Supreme Court of the United States

"I had never before argued a Supreme Court case on my own. Since arguments in that court are thirty minutes in length per side, and since most of the time consumed in argument is taken up with responses to questions of the Court, Dean [Ringel] and I devoted most of our preparation to three overlapping issues, ones that have consumed my attention in every later Supreme Court argument as well. The first was jurisprudential in nature. What rule of law were we urging the Court to adopt? How would it apply in any future case? What would be its impact on First Amendment legal doctrine?"

"In my conception of it, the primary role of the Court is to decide cases. From the decision of cases, of course, some changes develop, but to try to create or substantially change civil or criminal procedure, for example, by judicial decision is the worst possible way to do it. The Supreme Court is simply not equipped to do that job properly."

"The first opinion the Court ever filed has a dissenting opinion. Dissent is a tradition of this Court... When someone is writing for the Court, he hopes to get eight others to agree with him, so many of the majority opinions are rather stultified."

"The Court's great power is its ability to educate, to provide moral leadership."

"Nine, nine... There have been nine men there for a long, long time, right? So why not nine women?"

""At the Supreme Court, those who know don’t talk, and those who talk don’t know,” Ginsburg was fond of saying."

"This Court is forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added."

"Civil liberties had their origin and must find their ultimate guaranty in the faith of the people. If that faith should be lost, five or nine men in Washington could not long supply its want."

"The court is the least abstract of institutions. It is nine men, nine very human men, participating in a process that can be impressive or disturbing, grave or funny. And contrary to the general impression, the process is more visible than most of what goes on in government."

"It is true that diminished legitimacy may be restored, but only slowly. Unlike the political branches, a Court thus weakened could not seek to regain its position with a new mandate from the voters, and even if the Court could somehow go to the polls, the loss of its principled character could not be retrieved by the casting of so many votes. Like the character of an individual, the legitimacy of the Court must be earned over time. So, indeed, must be the character of a Nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court's legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals. The Court's concern with legitimacy is not for the sake of the Court but for the sake of the Nation to which it is responsible."

"For nearly 40 years, the Supreme Court has been evading the 14th Amendment's provision of "equal protection" of the law for all, in order to let government-imposed group preferences and quotas continue, under the name of "affirmative action." Equal rights under the law have been made to vanish by saying the magic word "diversity," whose sweeping benefits are simply assumed and proclaimed endlessly, rather than demonstrated."

"All general business corporation statues appear to date from well after 1800.. The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare. Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans they had in mind. The fact that corporations are different from human beings might seem to need no elaboration, except that the majority opinion almost completely elides it…. Unlike natural persons, corporations have ‘limited liability’ for their owners and managers, ‘perpetual life,’ separation of ownership and control, ‘and favorable treatment of the accumulation of assets….’ Unlike voters in U.S. elections, corporations may be foreign controlled. ...It might be added that corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their ‘personhood’ often serves as a useful legal fiction. But they are not themselves members of ‘We the People’ by whom and for whom our Constitution was established."

"(TH: In Justice Stevens’ dissent in Citizens United, he pointed out that corporations in their modern form didn’t even exist when the Constitution was written in 1787 and got its first ten amendments in 1791, including the First which protects free speech)"

"In addition to this immediate drowning out of noncorporate voices, there may be deleterious effects that follow soon thereafter. Corporate ‘domination’ of electioneering can generate the impression that corporations dominate our democracy. When citizens turn on their televisions and radios before an election and hear only corporate electioneering, they may lose faith in their capacity, as citizens, to influence public policy. A Government captured by corporate interests, they may come to believe, will be neither responsive to their needs nor willing to give their views a fair hearing. The predictable result is cynicism and disenchantment: an increased perception that large spenders ‘call the tune’ and a reduced ‘willingness of voters to take part in democratic governance.’ To the extent that corporations are allowed to exert undue influence in electoral races, the speech of the eventual winners of those races may also be chilled. Politicians who fear that a certain corporation can make or break their reelection chances may be cowed into silence about that corporation. On a variety of levels, unregulated corporate electioneering might diminish the ability of citizens to ‘hold officials accountable to the people,’ and disserve the goal of a public debate that is ‘uninhibited, robust, and wide-open.’"

