Saturday, September 10, 2016

"Conservative Court-Packing" with Almost-Justice Phyllis Schlafly

      Recently-deceased activist Phyllis Schlafly, in her last year of life, had some interesting ideas tending to expand federal government and elevate the executive and legislative branches of government above the judiciary, especially the Supreme Court—a Court to which she tried to have herself appointed, as explained below. She was best known as a “conservative” and for being “pro-family” in an ultra-traditional sense; but her “modest proposals” of March 22, 2016, in the Townhall article No Confirmation of Supreme Court Nominee, raise interesting questions about the first of those two descriptors.


     On March 16th, President Obama announced his nomination of Judge Merrick Garland to succeed the late, great Justice Antonin Scalia . . . .
     If Republicans elect the next president and retain control of Congress, there will be plenty of time to add new Justices to the Supreme Court. One scholar proposed expanding the size of the Court to 11 or more Justices, since a larger Court reduces the likelihood that any single appointee would fundamentally change the Court’s direction.
     In addition to controlling the size of the Supreme Court, Congress could also authorize the President to nominate new Justices on a regular timetable . . . .
     . . . The unexpected Supreme Court vacancy is a golden opportunity for Congress to reassert its power over the number of Justices and the process for appointing them.
Id. Note that Schlafly mentions expanding the size of the Court only after offering the scenario where a Republican President would have power to add Justices, see id. So her proposal to make the Court bigger may not be very neutral. Indeed, it may be no more neutral than its most famous past exemplar, Franklin Roosevelt’s infamous and failed “court-packing” attempt in the 1930’s.

I. Schlafly and FDR: More Alike than Anyone Suspected

     Indeed, FDR’s court-packing gambit is the first thing of which one thinks when seeing Schlafly’s proposal for “11 or more Justices”, id. (emphasis added) Would Schlafly have been happy if Barack Obama, during the period of his presidency that the Democrats held both House and Senate, expanded the number of Justices to 11—as per her recommendation—and promptly added Bill and Hillary Clinton (or Gloria Steinem and Howard Dean, say) as the newest Members of the learned Court? Probably not. So, one suspects that Schlafly’s expanded Court is meant to expand in one direction only, the political Right or ultra-Right. This does not seem fair.

     And what is the stopping principle for the number of Justices? Why not 21, a lucky, blackjack-sounding type of number? Maybe nine is a sensible number after all.

II. Schlafly v. the Court…Sometimes

     Schlafly is somewhat less to blame for her proposal of rotating Justices and imposing a sort of “term limit” on the Court’s Members. People on the Left and the Right have both proposed such an idea. But again, where is the stopping principle? If life tenure for a judge or Justice is so horrible, shouldn’t we also have rotation and term limits for all federal appellate judges . . . and all federal district judges too? Sauce for the goose, sauce for the gander.

     But Schlafly had a long habit of complaining about the Court in general. She wrote a whole book, The Supremacists, arguing, see id. passim, that the Court has too much power. But did she really believe that? Did she have a problem with the Court’s power when it issued the Hobby Lobby decision? Or Bowers v. Hardwick? Or Citizens United? If not, then some may wonder whether her complaining about the Court was done simply to have something to complain about. (Schlafly, a former model as Wikipedia notes, didn’t seem to have a problem with appearing on camera, or on radio or in print, on a constant basis.)

     While she may not have bothered to get people to protest Hobby Lobby or other Court decisions supra, she had no hesitation about “nullifying” the Court’s authority when she felt like it, see, e.g., Schlafly: GOP Hopefuls Must Vow To Defy Gay Marriage Ruling Until We ‘Decide Whether We Want To Overturn It’:

     In an interview with far-right pastor and Colorado state Rep. Gordon Klingenschmit today, Phyllis Schlafly declared that the Supreme Court’s recent marriage equality ruling should simply be ignored while “we the people” decide if we want to overturn it.
     “There’s nothing in the Constitution about homosexual marriage,” Schlafly said. “The judges made it up and some people think that because they did and the Supreme Court has spoken, therefore we have to accept it. We don’t.”

Id. So does that apply to Hobby Lobby, too? Can Americans just ignore what the Court said there? What would Schlafly say??

