There’s no limit to Republican lying.
That’s the lesson from a pair of Supreme Court rulings last week.
In the first, the 5-4 ruling overturning Roe v. Wade, it became evident that all three of Trump’s nominees to the court lied to win confirmation. They told key senators that Roe v. Wade was “settled precedent,” then turned around and trashed it. This was a fraud on the Senate, and particularly on Sens. Murkowski and Collins, who might not have voted to confirm them otherwise.
Then, in the Bremerton praying football coach case, opinion author Neil Gorsuch — one of the three liars — lied again by changing the facts to justify his decision. He falsely wrote the coach “offered his prayers quietly while his students were otherwise occupied.” (See Vox story here and photo below.)
Vox notes, “Because Gorsuch misrepresents the facts of this case, it’s hard to assess many of its implications.” Well, here’s what I think. Because the decision in Coach Kennedy’s favor is based on praying “quietly” without involving his students, if he does what he did again, the school district could and should fire him again, and that wouldn’t run afoul of the ruling in his favor. When a Supreme Court ruling is based on fictional facts, it applies only to facts matching the fiction.
And when Clarence Thomas dissented from an order declining to take a New York health worker vaccine mandate case, he falsely wrote that “all available COVID–19 vaccines … were developed using cell lines derived from aborted children,” a debunked anti-vaxxer claim (see story here).
But I digress. This posting is about Republican lying having no boundaries. If you use this blog’s search function to look up “Why do Republicans lie so much?” you’ll find no less than five postings under that title. I keep using that title because they keep lying. A cynical joke circulating in liberal circles goes like this: “How do you tell when a Republican is lying?” Answer: “When his lips are moving.” Because it’s true.
Do you need examples? They’re countless. The biggest one, of course, is Trump’s “Big Lie” about nonexistent election fraud and baseless claims of a “stolen election,” whose wellspring is Trump’s super-fragile ego that can’t cope with losing. Other big lies include climate denial and the libel that gay men are pedophiles. But Republicans don’t just tell whoppers. They lie about everything. Years ago, conservative columnist George Will said of Richard Nixon: “He tells lies so petty and demeaning you wonder why he stoops to it.” Now, the entire party does that.
The Supreme Court, even when staffed with Republican justices, should be a sanctuary from the GOP’s compulsive and prolific lying. Sadly, we’re learning it’s not. These people just can’t help themselves; they don’t have an honest bone in their bodies.
What does this mean for the Court? The prospects are unsettling. Rule of law, which is so much better in so many ways than rule by force, depends on people accepting the decisions of courts because they believe the system is fair. Now comes Vox with an article whose headline asks, “What happens when the public loses faith in the Supreme Court?” (Read it here.)
An obvious potential casualty is rule of law; but what replaces it? Arbitrary governing, at the very least. We have a historical example: When the Supreme Court, led by Chief Justice Marshall, author of the judicial review doctrine, ruled in Worcester v. Georgia (1832) that the government couldn’t seize Cherokee land, President Jackson did it anyway and dared the court to do anything about it. The Cherokee ethnic cleansing went ahead.
“The Worcester case illustrates something vital about the Supreme Court: It only has power inasmuch as people believe it does,” Vox says. “Constitutionally speaking, the Court does not have the hard authority of the presidency or Congress. It cannot deploy the military or cut off funding for a program. It can order others to take actions, but these orders only hold force if the other branches and state governments believe they have to follow them. The Court’s power depends on its legitimacy — on a widespread belief, among both citizens and politicians, that following its orders is the right and necessary thing to do.”
And if that legitimacy is impaired by consequential rulings the public believes are driven by partisan politics rather than law, and citizens refuse to abide by the court’s orders anymore, then the court’s power shrinks. That’s why previous generations of chief and associate justices generally avoided the kind of judicial recklessness the Trump appointees, along with the two veteran hard-core conservatives, Alito and Thomas, are displaying.
It wasn’t in their self-interest. When a conservative Supreme Court began blocking FDR’s New Deal legislation during the 1930s economic emergency, he threatened to pack the court, and that sufficed to bring them in line. For the justices who opposed his programs, it was either give up some power, or lose all of it. Today, angry Democrats are similarly exploring remedies to what they believe is an out-of-control court. The conservative justices are vulnerable because they’re not backed by public opinion.
Gorsuch, Kavanaugh, and Barrett deserve to be impeached for lying, but it takes senators from both parties to get the necessary votes to remove them, and there’s an acute lack of honorable GOP senators right now. So Democrats have to either term-limit them (this would aim to demote Alito and Thomas to lower courts), or add enough new justices to reclaim a majority, thereby consigning Gorsuch, Kavanaugh, and Barrett to the Judges’ Hell of irrelevancy.
But that’s presently out of reach, too, because of the filibuster. This obstacle need not be permanent, however. The filibuster rule can be changed by a simple majority of senators. The problem is Biden and two Democratic senators, Manchin and Sinema, oppose changing it. However, this need not be a permanent obstacle, either. The Democrats only need to flip a couple of GOP senate seats without losing any of theirs. Most pundits don’t see that happening in a midterm election expected to favor Republicans, but it might, because there’s more than one senate race in which Republicans may self-destruct (e.g. Missouri, where their likely nominee is a corrupt wife-beater who was forced to resign from the governorship; and Pennsylvania, where the GOP’s squirrely nominee badly trails in polls behind a popular Democratic nominee). Biden’s reluctance to go around, over, or through the filibuster is a bigger hurdle; but he might change his mind, or be replaced by another Democrat in 2024.
The filibuster is not, and shouldn’t be considered, sacrosanct. The 50 GOP senators were elected with millions fewer votes than the 50 Democratic senators, so they already have a minority advantage, and don’t need another one. The filibuster doesn’t have to be completely abolished; there’s already an exception for budget bills and judicial nominees, and all that’s required is to add more exceptions to cover critical legislation.
Packing the Supreme Court isn’t the highest priority; protecting voting rights and electoral votes is. But it should be on the table, to discourage the conservative justices from going even more rogue. The mere threat worked for FDR, and could work again.
The best solution to Republican lying, by far, is for Republicans to stop lying — but good luck with that! I think we have to aim lower, and simply demand that the Republicans on the Supreme Court lie less. Until then, a candid bailiff would open sessions by chanting:
“Oyez! Oyez! This dishonorable court is now in session!”
