Crisis in Faith [Lawrence O'Donnell]

If you have the resources to listen to the Lawrence O'Donnell, MSNBC broadcast of Wednesday, July 6, 2023. I highly recommend it. It was titled A Crisis in Faith. In his presentation, he likened his faith in the Supreme Court to his religious faith. His father was a lawyer and he watched, as an 11-year-old, his father argue and win a case in the Supreme Court. He points out that, this SCOTUS is not of the same caliber or morality of the courts of his experience.

I transcribed the first 20 minutes of this broadcast that included an interview with Jamelle Antoine Bouie, a columnist for the NY Times. Mr. Bouie's comments are paragraphed with a [JB] header. All other content is from Lawrence O'Donnell.

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A Crisis in Faith

Lawrence O’Donnell, MSNBC, Wednesday, 7/5/23

[note, the following was done using voice recognition and some errors in transcription may be present]

It was in a classroom at a Catholic High School in Boston, where I first heard the phrase, crisis of faith. It was during religion class that the priest told us about a crisis of faith that he had some years earlier. For priests, the crisis of faith is losing the belief in God. It is so common for priests to have a crisis of faith. They have a term for it. And they have a process to deal with. Priests leave their priestly duties temporarily until the crisis of faith passes, or permanently if it doesn't. Experiencing a crisis of faith for the last year or so or so and have. Not knowing quite what to say about it or who to talk to about it. There are priests who specialize in counseling Catholic priests who are experiencing a crisis of faith.

But I'm not sure who to turn to for my crisis of faith. It is a crisis of faith. In what has been a God-like presence in my life? When I was baptized into the Catholic faith at birth, my father was a Boston police officer by the time I was in high school learning. About a Catholic priest having a crisis of faith. My father was a lawyer who had already argued and won the case in the United States Supreme Court. I was there in the Supreme Court that day when my father made his case to the justices. I was 11 years old. I had been in many churches and cathedrals by the time I was 11 and had seen monsignors of Cardinals on the altar but had never experienced more majesty in our world than sitting there, looking up at the Warren Court.

There was the Republican-appointed Chief Justice for Warren, flanked by legends on both sides of him, including the most liberal member of the court, William O Douglas, appointed by President Franklin Delano Roosevelt. This was the court. But ordered the desegregation of public schools in America in 1954. This was the court that found state laws banning interracial marriage to be unconstitutional. Earl Warren had been the Chief Justice of the United States every day of my life.

Thurgood Marshall would join the Warren Court in its last years and personally represent as the first African American member of the Supreme Court the steady march of social progress that the Warren Court guided this country through using, we then thought, something as sacred as the 10 Commandments, the Constitution of the United States. We did not think that Chief Justice Warren and Justice Douglas and Justice Brennan and Justice Marshall and other legends of the Warren Court were delivering this progress, we thought the Constitution was delivering that process. We thought that the Warren Court was employing the most refined level of legal scholarship possible to reach its constitutional pronouncements, and no other result was possible.

My father lived in awe of the Supreme Court, and so did his children. It was a religious-like law. We never talked about who appointed the justices after they were appointed because it didn't seem particularly relevant. We thought Richard Nixon was a truly terrible, indeed criminal president. But his appointments to the Supreme Court were not bad. The court survived the Nixon years without any questions about its legitimacy, the Court, led by a Chief Justice appointed by Richard Nixon in a unanimous opinion, ordered Richard Nixon to hand over audio tapes that destroyed the Nixon presidency and forced Richard Nixon to resign the presidency.

In 1973, the Republican-dominated Supreme Court delivered the opinion on Roe versus Wade that allowed every pregnant woman in America to decide whether to carry that pregnancy. And so my faith in the Supreme Court remains strong no matter who was president.

Then came Senator Mitch McConnell and Donald Trump, who delegitimized the Supreme Court in a way that had been unthinkable until 2016, when Mitch McConnell refused to allow even a confirmation hearing for President Obama's last appointee to the Supreme Court, Merrick Garland. By forcing that Supreme Court seat to remain open for a year, Donald Trump was able to name Neil Gorsuch to the Supreme Court. And so, whenever you see the name Gorsuch on a Supreme Court opinion, you should be seeing the name Garland. The word Gorsuch is an illegitimate presence in the Supreme Court's opinions. And takes its place in those opinions only through the corruption of the Supreme Court confirmation process brought by Republican Senator Mitch McConnell and completed by the most corrupt president in history, Donald Trump.