III. The Importance of Not Being Counterproductive

     Moreover, her recent proposals for the Court may have been self-contradictory or self-defeating. E.g., while Schlafly often claimed to be against big government, especially the federal sort, her Townhall article supra tells us she wanted to expand the size of the Court, which means expanding the size of the federal government and spending more taxpayer money. Not to mention her attempt to make the Court a tool of the Executive by having a Republican president (perhaps Donald Trump, whom she supported despite his multiple marriages that didn’t comport with Schlafly’s declared Catholic faith) pack the Court with presumably-compliant Justices. Thus, her efforts would be counterproductive, if she were really interested in a smaller, fairer federal government. (And, as mentioned at the top of this article, that all brings into question how “conservative” she really was.)

     Counterproductivity was a long-time problem of Schlafly’s, by the way. For example, she claimed to oppose abortion bitterly; but at the same time, she infamously said at a Bates College speech in 2007, “By getting married, the woman has consented to sex, and I don’t think you can call it rape.” Wikipedia Biography, supra. But if husbands are busy raping their wives, then, logically, that would tend to increase the abortion rate, since more unwanted pregnancies would probably result. Therefore her “let’s overlook marital rape” stance was not only repulsive and problematic in itself: it also undercut her supposed opposition to abortion.

     Also undercutting that opposition, arguably, was her attempt in 2005 to get Justice Anthony Kennedy impeached from the Court for his stance against the death penalty for minors. Id. If we expand “abortion” to mean killing in general except for self-defense, then Schlafly was perfectly happy to see young people “aborted” by the State. (Incidentally, the Catholic Church has been active for some time against the death penalty, period, which shows another self-contradiction on Schlafly’s part.)

IV. “Justice Schlafly”: It Could Have Happened

     And one of the most trenchant contradictions in her relation to the Court, is that for all her criticism of its “excessive power”—she wanted that power for herself. As Randall Balmer notes in Phyllis Schlafly: The antifeminist who wanted a job in the Reagan administration,

     Schlafly, who had supported Barry Goldwater’s campaign for the presidency in 1964, initially backed Philip Crane for the Republican nomination in 1980 because she harbored doubts that Reagan was sufficiently conservative. Eventually, she rallied behind Reagan and evidently believed that her advocacy on his behalf entitled her to a plum appointment in his administration. ...
     Schlafly continued her efforts into the early days of the Reagan administration, but to no effect. Undeterred, she organized yet another campaign several months later to have herself appointed to the Supreme Court seat vacated by the retiring Potter Stewart in June 1981. Reagan, however, who had promised to appoint the first woman to the high court, chose Sandra Day O’Connor instead. ...
     Reagan made several questionable appointments during his presidency — the ethically challenged Edwin Meese III as attorney general, for instance, or the environmentally hostile James Watt as secretary of the Interior . . . . But I suspect that installing Phyllis Schlafly as . . . . Supreme Court justice, would have made those appointments look sagacious by comparison.
Id. Schlafly’s spectacular lack of qualifications to be a Justice should elude no one: her failure ever to be a judge in the first place, and her political hyperpartisanism which did not promise a judicial temperament on her part, may be some of the main problems, though there may be others. ...For all we know, maybe part of her Court-packing scheme of earlier this year, was to allow an extra seat to have herself, or at least a relative, appointed to by a grateful Donald Trump. In any case, it is fascinating to see that she felt she was better-qualified than Merrick Garland or Anthony Kennedy to be a Justice of the Supreme Court of the United States.

V. “The Power of Prayer”, Schlafly, the ERA, and the Court

     So, without calling Schlafly a self-contradicting, self-serving demagogue and celebrity-seeker (cf. “Speak no ill of the dead”), one still is allowed to wonder how exactly how she justified her principles and actions, with respect to the Court or otherwise. Her choice to echo FDR’s worst, most power-hungry side, re the issue of Court-packing, is not a choice which politicians, lawyers, or citizens of the present should echo themselves. And those who choose to pray for her soul, can—while also praying for an Equal Rights Amendment, if they like—, in addition, pray for the Supreme Court: a Court which, even though never burdened by having Schlafly as a member, still seems to need prayers badly, with all the ambitious persons trying to chop, slice, dice, stretch, or drop-kick the Court into whatever configuration will fit those individuals’ own idiosyncratic interests. The Court is for all the people, after all, not just for a few of us.

(Cross-posted, with edits, from Casetext)

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