Detailing his grievances with Chief Justice John Roberts, Supreme Court Bar member resigned, berating Roberts and forewarning us of radical right’s plans, unless we act. I spoke to two other Supreme Court Bar members who expressed the same sentiments. Where are we headed? A look at the letter and some history behind this...
In our cynical society where few people actually have the courage to speak truth to power, I found a new hero in Judge James Dannenberg, member of the Supreme Court Bar from which he resigned in protest. I’ve read over Dannenberg’s resignation letter to Chief Justice John Roberts several times, feeling grateful. When he wrote it last year, the media ignored it, but Dannenberg’s words are important more than ever.
How many of us would love to say this to Roberts?
I no longer have respect for you or your majority...
Dannenberg wrote it near the end of the letter, but I’m leading with it because the whole letter shows this sentiment.
Anyway, resigning was not an easy decision. Since 1972, Dannenberg was a member of the Supreme Court Bar. He said that while he hasn’t always agreed with the Court prior to Robert’s, until recently he respected the Court’s liberal and conservative decisions as “products of mainstream legal reasoning.” Of legal conservatism, he said that it used to follow the doctrine of precedent, instead of “radical” change for “political ends.”
The Court Is an “Errand Boy” for Radical Right-Wing Politics
But no more. As Dannenberg pointed out, Roberts allowed the Court to become an “errand boy” for the Trump administration that had ”little respect for the rule of law.”
Putting “conservative” in quotes, Dannenberg blasted the majority on the Court for undermining
basic freedoms by hypocritically weaponizing others.
He blamed Roberts’s Court for turning freedom of speech and religion into (bolding my emphasis)
officially sanctioned bigotry and discrimination, as well as to elevate the grossest forms of political bribery beyond the ability of the federal government or states to rationally regulate it.
Indeed, there is no way with the Court’s rulings that neither the federal nor state governments can regulate these things. Therefore, any voting rights we create will never be safe, unless we reform the Court, which is the point of this diary.
He even called out the Federalist Society as part of the problem, since it’s vetting justices who are “extensions” of the GOP.
On Using “Textualism” & “Originalism”
Dannenberg criticized Roberts and the majority for undermining the rule of law for political goals, using the pretenses of “textualism” and “originalism.”
I totally agree. “Textualism” means the intent of U.S. laws, especially the Constitution, is not important, only the words matter. This is an attempt to ignore the history of why laws were created, like the 2nd Amendment. “Originalism” intends that laws, especially the Constitution, should be interpreted with the understanding at the time they were written, meaning the Constitution is not a living document. (Never mind that the Founders wrote the Constitution before the Industrial Revolution began drastically changing life in the U.S.)
Like most policies in the U.S., “originalism” has racist roots, as the American Political Science Review article, "Clocks Must Always Be Turned Back": Brown v. Board of Education and the Racial Origins of Constitutional Originalism,” points out. In fact, the article states that “Originalism has been invoked in every Republican Party platform from 1992 to 2016 (save for 2004).”
Our Freedoms Will Be Limited to...
Anyway, regarding the letter, Dannenberg stated that while Roberts says he’s concerned with the Court’s legitimacy, Roberts’s actions show different. The letter continued (bolding my emphasis),
It is clear to me that your Court is willfully hurtling back to the cruel days of Lochner and even Plessy. The only constitutional freedoms ultimately recognized may soon be limited to those useful to wealthy, Republican, White, straight, Christian, and armed males— and the corporations they control.
Lochner (1905) refers to a desire for oligarchs to set their own working environments including the length of hours demanded of workers and the lack of protections from terrible working conditions. Plessy (1896) refers to the segregation of Black people.
Dannenberg pointedly wrote that this does not represent America.
I spoke to two other Supreme Court Bar judges who expressed the same concerns as Dannenberg and wondered if they, too, should resign in protest. I told them they had a moral duty to speak up and warn the public.
The Clear Message for Americans
Dannenberg is clearly saying that this Court is a tool of the radical right, and that we aren’t going to be able to regulate our freedoms. This isn’t just about voter supression of people of color. It’s a problem for most of America. Democracy will not survive unless we secure voting rights for everyone, register them, and get out the vote.
Clearly, too, our problem is bigger than passing voting rights. I wrote a diary about how our problem with the filibuster mirrors a problem that nearly killed democracy in our past: “This Requirement Today Nearly Killed Democracy by1787...Coincidence? No.”
To save our democracy we must have a trifecta of reforms, at a minimum, and that includes Court reform. I talk about the trifecta in the same diary with the filibuster.