EXTREME COURT

How did the 1857 SCOTUS end up sitting in 2026?

This is Mark Green from our judicial Inflection Zone.

This past week’s Supreme Court decisions are a brutal reminder that America now is in the grip of two ironies that super-size each other.

One is an obsessed autocrat trying to overturn our Democracy on its 250th birthday. That’s alarming enough. The other is a High Court majority bent on issuing hyper-technical opinions to ignore lower courts and precedent to ratify a regime little better than the one we declared our independence from in 1776.

How did we wind up for now with a progressive public majority in polls alongside a Court that might not uphold Brown v. Board if it re-appeared on its (Shadow) Docket?

The very unsatisying answer is -- Bad Luck.

So how do we escape it? It’ll take years of civic actions and elections to overturn the historic anomaly of MAGAats romping in the extreme, not the mainstream:

First, a stroll down memory lane and then tomorrow the horizon of a better future.

Looking back three decades, there were five moments in hindsight that together created a Thomas 6-3 Court rather than a Kagan 6-3 Court:

I. When Justice Thurgood Marshall was forced by illness to retire in June 1991, Bush41 was able to nominate and confirm Clarence Thomas…only seven months before Democrat Bill Clinton was sworn in as president. However, late allegations of sexual misconduct by Anita Hill, an assistant to Chairman Thomas at the EEOC, led Senate Judiciary Chairman Joe Biden to re-open hearings, a first since 1925.

But pressured by Republicans forcing a vote, Biden flinched, cutting short the few days needed for several witnesses to corroborate Hill. Thomas was confirmed 52-48.

2. In 2005, Justice Sandra Day O’Connor resigned her seat to take care of her ailing husband. That unexpected opening allowed Bush43 to name Samuel Alito.

3. In late October 2016, House Republicans demanded that FBI Director James Comey reopen a completed criminal probe of Democratic nominee Hillary Clinton over use of her husband’s email server.

When the new information proved inconsequential, Comey reiterated his exoneration two weeks later, just days before the November election.

According to NYTimes pollster Nate Silver, however, that delay allowed the issue of “but-her-emails” to dominate the closing week of the election and likely made the difference despite Clinton’s plurality of 2 percent or 2.9 million votes.

That of course allowed President Trump to later nominate Brett Kavanaugh 2018. But credible testimony by Dr. Christine Blasey Ford that he had sexually assaulted her while in college prompted the FBI to investigate the charge. Just a week later however and before many witnesses could testify, the Bureau – under instructions from the Trump White House – quickly cut the probe short. Kavanaugh was confirmed 50-48.

4. When Ruth Bader Ginsberg died in September 2020, most observers thought that Majority Leader McConnell couldn’t rush through Trump’s choice of Amy Comey Barrett in the weeks remaining of Bush’s term after refusing to even hold a confirmation hearing for eight months for Merrick Garland in Obama’s last year in office.

Obviously, the death or resignation of a justice can occur randomly. But the odds of ALL these developments -- Anita Hill, O’Connor, Christine Ford, Merrick Garland, RBG-Barrett -- all breaking in favor of the GOP was probably closer to 50-1.

Imagine flipping a coin, and six times in a row it came up heads.

Call it luck or politics, but it appears we’re now stuck with the most far-right Court since the late 1930s, if not the 1850s...one that said Black people couldn’t vote because of white supremacy.

Short of a nearly inconceivable impeachment of justices who obviously lied when testifying that Roe v. Wade was “settled law,” it appears likely that at least two of the six seats would have to become open in the next term or two, and under a Democratic President, to rebalance the Court.

Until then, this week’s Roberts Court was able to simply ignore the repeated racially hostile comments by Trump to pretend that his immigration decisions were not tainted by racism. (Speculation: anyone doubt that if Trump were recorded saying the “N-word”, Alito would have brushed that aside as, say, “locker room talk”?)

What do you think? Is this analysis merely ideological hindsight or is “luck” an infuriating though accurate conclusion? Are Democrats ready for the long haul of either Court reform or a changed lineup?