Restacking the Supremes

With the imminent retirement of Justice Kennedy, the specter of another Trump Supreme Court nominee looms. Those “never-Trumpers” are convulsed in anger and disappointment almost to apoplectic levels. Those who blindly support this President see this as the golden opportunity to “right” (pun intended) every Supreme Court decision with which they disagree.

archieAs I read about the announcement of Justice Kennedy’s retirement, the theme song from the iconic 70’s TV show, All in the Family, played in my head,



Boy the way Glen Miller played, 
Songs that made the hit parade,
Guys like us we had it made,
Those were the days,
And you know where you were then,
Girls were girls and men were men,
Mister we could use a man like Herbert Hoover again,
Didn’t need no welfare states
Everybody pulled his weight,
Gee our old Lasalle ran great,
Those were the days

(Those were the Days by Lee Adams and Charles Strouse)

That is the America of the past so idolized and whitewashed of reality. Some see this as Mr. Trump’s moment to return America to baseball, apple pie, and Chevrolet. They want to recover those “good ole’ days.” To make this a place where “guys like us” exist once again.

They forget that not everyone was “guys like us.” That was an America of black & white TV stained by full-color divisiveness.  And that is what many decisions rendered by the Supreme Court over the last few years sought to address; even the playing field so “guys like us” became us all.

On the day Kennedy announced his retirement, my wife and I met friends in Washington DC. One place we spent a full day was the National Portrait Gallery. Our purpose initially was to go to see the new portrait of President Barrack Obama and former First Lady Michelle Obama.

The National Portrait Gallery is just part of the enormous collection of artwork here. One area struck me as representative of the ever-present hope of America. On one wall was a portrait of Supreme Court Chief Justice Earl Warren. Facing him was a portrait of Supreme Court Justice Thurgood Marshall.

Warren, an Eisenhower appointee, was perceived as a conservative addition to the court. Marshall argued the landmark case Brown v Board of Education before the court. The case was contentious and complicated. Marshall argued the case twice before the court beginning in 1952 and again in 1953. In 1954, the court issued a unanimous and unanticipated decision written by Earl Warren. The court overturned Plessy v Ferguson which established separate but equal education systems for black and white students, firmly setting segregation in place.

Warren turned out to be more open and progressive in his views than the hyperbole of his conservatism claimed. The Warren-led court turned out to be more liberal than anyone could ever have imagined. Let’s hope that Kennedy’s replacement offers similar surprises once they assume the bench.

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