Dear John,

I’ve been thinking about the Supreme Court after its decision that Biden’s moratorium on evictions was illegal, along with its recent refusal to stay a lower court decision that people seeking asylum at the southern border must remain in Mexico until their cases are heard -- often subjecting them to great hardship or violence.

In both cases, the six Republican appointees carried the day over objections of the three Democratic appointees.

What links the two cases? Cruelty toward the powerless.

I remember a very different Supreme Court which I had the honor of arguing cases before almost fifty years ago. It was a time when William O. Douglas and Thurgood Marshall were still on it. The two embodied the idea that the fundamental role of the Supreme Court was to balance the scales in favor of those who were powerless. The other two branches couldn’t be relied on to do that.

I don’t remember the cases I argued. They were insignificant. I was a rookie in the Justice Department who was given either sure winners or sure losers to argue. But I do recall Douglas, who had recently suffered a stroke and was in obvious discomfort, looking sharply at me as I made my arguments.

I was awed. Here was the justice who wrote the 1965 decision in Griswold v. Connecticut, finding that a constitutional right to privacy forbids states from banning contraception. The man who argued the Vietnam war was illegal and issued an order that temporarily blocked sending Army reservists to Vietnam. The justice who wrote in the 1972 case Sierra Club v. Morton that any part of nature feeling the destructive pressure of modern technology should have standing to sue in court – including rivers, lakes, trees and even the air – because if corporations (which are legal fictions) have standing, shouldn’t the natural world?

Sitting not far away from him was Thurgood Marshall – who succeeded in having the Supreme Court declare segregated public schools unconstitutional in the landmark 1954 case Brown v. Board of Education, and who did more than person then alive to break down the shameful legal edifice of Jim Crow.

Other members of the Court at the time included Potter Stewart, William O. Brennan, and Byron White – none as inspiring to me but all of whom cared deeply about the role of the judiciary in maintaining a fair balance of power. The five of them formed a majority.

Today’s Supreme Court majority is a group of knee-jerk conservatives whose intellectual leader (to the extent they have one) is Samuel Alito, perhaps the most conceptually rigid and cognitively dishonest justice since Roger Taney.

Alito has favored abortion bans and gender discrimination. He has come out against the Affordable Care Act, the rights of same-sex couples, and public-health COVID restrictions. He clings to the bizarre idea that the current meaning of the Constitution should depend on the thinking of a small group of white slave-holding oligarchs in 1788.

Some people believe Clarence Thomas is the most dangerous justice on today’s court. I think they’re wrong. Alito combines Thomas’s brainless conservativism with a knack for argument.

It bears pointing out that five of today’s Supreme Court majority were appointed by presidents who lost the popular vote; three of them by a president who instigated a coup against the United States.

The authority of the Supreme Court at any given time derives entirely from the respect in which it’s held – Americans’ confidence and trust in it. As Alexander Hamilton wrote in The Federalist Papers 78, the judiciary has “neither the sword” (the power of the executive branch to compel action) “or the purse” (the power of Congress to appropriate funds).

The Court I was privileged to argue before almost fifty years ago had significant authority because it protected the less powerful. Americans didn’t always agree with its conclusions, but they respected it. Today’s cruel and partisan Supreme Court is squandering what remains of its authority.

What do you think?

Thanks for reading,

Robert Reich

Inequality Media Civic Action