Courtroom sketch, of the Supreme Court Justices listening to lawyer Vicki Jackson argue the DOMA case, by Art Lien/Reuters, courtesy The New Yorker

Deyan Ranko Brashich

Larry Flynt, the legal scholar and publisher of Hustler magazine is one of my heroes, a staunch defender of civil rights and of the 1st, 5th and 14th Amendments to the Constitution of the United States.

As party plaintiff and defendant, Larry played a prominent role in litigation reaching the Supreme Court, setting precedent. His legal positions flirted with extremes but were fundamentally fair and just. Extra judicially he weighed in with blunt, sometimes obscene, criticism of public figures. His “Asshole of the Month” column was subject of litigation reaching the Wyoming Supreme Court and the one in Washington, DC as well as being the subject of several law journal articles, including one published in the Church of Jesus Christ of Latter-day Saints’ Brigham Young University Law Review.

Starting with the Burger and Rehnquist courts, Larry Flynt has found the Justices sadly wanting. He has savaged sitting presidents, senators, congressmen, moguls, celebrities and men of the cloth, most notably Jerry Falwell with the bogus Campari “First Time” ad that made it all the way to the Supreme Court. But he has reserved his most scathing opprobrium for the Justices, recently for Antonin Scalia, Anthony Kennedy, Clarence Thomas and his wife, Virginia. As of today Neil Gorsuch he should add to that Pantheon of worthies.

His most virulent and intemperate attack on the “Supremes,” which earned him a contempt citation and a threat of jail, was when he called them “nothing but eight assholes and a token cunt”. After reading today’s Trump Muslim Travel Ban decision I would change that to “nine assholes including three sitting cunts.”

The Supreme Court has abandoned its role in deciding what is right and what is wrong; what is permissible, what is not; what is constitutional, what is not. The individual Justices now decide on the basis of what is political correct, politically correct to the party that has shoehorned them onto the bench. I wonder if Larry Flynt has anything to say this time around, I know that I do.

Article III of the Constitution establishes judicial branch as a co-equal governing body, along with the Executive and Legislative branches. Section 1 vests that power in “one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish…” Section 2 provides “[t]he judicial power shall extend to all Cases, in Law and Equity, arising under this constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority”. Federal courts are limited to hear and decide actual cases and controversies and to decide them on the merits and not on partisan political bias.

Historically the “5-4” decision is a recent phenomenon. The Supreme Court averaged less than two “5-4” decisions per term through 1940. “In the period between 1801 and 1940 less than 2 percent of all the Supreme Court decisions were decided by 5-4 vote”. With the advent of the New Deal and with control vested in two dominant political parties, with no viable alternative, the Rehnquist and Roberts Courts finds the “5-4” decisions multiplying and averaging 60 cases a year or more than 20% of the Court’s docket.

Polarization has now spread to the judiciary so that “in the 2014-2015 term virtually every 5-4 decision … was split perfectly along party lines”. The Justices no longer decide what is right, what is constitutionally permissible, what is within the Executive’s power or what law or legislation is constitutional. They now decide cases based on the political agenda of the party that had nominated and supported them to become one of the “Supremes”. 

The Justices are no longer an independent judiciary, a co-equal partner in governance. The Supreme Court, as now constituted and operated along party lines, “constantly alters its interpretation of the Constitution” making it just another bunch of political hacks doing the bidding of vested political interests, see the just announced abortion free speech and anti-union decisions.

President Obama was denied his nomination and appointment of Merrick Garland to the Supreme Court by Mitch McConnell’s political demagoguery. Trump was able to fill this stolen Supreme Court seat. Now with the retirement of Justice Kennedy, the make up of the Court is crucial.

Why, you ask, should I care? You live in London, perhaps Belgrade or Tehran, or maybe Istanbul. Well, if you are a Muslim your travel choices have just been severely limited. If you live in Somalia the President’s authority to kill you with drones and wage war will be defined by this Court. The Court will decide if you are subject to detention at Guantanamo Bay, Cuba. And that’s just for starters.

I have a solution for this dilemma: each presidential candidate must nominate 3 candidates for the next open Supreme Court seat. The names are put in a pool and once a vacancy occurs that seat is filled by the luck of the draw, by lot. Truly “blind” American justice, better than what we endure now. I’m sure Larry Flynt would approve.  

Deyan Ranko Brashich is a contributor writing from New York. He is the author of Letters from America, Contrary Views and Dispatches. His contact and blog “Contrary Views” is at www.deyanbrashich.com

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