Neil Gorsuch does not evidence a whiff of embarrassment about his illegitimate placement on the Supreme Court. The, pardon the expression, affirmative action it took by Mitch McConnell and Donald Trump to get him on the Supreme Court. This last year is the year in which the United States Supreme Court has entered the most publicly corrupt phase of its entire history.

It is entirely possible that 200 years ago there were forms of corruption involving Supreme Court justices that never became public and historians never found. That's possible. But based exclusively on the public record, it is undeniable that the current court, this Republican-dominated Roberts court, is the most corrupt in history. And they are corrupt on two fronts. One, extreme financial improprieties and obvious financial conflicts of interest with billionaire litigants whose cases appear before the Supreme Court.

But the much graver corruption in the Supreme Court, the corruption that affects the daily lives of all of us is the corruption of Supreme Court scholarship. Is legal scholarship, scholarship if you can just make up stuff? That is the question. I've been privately asking myself for over a year now. And that is the essence of my crisis of faith. Where I once faithfully believed that the Warren Court followed by the Burger Court were using the most refined techniques of legal scholarship to deliver to us the true meaning of the Constitution, I now believe the Republican justices on the Supreme Court are just making it up. And they are doing that in a way that scholars cannot possibly do in other areas of scholarship, like mathematics or chemistry or biology. And so we have a Supreme Court whose final decision of the year was based on a person who was made-up. A person who does not exist.

The Republicans on the Supreme Court decided, as Justice Sonia Sotomayor says in her dissent, that quote, “a particular kind of business, though open to the public, has a constitutional right to refuse to serve members of a protected class. The Court does so for the first time in its history by issuing this new license to discriminate in a case brought by a company that seeks to deny same-sex couples before the equal enjoyment of its services, the immediate symbolic effect of the decision is to mark gays and lesbians for second class status. In this way, the decision itself inflicts a kind of stigmatic harm on top of any harm caused by denials of service. The opinion of the court is quite finally a notice that reads Some services may be denied to same-sex couples.”

It was just the day before, the Supreme Court issued that opinion, thanks to Melissa Grant reporting in The New Republic, that the same-sex couple named in the lawsuit that reached the United States Supreme Court was proven not to exist. That same-sex couple did not even exist. The lawsuit falsely claimed that a same-sex couple named Stuart and Mike wanted to have a website made for their upcoming wedding. The lawsuit included a phone number for the couple, which Melissa Grant called to discover that Stewart has been married to a woman for many years and has a daughter and had no idea that his first name and phone number appeared in a case before the United States Supreme Court and was used to deny other people their rights. But because the opinion had already been sent to the printer, there was nothing that the Roberts Court was going to do about the fraud perpetrated on the Supreme Court.

And if the court is just making stuff up? They obviously don't care about details like the people who are activating the case in front of them actually existing. That same Supreme Court ruled against what it incorrectly believes is Harvard College’s admissions policy. Republicans on the Supreme Court showed an unrelenting ignorance about the 387-year history of Harvard admissions policy by insisting that Harvard must stop the practice of admitting any student solely because of the color of the student's skin. Harvard has never admitted anyone solely for that reason, and so the Republican-controlled Supreme Court was making a ruling based on a myth that will have next to no effect on Harvard's actual admissions policy.

Many wise observers of the court have been publicly sharing in my crisis of faith without using that phrase. Norm Ornstein was for most of the decades of his exemplary professional work in Washington as a congressional scholar known and trusted for a complete absence of partisanship in his scholarship. The Trump years have left Norm Ornstein standing very clearly on one side of our partisan divide, but still, as always, speaking the truth about Washington institutions, including the Supreme Court. Norm Ornstein says quote, “it is not just rulings the Roberts Court is making they created out of whole cloth of bogus major questions doctrine. They made a mockery of standing. They rewrite laws to fit their radical ideological preferences that have unilaterally blown up the legitimacy of the court.”

When the Roberts court ruled last week on President Biden's student debt relief plan, Chief Justice John Roberts leaned on something he called the major questions doctrine, which, as Supreme Court reporter Ludwick points out is not really a doctrine at all. That opinion written by Chief Justice Roberts provoked the dissent by Justice Elena Kagan, which seems to reveal a crisis of faith much more severe than mine.

