The Supreme Court: Two scenarios

As of this writing, it's a good bet that the election mess will end up in the Supreme Court for resolution.  If so, one of two scenarios is likely to unfold.  One is the that the five conservative justices will have the backbone to stand firm for the rule of law.  These justices are Clarence Thomas, Amy Coney Barrett, Samuel Alito, Brett Kavanaugh, and Neil Gorsuch.  Chief Justice John Roberts, who is a proven equivocator, could vote either way, but he would not affect the final decision.

The other less desirable scenario is that at least one of the five conservative justices gets weak and surrenders to the pressure of the moment.  That pressure can be called "practicality."  Forming the practicality mindset would be the riots, looting, and violence that occurred this summer and are ongoing to some extent.  And indeed, many leftist groups are promising turmoil if Donald Trump wins a second term.  Plus the media will make it clear that they intend to mau-mau justices who deviate from the liberal script.

In such an environment, a weak justice might reason like this: "If I vote to uphold the election laws, the Biden forces will go on a rampage.  On the other hand, if the decision goes against Trump, his supporters will huff and puff, but despite media propaganda, I know they are not as violence-prone as their opposition.  So I'll be practical.  I'll twist my reading of the law to make it serve the cause of social peace."  And should one conservative justice weaken, Roberts will be sure to follow like a puppy looking for a petting.

I was being overly generous when I called this "practicality."  Actually, it is bowing to intimidation.  And there is precedent when conservatives — real conservatives, not Roberts-like ones — capitulated to intimidation.  The classic instance goes back to the 1930s.  The year 1934 saw numerous violent labor strikes.  Labor peace was the pretext for passing the Wagner Act or National Labor Relations Act. (NLRA), which trampled on common law and the right of free speech of workers and companies. 

In 1935, the Supreme Court declared FDR's National Industrial Recovery Act unconstitutional in Schechter Poultry Corp. v. United States.  In the following year, the court found another piece of New Deal regulatory legislation unconstitutional in Carter v. Carter Coal Co.  It was the stinging rebuke in these two court cases that prompted President Roosevelt to announce that he wanted to pack the Supreme Court.  He proposed expanding it from nine justices to fourteen.  A bill to give the president the authority to do this died in Congress.

But as George C. Leef wrote in his Free Choice for Workers (2005), the court-packing plan succeeded in a different way.  The first case testing the constitutionality of the Wagner Act reached the Supreme court in 1936 — NLRB v. Jones & Laughlin Steel Corp.  When the decision was announced in 1937, two members of the Court who in the Schechter and Carter cases had found that the legislation had gone beyond the authority of Congress switched sides. 

As a result, in a 5-4 decision, the Court found the Wagner Act constitutional.  This was a case of the court not following the Constitution but instead seeking industrial peace.  Two justices — Chief Justice Charles Evans Hughes and Owen Roberts — were also clearly intimidated by Roosevelt's court-packing proposal.

It would be a sad irony if one of the justices whom President Trump appointed and fought for turned and voted with the mob.  But as history shows, such a thing is possible.

Image: Angela N.

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