Michael Waldman (1) (1960–)

Waldman’s audience seems to be the gallery of folks who admire him and know already everything he says. So why write the book? His explanation of cases is often perfunctory – look at what he says on Marbury. The Wikipedia entry is better.
He is only current up to December 2022 – but he speculates on 2023 cases which are now decided when one reads the book. He misses a big trick in ignoring the story and example of Justice David Souter. I guess this is because it is a lump in the flat carpet he tries to roll out. Another highly praised book that left me understanding less than when I started.… (plus d'informations)

This book is replete with interesting and important information about the history and functioning of the US Supreme Court. It all leads up to Waldman’s contention that “Over three days in June 2022, the Supreme Court changed America.” It did so by overturning Roe v. Wade, putting all privacy rights at risk; by radically loosening curbs on guns; and by hobbling the ability of government agencies to act to protect public health and safety and the environment.

The Court, Waldman points out, was able to do this because of a “supermajority” of six very conservative justices, all appointed by Republican presidents, and of whom five were picked by a president who took office after losing the popular vote (but winning in the Electoral College). Furthermore, he argues, as have others, that while John Roberts is nominally the Chief Justice, the Court is dominated by Clarence Thomas.

The author explains the concept of “originalism,” the judicial philosophy that the conservatives claim to be guided by. They see their job, he avers, as going back in time to ask what the Founders meant to determine what Americans in 2022 should do. This means, however, that the Court “would only recognize rights … recognized by the white men of the 1700s and 1800s.” [Court Justices elide over the fact that Jefferson himself wrote, in 1816, that it was “absurd” to believe that “preceding generations held the earth more freely than we do; had a right to impose laws on us, unalterable by ourselves; and that we, in like manner, can make laws, and impose burthens on future generations, which they will have no right to alter: in fine that the earth belongs to the dead, & not the living . . .” (Letter from Thomas Jefferson to William Plumer, then Governor of New Hampshire, July 21, 1816.)]

The strict originalism adhered to by the current Court, Waldman observes, is patently absurd:

"The framers were from a different time - thank heavens! Many owned slaves, or abhorred democracy. Nearly all disdained women’s equality. Most Americans lived isolated in villages and farms. Why should their views govern in 2022?”

In truth, he suggests, “today’s justices are not conservative because they are originalists; they are originalists because it is conservative. They fly a flag of convenience.”

Waldman writes that the Dred Scott decision, now widely regarded as the worst decision in the Court’s history, “was in fact the first major originalist opinion.” The Founders only granted rights to white people in the country (and at that, only to white, property-owning men). The current Court seems intent on honoring that sordid history. (Waldman points out that Lincoln was a counter-originalist, believing that the country should look to the words of the Declaration of Independence, rather than to those of the Constitution, for guidance for what the governing principles of the country *should* be. The Constitution, Waldman clarifies, was “a careful compromise” and one that avoided the issue of slavery as much as possible in order to form a union out of disparate states sharply divided on the issue. Lincoln, by contrast, claimed the country was founded in 1776, the date of the Declaration, not 1787, the date of the Constitution.)

Alas, the Court for much of its history hewed to the words of the Constitution, not the Declaration, and by the 19th Century was “fully entrenched as a tribune for privilege and the status quo.” It wasn’t until 1938 that the Court, in a footnote to a case, United States v. Carolene Products Company involving adulterated milk, directed scrutiny to laws that had a deleterious effect on “particular religious, or national, or racial minorities” disadvantaged in a majoritarian system. Justice Harlan Stone pointed out that “prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.” That is, because these groups are not only subject to prejudices, but usually lack efficacy in challenging the political process, they require extra protection in a democracy.

One claim often made supporting originalism is that law is supposedly *neutral*, applying to everyone in an equal manner. However, when prejudices have been enshrined structurally and systemically, “neutrality” is a fatuous excuse to maintain the status quo and power structures as is. This philosophy totally ignores the dicta of the Carolene Products case, maintaining that whatever protections for minorities were established subsequent to the time of the Constitution should not apply. Thus, for example, Justice Kavanaugh, concurring in the 2022 Dobbs v. Jackson Women's Health Organization et al. case that overturned Roe v. Wade, wrote that the Supreme Court must be “neutral” on the subject of abortion. But as the minority dissent maintained: “Because laws in 1868 deprived women of any control over their bodies, the majority approves States doing so today.”

Any evolution in concepts of liberty and equality are ignored by the stringent originalism of the current Court, which decided to eliminate federal protections and send the issue back to the states. In the states, however, as Waldman observes, gerrymandering has produced unrepresentative legislative maps and a skewed Congress; the vitiation of the Voting Rights Act by the 2013 decision in Shelby County v. Holder, which has interfered with the ability of minorities to vote; and the 2010 Citizens United decision allowing boatloads of dark money to influence the political process, tipping the scales in favor of a despotic group of white Christian Nationalists intent on abrogating the rights of the kinds of minorities referenced by Carolene Products. Thus, as Waldman holds, “At times we need strong national standards because states are abusing the rights of their people.”

Waldman concludes, “That a small group of people has seized so much power and wields it so abruptly, energetically, and unwisely, poses a crisis for American democracy.” What can be done? Waldman reviews a number of steps that *could* be taken, although the odds are stacked against success. But the US Supreme Court has shown itself to be a *threat* to American democracy. This concern, Waldman says, should be at the center of our politics.

Evaluation: Michael A. Waldman is an American attorney and presidential speechwriter and political advisor, who is currently serving as the president of the Brennan Center for Justice at NYU School of Law, a nonprofit law and policy institute. He is articulate and informed, and more passionately committed to justice for all than - apparently - is the majority of the current U.S. Supreme Court. I think this book should be required reading.… (plus d'informations)