The First Monday in October

On Monday, the Roberts Court opens for the fifteenth year of its term. As described by the National Constitutional Center, Congress set the opening date in 1916 to always start on the first Monday in October, beginning in 1917. This was part of several judicial reforms instituted that year. Now, more than a century later, the Court is again being carefully scrutinized. After machinations by former Majority leader McConnell, the last administration had the chance to submit three nominations for the court. The Federalist Society recommended each of the judges and not the American Bar Association, which had been the body of reference in previous decades. After falsely claiming that President Obama could not nominate a justice in his final year, McConnell moved rapidly to ensure that Justice Barrett was confirmed a few days before the 2020 election. This, along with decisions that appear to be partisan (such as the decision to not review the Texas abortion law), has turned public opinion away from the court. Recent polling by Quinnipiac reported in The Hill found only 37% of registered voters in Americans approve of the way the Court is doing its job. According to The Hill, that poll also noted:

“In a related finding, the Quinnipiac survey showed that nearly 7 in 10 agree with the Roe decision and that more Americans — by a 48 to 35 margin — say the Supreme Court should make it easier and not harder to get an abortion. “

Women marched in cities across this country on Saturday to speak up for the rights of women to have safe access to abortion and birth control; the Washington march ended at the Supreme Court to further emphasize this point. Of course, the decision by the Court to add the Mississippi abortion restriction law to the appeals heard in this session has made the stakes ever so much more pressing. That law would prohibit abortion after 15 weeks, which is much earlier than the 24 weeks set out in the decision of Roe vs. Wade in 1973. The legislature wrote this law to challenge Roe. If Roe is further limited, many states will look to amend their laws. Several Red states have already written ‘trigger’ laws so that if or when Roe is overturned, they will then implement restrictive laws that prohibit abortions.

Fortunately, for the women in Maryland, their access is not tied to the Courts’ decision as the state passed an enabling law recently which protects access regardless of decisions by the Court. A review discussed the issues in an article recently updated by the Washingtonian Magazine here. Already media reports show that women in Texas are going to all nearby states, and even Mexico, to obtain abortions as they need them. Other states are also providing abortion pills, soon to be denied in Texas, if the relevant legislation passes.

It takes many years for a ‘petition’ (which is what the appeal is called) to make its way to the Supreme Court. A series of State Courts review a case before it goes to the Federal Circuit Courts, and if is an issue that has not been decided before, or if it challenges established law, the Court may choose to hear it. If so, they ask the lower court for a writ of certiorari. But, to be able to afford to pursue an issue all the way through these many levels of judicial review, one must have a legal team. Unless a law firm has taken on a case that it feels has been misinterpreted or misused under its pro-bono caseload, a petitioner must have really deep pockets to pay a legal team for years. That is one of the reasons few individuals can afford to have their grievances heard and further distances many decisions from those which affect people in their day-to-day lives. There are thirteen Federal Circuit Courts that are divided into geographical areas across the United States. About 7000 cases are appealed each year, and the court chooses to hear fewer than 80 each year. Each justice has responsibility for certain Federal Courts, so the case of an emergency appeal in a death penalty, for example, with a last-minute petition, can be expedited through the assigned justice who is approachable 24 hours a day.

President Franklin Roosevelt tried to add more justices to the Court when several decisions did not go his way, but he was rebuffed for his efforts. Once again, there are discussions about adding more justices. The Constitution does not specify the number of required justices, nor does it address term limits or age restrictions, so the nine justices we now have could be increased–or possibly decreased, should that be thought necessary. Instead of finding learned scholars of the law to sit on the court, the Republicans have tried to choose younger, less seasoned conservative nominees who could serve for many decades.

Many progressives are urging Justice Breyer to retire as he is already 83 years old and they want the opportunity to have a Democratic President and Senate when there is another opening. Democrats feel that they have been burned by the Garland nomination and the death of Justice Ginsburg as mentioned above and are concerned that this could happen again, so I understand. While I would like to see President Biden have the chance to nominate a justice, I feel uneasy at trying to kick out Breyer. Justice Scalia died on the court at age 79; Chief Justice Rehnquist was 80, and Justice Ginsburg was 87 when they died while serving. Currently, Justices Thomas and Alito are 73 and 71 respectively, so age does not mean they should not continue to serve. Justices Roberts, Kagan, and Sotomayer are all in their 60s, but those ages are not determinative of longevity, either.

