We like to think of the United States as a nation governed by three co-equal branches of government. Present circumstances notwithstanding, that’s a widely held belief taught in schools and presented as the foundation of America’s stability over time.
But that value-neutral balance of power is not necessarily reflective of the court’s past or present reality, as progressive talk show host Thom Hartmann explains in his new book, The Hidden History of the Supreme Court and the Betrayal of America (Berrett-Koehler Publishers, 2019).
The key concept behind the slim book is that the judiciary was conceived as the weakest of the three branches of government, with a narrow purview determined by Congress, but that starting with the early landmark decision in Marbury v. Madison, which ensconced the concept of judicial review of laws passed by Congress, the Supreme Court has embarked on a 200-plus-year endeavor to claim more power for itself at the expense of the legislative and executive branches.
YES! Magazine Senior Editor Chris Winters talked with Hartmann about the origins of the high court, how its power evolved, and what the future might look like. This interview has been edited for clarity and condensed.
Chris Winters: The early idea that gets mentioned in the book is that the original intent of the framers of the Constitution was that the judiciary would be the weakest of the three branches of government, but since then it’s taken much more power for itself through its own actions, without receiving much assistance from the other two branches. Would that be an accurate representation of how you view the early days of the court?
Thom Hartmann: Yes. The 1803 Marbury decision flipped out [Thomas] Jefferson and a lot of the other people who call themselves anti-Federalists, and who had become the Democratic Republicans. And it even flipped out a lot of the Federalists, it was just like this naked power grab, and so much so that, while there were a few decisions that invoked judicial review over the following 50 years, they were largely inconsequential and not controversial. The first big one was Marbury and the second was Dred Scott. And then, as Reconstruction was collapsing in the 1870s and 1880s …, the [reporter] of the court, John Chandler Bancroft Davis, added a footnote to the Santa Clara County v. Southern Pacific Railroad case that became the endowment of personhood to corporations, and it’s kind of stood since then.
That era, that generation was the beginning of really aggressive judicial review by the Supreme Court.
Winters: In retrospect, Santa Clara County was really the start of “corporations are people, my friend…”?
Hartmann: The way that we understand corporate personhood today, that a corporation has access to Fourth Amendment right to privacy, First Amendment right to free speech, Fifth Amendment right to avoid self-incrimination, Fourteenth Amendment right to equal protection under the law, all those basically flowed out of Santa Clara County, even though, in the Santa Clara County decision itself, the court ruled that a corporation is not a person, which most people don’t realize. …
The headnote is what it’s called. It’s the summary of the case for lawyers, it has no legal power, it does not establish precedent, but the court behaved like it was precedent, and has continued to behave that way to this day. In fact, they cite it and its subsequent rulings in Citizens United. Pretty amazing.
Winters: Skipping ahead a little, toward the end of the book you talk about remedies—how do you control an out-of-control court?—and that the traditional way, amending the Constitution, is near impossible in a hyperpartisan environment, which leaves what you’re calling jurisdictional stripping or court-stripping, where Congress limits the courts’ scope of review, as the way to go. I can see how this might work on a case-by-case basis, but if we want to go back to Marbury or Santa Clara County, could this work, or is this pie-in-the-sky dreaming?
Hartmann: Well, I titled that chapter, if I recall, “In Case of Emergency, Break Glass,” and it summarizes all the work that [now-Chief Justice] John Roberts did when he worked for Ronald Reagan. The Reagan administration was explicitly looking for ways to overturn Roe v. Wade and overturn Brown v. Board of Education without involving the court. How do you do this against the will of the court, and without amending the Constitution?
And John Roberts came up with basically what Jefferson came up with, which is that the Constitution explicitly gives Congress the power to regulate the court and decide what the court may or may not decide, what issues the court may or may not rule on. And it’s right there in Article 3, Section 2. And that’s what’s referred as court-stripping or jurisdiction stripping. And so, Roberts wrote this long memo to the Reagan administration, saying if we really want to go nuclear, this is how we do it.
Winters: Throughout the book, we follow how the court has evolved over 230 years since the ratification of the Constitution. If we were to break down that time period, from post-Marbury to pre-Civil War-era courts, the post-Civil War courts up until the early part of the 20th century, the New Deal—
Hartmann: Really, 1937 was the turning point when FDR challenged the court.
Winters: —and from ’37 up to the early 1970s—Roe v. Wade probably would be the turning point there—and then the modern day, you see this vacillation going on, between more or fewer civil rights for human beings as opposed to corporations, or more or less kowtowing to privilege. Is what we’re facing now more of a constitutional crisis, rather than just a string of bad court decisions in recent years? The court has reversed itself in the past, right?
Hartmann: I think we are in a constitutional crisis. I think that if Congress were to aggressively start using court-stripping, it would provoke a huge constitutional crisis, which is why nobody’s been willing to do it up to this point. And Roberts didn’t even recommend it to Reagan. He just said, “Here’s your nuclear option.” And the reason why we have this constitutional crisis is that the court has been operating [this way] and increasingly the jig is up.