An actual member of the Supreme Court now seems to have lost faith in the Supreme Court. In her dissent to the Chief Justice 's opinion on student loan relief. Justice Kagan wrote, “from the first page to the last, today's opinion departs from the demands of judicial restraint. At the behest of a party that has suffered no injury, the majority decides a contested public policy issue properly belonging to the politically accountable branches and the people they represent. That is a major problem not just for governance, but for democracy too. Congress is, of course, a democratic institution. It responds, even if imperfectly, to the preferences of American voters. And agency officials though not themselves elected, serve a president with the broadest of all political constituencies but this court, it is, by design, as detached as possible from the body politic. That is why the court is supposed to stick to its business, to decide only cases and controversies, and to stay away from making this nation's policy about subjects like. Student one release and that means the court, on deciding this case, exercises authority it does not have. It violates the Constitution.”

Justice Kagan is 63 years old. She will, if the country is lucky, serve another 10 to 20 years on the Supreme Court. She will do so knowing she is not serving on the Supreme Court she grew up admiring, on the Supreme Court she no doubt dreamed of serving on when she was a law student. She is serving on the Supreme Court that she believes Violates the Constitution. That is as grave a crisis of faith as has ever been publicly voiced by a Supreme Court Justice.

Leading off our discussion about this is Jamelle Bouie (JB). He is a columnist for the New York Times and co-host of the podcast Unclear and Present Danger. Jamelle, thank you very much for joining us tonight. I have been wondering with whom I can share my crisis of faith here and you are my number one choice for this because I know you share many of the things that have led me to it. And it was you who first pointed out to me that my faith in a Supreme Court was literally in the one that existed during my lifetime. And that has actually turned out to be a relatively brief, let's call it 50 or so year kind of highpoint of the court as a facilitator of progress in the way we live, and in fact, it's not really the full history of the court at all.

JB: That's right, that the period of the court that I think a lot of people off familiar with and have affection for is the Warren Court. And the Warren Court didn't last for all that long 15 years, 16, 17 years, in a relatively short period in the history of the court. You can go back and get a little earlier to the Vinson court and look at some rulings there that lead up to key Warren court rulings like the Brown v. Board.

JB: By and large about 1/4 century tops of time that you can consider maybe even the high point of the Supreme Court when people understand that this defender of the rights of Americans this partner in trying to expand the rights of Americans to treacherous train to the worst parts at the time of our Constitutional status quo of things happening in our society.

JB: If you look back before that. Right into this earlier in the 20th century, it's early in the 19th century. What you see is a court that is consistently, consistently, consistently on the side of big business of corporations. Of uh, you know what I call local bullies, right? Segregationist people who are operating to try to restrain the freedoms of Americans. That court is either indifferent to that or actively abetting it. And that goes back into the 19th century. And so when you're looking at the court. In the present, in the last 25 or 30 years, I think what we're seeing is a court, especially right now, that is hearkening back to what the court has generally been, which is on the side of received power, of received influence, and of wealth.

So we have Senator Chris Murphy saying this Supreme Court six right-wing politicians masquerading as judges, gleefully imposing their politics on the country by fiat and unremorsefully living lives of leisure subsidized by billionaires with interest before the court an outrageous scam. And that's not something Chris Murphy was thinking 10 years ago, five years ago. This is a whole new level and I have to say on the corruption of the scholarship.

When the Alito opinion leaked overturning Roe versus Wade, I found in there two citations from 2 English lawyers and judges. From the Dark Ages, who were prosecutors of witches and who strongly advocated the death penalty for witches in England, which they helped effectuate and helped get witches put to death. And when I highlighted those pieces of the leaked opinion, I actually thought, well, that'll be deleted in the final opinion. Alito’s not gonna put out, and his clerks, they're not gonna put out the final opinion quoting the witch lawyers of England in their opinions about anything. They will be embarrassed by just the ridiculousness of that scholarship. But no, it's in there, both of those old English witch lawyers are in Alito's opinion overturning Roe v. Wade.

JB: We've seen this, I mean you mentioned that as well. We've seen this in this term, in the previous term, the court using reasoning, using scholarship that just doesn't hold muster. They're very clearly and simply working backward from a conclusion. That conclusion being what the conservatives on the court wanted to do. And I think it's time to recognize that that's sort of where we're going to be. That we're not necessarily going to see the strongest reasoning from this majority.

JB: We're not going to see rulings that are necessarily consistent with even that court's own reasoning in prior cases. We're going to see effectively a kind of will to power. I think it's gonna require opponents of this court to try to affect something similar in the places where they had confined influence as well.