Should we add more justices to even out the lopsided 6-3 conservative/liberal slant?  In 2019 Politifacts reports that 38% of the decisions were 9-0 while 21% were 5-4, the rest were varied. That court still had Justice Ginsburg. So how many justices are necessary for balance? Should we go up to 15 as some have suggested? I am not ready to agree just yet. Perhaps the court, which is quite conscious of its image, might hear some of these criticisms and endeavor to rebalance itself. I only mention this because in recent days Justice Alito has spoken out against criticisms of the “so-called shadow docket” and other issues, making him the fourth justice to speak up in recent days. (Well, maybe Breyer should not count as he is selling his book!) However, the cases which they have decided to hear this year are more controversial than in most years; it Is said that Justice Thomas really wanted the gun rights issue to come before the court, so who knows? I do not think that this is the year when the court will be notable for the momentous decisions it makes–so far only it has scheduled only 39 cases.

Like most Americans, I want to trust in our three branches of government. I want to believe that my president will follow the Rule of Law and our Constitution; our last president did not, the current one is doing so. I would like to believe that our representative democracy elects people to the Congress who have their best interests at heart. Recent years have not shown that. This current Congress seems to be trying; I hope they can get over their differences and work for the people because that is what they were sent there to do. (Right now, I do not even want to think about the arrogance of Senators Manchin and Sinema who seem to relish their time in the spotlight more than doing the hard work of coming to a consensus on what the country needs.)

This, then, brings me to the third branch of government–the Supreme Court. I have always had great respect for the Court, even as I disagreed with some of its decisions. They are supposed to be the last, best decision on points of law and justice. That is why you see the statue of Lady Justice outside the court wearing a blindfold and carrying a sword and scales. I can only hope that they will live up to their oath, not the tenets of the Federalist Society, which sent many of them there. Recent reports are that “Dark Money” from the Koch brothers, the Mercers, the DeVos family, shipping billionaire Uihlein, and other secretive foundations help fund the Federalist Society, which wants little government and a strict interpretation of the Constitution. The decision in the Citizens United case certainly was written for this crowd. (Our Constitution, which was written before electricity and space flights or before we granted women rights to vote and own property, or before we gave enslaved people full citizenship, just to mention a few issues of concern here.) For our democracy to live up to its promise, its citizens must be able to trust that it functions with “liberty and justice for all”, not just a few.

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There is some good news on the COVID vaccine front as Pfizer has applied for emergency use approval for a reduced dose to be given to 5-11-year-old children. It is expected to receive that approval by the end of this month if all goes well. Moderna and Johnson & Johnson have also applied for approval for a booster shot. Merck has announced a medication that can treat early cases of Covid and keep patients out of the hospital and is seeking FDA approval.

This week we passed 700,000 deaths. I remember when we were shocked when the death count reached 100,000 in May of last year. Alaska, Wyoming, and North Dakota lead the states for cases per 100,000 population. All of them are around 50% vaccinated.

Maryland has seen a slight dip in cases recently, although Friday’s totals were high - deaths continue to increase. There is a time lag in incidence relative to deaths. Maryland continues to be around 64% vaccinated with some counties remaining under 50%.

The National Zoo in Washington is reporting that several of the great cats (lions and tigers) living there have COVID. Some are not eating, presumably, because they have lost taste and smell. The transmission was probably from an asymptomatic human.

COVID STATs NY Times:

US Totals: Total Cases: 43,654,161. New Cases: 106,941.

                    Total Deaths: 701,326. New Deaths: 1878.

Maryland Totals: Total Cases: 533,870. New Cases: 1530. (as of 10/1/21)

                        Total Deaths: 10,460. New Deaths: 18.

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As I write, Democrats have not yet come to a consensus for the passage of the Build Back Better Bill and the Transportation infrastructure bill. I remain hopeful that this can get done sooner rather than later and that then Congress can address the Voting Rights issues as soon as possible before more states finalize partisan redistricting. The bipartisan police reform bill has failed after months of negotiations. Republicans continue to deny that the debt ceiling can be raised so the government might be in default soon. How absurd is this? Senator Cruz is holding up appointments for ambassadors for President Biden, just because he can. Welcome to the circus folks!

“Til next week, Peace.