"After World War II] the Court started chipping away at the “separate but equal” doctrine, exposing as it went along the inequality of the practices sheltered by it. Then in 1954, the case of Brown v. Board of Education presented the basic question of whether a segregated public school system with equal physical facilities was constitutionally permissible under that doctrine. The Court held that the separation of the races in the public schools placed a badge of inferiority upon the minority group; that it was a denial of the constitutional right to equal protection of the laws; that the doctrine of separate but equal could have no application, and specifically disapproved Plessy v. Ferguson in that regard. The Court thus opened the door to all phases of civil rights, and in rapid succession applied the same reasoning to other instances of racial discrimination."

"Once in office, Ronald Reagan sought to nominate candidates to the federal judiciary who would roll back liberal judicial decisions and promote his favored constitutional values, which included opposition to abortion. Not entirely coincidentally, the 1984 Republican Party platform “applaud[ed] President Reagan’s fine record of judicial appointments, and … reaffirm[ed] [the party[’s] support for the appointment of judges at all levels of the judiciary who respect traditional family values and the sanctity of innocent human life.” By the time Justice Lewis Powell retired in 1987, the Supreme Court’s original seven-person majority in Roe had swindled to four Justices who supported abortion rights: William Brennan, Thurgood Marshall, Harry Blackmun (the original author of Roe), and John Paul Stevens, who had replaced William O. Douglas in 1976. Reagan’s first Supreme Court nominee, Sandra Day O’Connor, replaced Potter Stewart in 1981. O’Connor strongly criticized Roe’s trimester framework in her 1983 dissent in City of Akron v. Akron Center for Reproductive Health and argued that abortion restrictions should be tested by a more lenient standard: whether they imposed an “undue burden” on women’s ability to obtain abortions. In 1986, Reagan nominated William Rehnquist, one of the original dissenters in Roe, to become Chief Justice, replacing Warren Burger, and nominated Antonin Scalia, a vocal opponent of Roe, to fill Renquist’s position as Associate Justice. These three Justices joined Byron White, the other original dissenter in Roe. To replace Powell, Reagan nominated D.C. Circuit Judge Robert Bork, an outspoken critic of Roe who championed the jurisprudence of original intention. The choice of Bork appeared to provide the crucial fifth vote to overturn Roe v. Wade. The Bork nomination produced a national controversy, and ultimately the senate failed to confirm him. Pro-choice groups mobilized to help defeat the nomination. Eventually the Senate confirmed Reagan’s third nominee, Anthony Kennedy, a conservative circuit judge from California who was generally regarded as more moderate than Bork. In hindsight, the failure of the Bork nomination was a turning point in the constitutional struggles over abortion. It raised the stakes in succeeding Supreme Court nominations and showed that they could be bitter and politically costly to a president. Bork’s defeat also demonstrated that pro-choice forces had considerable muscle that could be harnessed in the political arena if the public thought that abortion rights were truly threatened. It gave notice that Republican politicians might pay more heavily than they had previously believed if they tried to overturn Roe."

"Roe’s fate seemed even bleaker when two of the Court’s most liberal Justices, William Brennan and Thurgood Marshall, left the Court due to failing health. Brennan resigned on July 20, 1990, and was replaced by David Souter, a bookish jurist from New Hampshire about whom little was known when he was nominated. President George H.W. Bush, attempting to avoid a replay of the Bork nomination, hoped that Souter would be able to avoid a politically difficult confirmation battle. Thurgood Marshall, the great civil rights lawyer who had argued Brown v. Board of Education, announced his retirement on June 27, 1991. To replace him, President Bush nominated Clarence Thomas, a conservative African American judge on the D.C. Circuit. Thomas was widely believed to be hostile to Roe v. Wade but stated at his confirmation hearings that he had never debated it and had no personal opinion on the subject. The Thomas nomination was bitterly contested by senators who doubted Thomas’s qualifications and his commitment to civil rights and civil liberties, including the right to abortion. Matters were thrown into an uproad when Thomas was accused of sexual harassment by a former employee at the Equal Employment Opportunity Commission (EEOC), Anita Hill. After weeks of controversy, Thomas was finally confirmed by a 52-48 vote, the narrowest margin in Supreme Court history."

