Justices Antonin Scalia (Reagan appointee) and Clarence Thomas (Bush I appointee) have for many years anchored their jurisprudence to the extreme right of most judges who ever sat on the Court. They each espouse idiosyncratic philosophies which they use erratically to serve their plutocrat friends. But more moderate Republicans and the minority of Democrats held on for 30 years after 1976 to set a generally more centrist course in many areas of law most visible to the public. This delicate balance ended under President George W. Bush. Bush II, like Nixon, overtly sought out the most extreme right wing judges in service of corporate interests that he could place on the Court. Bush's two Supreme Court nominees have been as great a disaster for the country as were his illegal and fraudulent wars of aggression, his energy and environmental policies, his economic and fiscal policies, and his incompetent response to Hurricane Katrina.
With the appointment of John Roberts, Bush proved that a knowledgeable, successful and charming extremist right-wing ideologue willing to obfuscate his views during confirmation hearings would not be effectively opposed by Democrats. Democrats in any event had already given away their filibuster power to Senate Republicans in one of their typical "Getting to Surrender" deals that President Obama would later elevate to an art form. See Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court (2008) 309. Roberts was approved by a vote of 78-22.
Bush nominated 3d Circuit Judge Samuel Alito to take the seat of retiring Justice Sandra Day O'Connor who for many years exercised the moderate swing vote on the Court with one finger to the wind of popular opinion. Alito proved that an uncharming extremist right-wing ideologue unable to disguise his judicial record and totally unresponsive to questioning during confirmation hearings would also not be effectively opposed by Democrats. Alito was approved 58-42 in 2006.
Democrats who had the votes to stop Alito had they filibustered, refused to filibuster possibly because the Republicans threatened the "nuclear option" of abolishing the filibuster rule if they had. Of course, nothing could have been better for the Democrats. With the abolition of the filibuster rule by Republicans, Democrats would have been able to rule after their predictable victories against the highly unpopular Bush administration in 2006 and in the 2008 elections. Instead the Democrats both acceded to the Court turning hard right, and also hobbled themselves from governing after their 2008 victory, due to unprecedented use of filibusters by Republicans. This is the standard Democratic practice of tying their own hands to feign capture by Republicans so avoid fulfilling campaign promises that would offend their paymasters.
When the Democrats' turn came to appoint justices they selected two middle of the road judges, Sotomayor and Kagan, to replace Republicans Souter and Stevens. Time will tell if they are an improvement. Democrats never considered threatening their own "nuclear option" to get judges appointed who would be committed to reversing Buckley v Valeo, or at least overturning the highly unpopular Citizen's United, lost by Kagan as Solicitor General, arguing her one and only case. This is a litmus test that must be applied to any future nominations, but was not applied by Obama and Senate Democrats.
John Roberts claimed in his confirmation hearings that a judge was just an umpire. But he has proven to be an umpire who moves the fences, the bases and the pitcher's mound when plutocrats are at bat. On his field the law provides only a vocabulary for decrees that uniformly serve the powerful. His colleagues Alito, Thomas, Scalia, and usually Kennedy as well in any matters important to plutocrats, adhere to the same Roberts school for umpires. Though the four dissenters have generally presented a united front against the Roberts 5's election decisions, after Stevens retired it is not clear that any justice now on the court -- for the first time since it was decided - would vote to overrule Buckley v Valeo.
Waiting for change of personnel to restore the balance of power on the Court is a slow and uncertain strategy due to the effects of corruption on the composition of the Court since 1976. There is no reason to expect an improvement of the quality of appointments from the corrupt political class entrenched in all branches of government. Jurisdiction-stripping legislation backed by the threat of impeachment in case of violation is a more immediate and more easily obtained political goal than influencing the course of judicial appointments.
Public support for impeachment will depend on attitudes toward the Roberts 5 who are at the source of the problem of money in politics. If they should violate jurisdiction-stripping legislation the political will for impeachment will depend upon the strength of the same political movement required to obtain the legislation.
The Exceptions Clause of the Constitution provides the key for getting the Supreme Court out of elections as a prerequisite to getting money altogether out of politics.
The real test of whether Congress' Art III powers may be used to exclude politicians in robes from influencing elections, is not the legal arguments, which are in any event rooted more in political philosophy than law. It depends instead on whether the many disenfranchised by the money, the 99%, gain the political power to force Congress to exercise its Exceptions Clause power on this issue.
The fundamental structure of the Constitution provides checks and balances to assure that each branch stays within the scope of its proper function, and that "the People" have the ultimate power to guarantee a form of government that has the "consent of the governed," in the words of the Declaration of Independence. The Founders established the separation of powers as a necessary bulwark against arbitrary power, tyranny as they called it. Unelected judges should not be legislators on broad political questions governing all citizens who are perfectly capable of voting for the rules they desire. Legislators, who are responsive to the will of the people, should not be judges of cases involving particularized legal interests protected by law but that might be opposed by majority interests, biases or passions. The goal of this separation of powers is to uphold the rule of laws enacted with the consent of the governed against the reign of arbitrary power when applied to particular cases.
The Roberts 5 venture into legislating the rules for conduct of elections so as to determine electoral outcomes in favor of plutocrats egregiously exceeds the proper scope of a Court's authority. It is the obligation of Congress to restore the line restraining the Court's unchecked political power to where it resided throughout most of American history. After 35 years it should be clear that the Court majority will not restrain itself. They have only grown more brazen, especially since 2006. The Exceptions Clause authority was a fail-safe given Congress by the Constitution to address this very problem. Due to the Court's unconstitutional interference in elections, Congress has become too corrupt to exercise this power. It is up to the People to make them do so.
The 10 th Amendment left certain unspecified powers "reserved " to the People." What non-constitutional power could that right refer to if not that right of the people first declared in the nation's founding document written by Jefferson in 1776 to change any form of government that lacks the "Consent of the Governed?" Polls show that vast majorities correctly deny that the current corrupt government possesses the necessary consent of the governed. The People have a role under the Constitution to restore the basis for consent by restoring elections that are not distorted by money. It is the People themselves who have the power and legal right under the Constitution to force Congress to exercise its legal authority to eliminate the Court's perverse and unconstitutional influence on elections.
If voters can seize the necessary political power by prioritizing the single issue of the disenfranchisement of the many by the money in politics, there is more than enough legal justification to avoid any credible legal argument from Congress that they lack the authority to strip the Court of jurisdiction over these political questions, as demanded by the People. The People have nowhere consented to be governed by the corrupt money-driven election law enacted by an unelected Supreme Court. Congress also has the power to force the Court's certain compliance by making non-compliance an impeachable and criminal act as a matter of law.
It will only require voters to force Congress to exercise these powers by prioritizing this goal ahead of and to the exclusion of any other political demand until it is achieved. A nonpartisan minority large enough to swing elections, about 20% of voters, could achieve this reform of getting private interest money out of politics.
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