[U.S. Sen.] Sheldon Whitehouse wrote for The Washington Post, the title of it was, “The Supreme Court has become just another arm of the GOP.” Whitehouse is behaving as if this is a brand-new thing. It’s not a brand-new thing. The court was dancing to wealth and power even in the 1800s, Santa Clara County being a case in point, at least the way it was used. But it became a partisan entity really in the 1930s, under Franklin Roosevelt, in explicit opposition to Roosevelt. And he basically cowed the court, and it became, from the Republicans’ point of view, a partisan instrument of the Democrats. And that continued with the Warren Court during Eisenhower’s era, largely right up until Reagan. And the Republicans, as I documented in the book, worked their ass off to turn the court back into a Republican-leaning entity, as it was from the era from roughly 1900 to 1937.
So the politicization of the court has a long genesis, and I think that’s a genie that’s never going to go back in the bottle, frankly.
Winters: Do you feel that, regardless of whether or not it’s a good idea, we’re going to get to that point of breaking the glass, and moving toward jurisdiction stripping?
Hartmann: I honestly don’t know. A lot’s going to depend on the next couple of years and how radical [Justices] Gorsuch and Kavanaugh are willing to be, and whether Trump has an opportunity to put another justice on the court. If we get a 6-3 conservative majority, I suspect that, particularly given the conservatives who are on the court, where a guy like John Roberts, who’s a Reagan conservative, is considered a moderate, then I think all bets are off. The political pressure to respond to the court is going to be as intense as it was in 1937.
The nature of that response I can’t predict. It might be like [what] FDR did. If there’s a Democratic president and there [are] six conservatives on the court, or even five, a Democratic president might threaten to expand the court as has been discussed by the presidential candidates, basically to pack the court. Or Congress may get together and do court-stripping. I see a train wreck coming.
Winters: No matter who would wind up winning in 2020?
Hartmann: Oh yeah. The White House goes back and forth, Congress goes back and forth, the Republicans would—and this is the book coming out in the spring, The Hidden History of the War on Voting—the Republicans, with gerrymandering and voter suppression, thought that they could create a multigenerational Republican majority like the Democrats had from the ’30s to the ’80s, and I don’t think they succeeded. And I think over the long term they’re going to fail pretty badly, and who knows how they’re going to respond to that.
“The politicization of the court has a long genesis, and I think that’s a genie that’s never going to go back in the bottle.”
Winters: One other element of the modern era which I think is unique, is what Sen. Mitch McConnell has done, obviously with preventing President Obama’s Supreme Court nominee from getting a hearing, but in other ways too, in the way he’s behaved at the Supreme and lower court levels, ramming through hundreds of lifetime appointments to extreme conservatives. Is there an analog for McConnell somewhere else in our history, someone who did something that we would consider anti-constitutional?
Hartmann: If we’re going to operate under the frame that the highest law of the land is the Constitution, then I think you could fairly easily build an argument that what McConnell did was illegal, because it went against the law which is the Constitution, which explicitly says, when a vacancy comes up on the Supreme Court, the president gets to appoint the replacement. Now that said, in our modern era of judicial review, that would require a review by the Supreme Court. Ha! So, it’s never been adjudicated, which is how McConnell was able to get away with it. There’s no precedent, there’s no, “Oh, you can’t do that, sir.” But I think that any reasonable person would look at what he did and say it was certainly extra-legal, outside the bounds of the legal system, and I would argue that it was nakedly illegal.
Winters: When we look at how the Supreme Court stripped power from organized labor, starting with Steele v. Louisville & Nashville Railway Co., it seems that there was a kind of abdication by the Supreme Court stepping back and saying, “We’re just going to let Congress do it because they’re going in this direction anyway, and we won’t weigh in unless something comes up.” It wasn’t until a bit later that we started seeing things like the National Labor Relations Board trying to take a more active role under certain presidents for workers’ rights, and to try and win cases where they haven’t before. It seems to be pretty much a single trajectory versus union power that the court has had ever since 1944.
Hartmann: Yeah, I think it was Hugo Black [who said] that since Reconstruction, the court had invoked the 14th Amendment a lot of times in defense of corporations, but only very few times in defense of people of color, which is who the 14th Amendment was written for.
The Warren Court was kind of ambivalent to labor; those decisions made in the 1950s and even the ’60s were not as aggressively anti-union as the decisions that have been made since, and particularly since the Reagan era.
Winters: If we were to look over the broad scope of things, the Articles of Confederation lasted less than a decade, and the Constitution has lasted 230 years, and survived the Civil War, even. … Surely we did something right, even in the interest of stability? We’re not having to jettison our form of government every 50 years like a lot of other nations have done.
Hartmann: Although we’ve recalibrated it in very significant ways. Which is sort of the story of the book. From Marbury all the way forward, and the Supreme Court has been at the lead of these turning points, deciding when government can act on behalf of the people, and when government acts on behalf of essentially capital. And we’ve gone back and forth a few times, but the vast majority of the lifespan of the court has been deciding on behalf of capital. But there have been periods of time when the court ruled on the side of people as well.
Winters: Ultimately it is that capital-versus-people conflict that is the heart of the story.
Hartmann: It is. That’s what it all boils down to, even the Civil War. In fact, especially the Civil War.