"I would love you to consider an apology sometime and some full explanation of why you did what you did with my husband So give it some thought and certainly pray about this and come to understand why you did what you did. Okay, have a good day."

"Why would we cut off the national debate about this next justice? Why would we squelch the voice of the people? Why would we deny the voters a chance to weigh in on the make-up of the Supreme Court?"

"In an election year, we have a long tradition, that a lame-duck president doesn't get to jam a Supreme Court nominee through on the very end."

"I want you to use my words against me. If there is a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say, "Lindsey Graham said let's let the next president, whoever it might be, make that nomination." And you could use my words against me and you'd be absolutely right."

"When an election is under way the American people are about to weigh in on who's going to be the president. And that's the person, whoever it may be, who ought to be making this appointment."

"We will move forward without delay and in deliberate fashion. We will process the president's nominee and I believe that we will confirm that nominee as well."

"I believe the right thing to do is for the Senate to take up this nomination and to confirm the nominee before election day."

"I will support President @realDonaldTrump in any effort to move forward regarding the recent vacancy created by the passing of Justice Ginsburg."

"The Senate has more than sufficient time to process a nomination. History and precedent make that perfectly clear."

"The exceptionally urgent need to reduce the risk of COVID-19 exposure for Medicare and Medicaid patients given the anticipated winter surge in infections tips the equities overwhelmingly in favor of a stay"

"Clarence doesn't discuss his work with me, and I don't involve him in my work"

"Supreme Court eras are often identified with their chief justices, as is true of the current period that began with Roberts nearly two decades ago. But the Court can be measured also by presidential influence. Certain presidents, such as Franklin D. Roosevelt, who appointed eight justices in his twelve years in office, had a disproportionate effect on the Court. Ronald Reagan and Richard Nixon also stood out for their imprint. The Trump effect, especially in terms of the individuals chosen and the resulting shift in the balance of power, has been incomparable. He is gone from office and they are here for life."

"Every generation, while finding its own uses for the Court, has preserved the Court as a symbol of the need for limits and for continuity in a nation of novelties. The Supreme Court thus become the American political conscience, a kind of secular papacy, a new search in every generation for what the more large-minded and more foresighted of the Founders might have meant if they were alive. It is the Great Remembrancer of our foundations."

"There are limits to analyzing the reasoning of published Supreme Court opinions, to say nothing of drafts. Logic and syllogisms don’t carry us very far in the law."

"None of us are safe from the extreme anti-women and anti-L.G.B.T.Q. ideology that now dominates this court."

"Madison’s “harmonious system of mutual frustration,” as the historian Richard Hofstadter called it, survived in continuity through many changes. The constitutional debates of 1787–88 fed into the contests of political modernity, giving it new terms and new metaphors. The Constitution itself became a stake in the American version of the contest between liberalism and conservatism. Appointments to its legal guardian, the Supreme Court, were fought over in partisan terms by the White House and Senate. The justices decried the labels, which they said caricatured their work. For the bulk of legal disputes that reached them, the point was fair, but for the rarer but headline cases of deep political division and high constitutional controversy—slavery, business and labor, personal morals, institutional powers—the complaint missed the mark, as a historic record of reliable partisanship along liberal-left and conservative-right lines suggested."

"Decades ago, Justice Louis D. Brandeis declared that "the reason the public thinks so much of the Justices of the Supreme Court is that they are almost the only people in Washington who do their own work." Today, no knowledgeable observer of the court would make a similar claim. As late as 1940, most clerks acted primarily as secretaries. In some cases a clerk might contribute an important footnote to an opinion, but not until Justice Frank Murphy and Chief Justice Fred Vinson joined the court in the 1940s did clerks take the lead in writing opinions and sometimes determine a justice's vote. As the number of clerks increased from two to three and, finally, to four, so did their involvement in their justice's work."

