By Jessie Seigel / Washington, D.C.
When I was in law school, my constitutional law professor had the annoying habit of asking us, in any given case studied, what philosophical theory the Supreme Court’s decision was based upon. I found this aggravating, because the decisions were treated as being solely based on high scholarly reasoning. There was never any reference or discussion of the role politics played in those decisions.
But I knew that, as early as 1803, Justice John Marshall had used a clever sleight of hand in order to grab for the Court the power to decide what does or does not violate the Constitution. He did so to outmaneuver President Jefferson politically. I also remembered reading the Supreme Court’s cowardly excuses for finding against the Cherokee Nation in the 1830s because it feared that President Jackson would not enforce a pro-Cherokee decision.
Politics has always affected the Supreme Court to a degree, both who has been appointed to it, and the nature of its decisions. Nevertheless, the justices tended to keep a respectable distance from politicians, allowing the Court to maintain a facade of high ethical standards. That is, until the most recent set of conservative justices started openly hobnobbing with ultra-conservative politicians and doing the bidding of the right-wing Federalist Society.
In his recent book, Allow Me to Retort, a Black Guy’s Guide to the Constitution, Elie Mystal, justice correspondent for The Nation and frequent legal commentator on MSNBC, has set out a bold and sometimes brash antidote to the reactionary justices’ subversion of constitutional interpretation in order to further their regressive goals.
Mystal, a graduate of Harvard Law School—who declares, “I hated the practice of law and wanted to get out almost as soon as I got in”—has made a career of analyzing and critiquing the law and the so-called reasoning of those who create it.
Mystal begins the book by explaining that his goal is “to expose what the Constitution looks like from the vantage of a person it was designed to ignore.” He goes on to make cogent arguments that the constitutional interpretations conservatives want people to accept are “little more than an intellectual front for continued white male hegemony.”
With plainspoken wit and rightful anger, Mystal addresses the ways in which conservative Supreme Court justices and lawmakers turn legal principles inside-out in an effort to take the country back to the period when rich white men enslaved Black people, and women and numerous minorities had no rights.
In doing so, he takes many of the positions one would expect of a progressive. He sets those positions out aptly, if bluntly. Unlike other pundits or legal scholars, Mystal does not pull his punches.
According to Mystal, people have been made to believe that the law is an “objective thing” when actually it is a body of subjective decisions made over time “to protect people and activities [the courts and white lawmakers] like, and to punish people and activities they don’t like.”
He explains how justices are able to manipulate their analyses of cases to get the results they want. Mystal writes, “If I’m a judge and I don’t like the conclusion a test leads me to, I can just create a ‘distinction’ (often without a difference). If your test applies to a burning bush and I don’t like it, I can just call the bush a ‘tree.’”
Thus, the current Supreme Court conservatives use such so-called judicial theories as federalism, judicial restraint, originalism, and textualism as smoke screens to hide their result-oriented machinations.
But if the Court’s reactionaries want to pretend their legal interpretations are rooted in the original text of the Constitution as understood in the 1700s, Mystal is ready to beat them on their own terms.
Mystal punctures the fiction that the right to gun ownership for self-defense was an original purpose of the Second Amendment to the Constitution. He points out that the conservatives had to “read ‘well-regulated militia’ out of the text of that Amendment and substitute self-defense as the ‘original purpose’ of the language.” The self-defense purpose, he writes, is a new one “made up of whole cloth by the gun lobby.”
The Fourth Amendment states: “the right of people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated….” Mystal argues that stopping people because they’re Black is an “unreasonable search.” Shooting people because they’re Black is an “unreasonable seizure.” He asserts that the phrase “shall not be violated” should require holding policemen personally liable—including prosecuting them—when they violate these Fourth Amendment principles.
Mystal also argues that all confessions are unconstitutional because, under the Fifth Amendment, “no person…shall be compelled in any criminal case to be a witness against himself…” Even if the police recite to suspects their right to remain silent and to have a lawyer, they currently are still allowed to continue questioning suspects unless they affirmatively ask for a lawyer or “blurt out a statement against their own interest.” That, Mystal contends, amounts to compelling the suspect to be a witness against himself or herself.
Mystal passionately declares, “The supposed rights of the unborn hold no moral suasion in a society that is willing to consign children who are born alive to poverty, malnutrition, and toxic air and water.” He proposes that supporters of a woman’s right to abortion should rely on the Thirteenth Amendment’s injunction against slavery, “because the same amendment that prohibited slavery surely prohibits the state from renting out women’s bodies, for free, for nine months, to further its interests. Forced labor is already unconstitutional.”
Mystal adds that the fetal personhood laws being proposed in various locales are not about a right to become life but about conservatives wanting the “forced incubation of fetuses by women who are unwilling to perform the work;” that is, involuntary servitude. He adds, “The Thirteenth Amendment flatly prohibits forced labor, and it doesn’t have an exception for labor that white men won’t do themselves but think is really important for others to do for society.”
This may seem a creative reading of the Thirteenth Amendment, but is it no more so than the push to give embryos the legal status of the human beings they might ultimately become.
Finally, Mystal asserts that Republicans have politicized the nomination and confirmation process to ensure that only advocates of the Republican political agenda get on to the Court. And the largest part of that agenda is the suppression of voting rights, which the current Supreme Court has backed through its evisceration of the Voting Rights Act of 1965.
Mystal does not begrudge the Republicans their aggressive tactics. But he argues that “Democrats have been fools not to adopt the same tactics.”
Mystal’s Cure for a Reactionary Court
Mystal proposes, as the most feasible cure, the expansion of the Court, followed by Congressional passage of term limits for Supreme Court justices.
Although Supreme Court Justices cannot, under the Constitution, be forced to retire, they could be required to take senior status and rotated to a lower federal court for the remainder of their lives—with the possibility of being called back if one of the sitting justices needs to recuse himself or herself.
The number of Supreme Court justices is not limited by the Constitution and has been changed numerous times during U.S. history for strictly political reasons. Mystal advocates that the Democrats now add 20 liberal justices to the Court, for a total of 29.
He chooses the number 29 so that legislation requiring term limits cannot be ruled unconstitutional by the current conservative majority. Mystal thinks that number would also lower the Republican desire for counter-expansion. Finally, this degree of court expansion would diminish the power of each individual Supreme Court justice.
Mystal suggests that the 29 justices function in a panel system. A three-judge panel would be chosen at random from available judges to issue a ruling in a particular case. But if the rest of the bench disagreed, a majority of the judges could vote to rehear the case as a full group. Mystal notes that the Ninth Circuit Court of Appeals currently has 29 judges whose work proceeds in just this manner.
Though some of Mystal’s proposals may, at first blush, seem unusual or extreme, they are no more so than that of the right-wing political actors he opposes, and far more clearly reasoned. Ultimately, he is calling for the Democratic Party to fight as hard for a free and equal society as the Republicans fight against it. The Democrats would do well to heed his advice.
Political columnist Jessie Seigel had a long career as a government attorney in which she honed her analytic skills. She has also twice received an Artist’s Fellowship from the Washington, D.C. Commission on the Arts and Humanities for her fiction, and has been a finalist for a number of literary awards. In addition, Seigel is an associate editor at the Potomac Review, a reviewer for The Washington Independent Review of Books, and a dabbler in political cartoons at Daily Kos. Of this balance in her work between the analytic and the imaginative, Seigel jokes, “I guess my right and left brains are well-balanced.” More on and from Seigel can be found at The Adventurous Writer, https://www.jessieseigel.com.