forcing him to hand over the Watergate Tapes to the Special Prosecutor, Leon Jaworski, leading him to resign the Presidency in August 1974.

Barack Obama was critical of the John Roberts Court on its conservative decisions early on in his Presidency in 2010.

And now, Donald Trump has unleashed what many consider the strongest challenge to the whole federal judiciary, alarming many constitutional experts as far more dangerous and threatening to the checks and balances of the Constitution and the separation of powers.

It is clear that Trump has declared war on the judiciary, but it could be that the Roberts Court will smack back at him when cases regarding his abuse of power make it to the Court, so Trump may be “hoist by hid own petard”, and regret the attacks he has made on the whole court system.