"Conservatives on the Supreme Court have repeatedly gutted provisions of the 1974 amendments to the Federal Election Campaign Act (FECA), most famously in 2010 with their notorious Citizens United decision. With that stroke, over the loud objections of the four “liberals” on the Court, corporations were absolutely deemed as “persons” with full constitutional rights, and billionaires or corporations pouring massive amounts of money into campaign coffers was changed from “bribery and political corruption” to an exercise of the constitutionally-protected “right of free speech.”... Increasingly, because of the Supreme Court’s betrayal of American values, it’s become impossible for people... to rise from social worker to the United States Senate without big money behind them. Our media is absolutely unwilling to call this what even Andrew Jackson would have labeled it: political corruption. But that’s what it is and it’s eating away at our republic like a metastasized cancer... While the naked corruption of Sinema and Joe Manchin is a source of outrage for Democrats across America, what’s far more important is that it reveals how deep the rot of money in American politics has gone, thanks entirely to a corrupted Supreme Court."

"In Justice Stevens’ dissent in Citizens United, he pointed out that corporations in their modern form didn’t even exist when the Constitution was written in 1787 and got its first ten amendments in 1791, including the First which protects free speech.... Noting that corporations “inescapably structure the life of every citizen,” Stevens continued: “It might be added that corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their ‘personhood’ often serves as a useful legal fiction. But they are not themselves members of ‘We the People’ by whom and for whom our Constitution was established.” Even worse than the short-term effect of a corporation’s dominating an election or a ballot initiative, Stevens said (as if he had a time machine to look at us now), was the fact that corporations corrupting politics would, inevitably, cause average working Americans — the 95 percent who make less than $100,000 a year — to conclude that their “democracy” is now rigged."

"Donald Trump is an astoundingly dangerous candidate for president. He is a pathological liar …"

"We want a Supreme Court which will do justice under the Constitution -- not over it. In our courts we want a government of laws and not of men."

"Throughout American history, the Supreme Court, often derided as the least democratic branch of the federal government, has, paradoxically, best maintained its legitimacy when it has functioned as the most democratic branch—that is, when it has deferred to the constitutional views of Congress, the president, and the country as a whole. For all the invective initially generated by Brown v. Board of Education, which outlawed school segregation, the decision was supported by more than half of the country when it was handed down in 1954, a time when southern minorities were blocking Congress from enacting the civil-rights legislation that the public supported. Many of the most famous decisions by the Warren, Burger, and Rehnquist Courts similarly reflected the popular will: a survey of eighty-eight civil-rights and civil-liberties cases between 1953 and 1994 found that, in most instances, the Supreme Court was generally in sync with public opinion. When public opinion opposed a particular rights claim, so, by and large, did the Supreme Court."

"In the United States at the present day, the reverence which the Greeks gave to the oracles and the Middle Ages to the Pope is given to the Supreme Court. Those who have studied the working of the American Constitution know that the Supreme Court is part of the forces engaged in the protection of the plutocracy. But of the men who know this, some are on the side of the plutocracy, and therefore do nothing to weaken the traditional reverence for the Supreme court, while others are discredited in the eyes of the ordinary quiet citizens by being said to be subversive and Bolshevik."

"Leaks of any kind are rare at the Supreme Court, and Totenberg says there hasn't been such a massive breach in modern history. She called it a "bomb at the court" that undermines everything the body stands for internally and institutionally, including its members' trust in their law clerks and in each other. "No fully-formed draft opinion has been leaked to the press or outside the court," Totenberg says. "Once or twice there may have been leaks that say how is something going to turn out, or after-the-fact that somebody may have changed his or her mind. But this is a full-flown, Pentagon Papers-type compromise of the court's work.""

"And as I say to you, whenever you put a man on the Supreme Court, he ceases to be your friend, you can be sure of that."

"The Supreme Court is a clown show. The idea that these nine individuals carry incredible wisdom is being debunked in real time."