ISLE AU HAUT, Maine—I drink coffee in the morning on a round, ornate oak table that once belonged to Harlan Fiske Stone, a U.S. Supreme Court justice from 1925 to 1946 and the chief justice for the last five of those years. Stone and his family spent their summers on this windswept, remote island six miles off the coast of Maine.
Stone, a Republican and close friend of Calvin Coolidge and Herbert Hoover, embodied a lost era in American politics. His brand of conservatism, grounded in the belief that the law is designed to protect the weak from the powerful, bears no resemblance to that of the self-proclaimed “strict constitutionalists” in the Federalist Society who have accumulated tremendous power in the judiciary. The Federalist Society, at the behest of President Trump, is in charge of vetting the 108 candidates for the federal judgeships that will be filled by the administration. The newest justice, Trump appointee Neil Gorsuch, comes out of the Federalist Society, as did Justices Clarence Thomas, John Roberts and Samuel Alito. The self-identified “liberals” in the judiciary, while progressive on social issues such as abortion and affirmative action, serve corporate power as assiduously as the right-wing ideologues of the Federalist Society. The Alliance for Justice points out that 85 percent of President Barack Obama’s judicial nominees—280, or a third of the federal judiciary—had either been corporate attorneys or government prosecutors. Those who came out of corporate law firms accounted for 71 percent of the nominees, with only 4 percent coming from public interest groups and the same percentage having been attorneys who represented workers in labor disputes.
Stone repeatedly warned that unchecked corporate power would mean corporate tyranny and the death of democracy. He was joined in that thinking by Louis D. Brandeis, his fellow justice and ally on the court, who stated, “We can have democracy in this country, or we can have great wealth concentrated in the hands of a few, but we can’t have both.”
The supposed clash between liberal and conservative judges is largely a fiction. The judiciary, despite the Federalist Society’s high-blown rhetoric about the sanctity of individual freedom, is a naked tool of corporate oppression. The most basic constitutional rights—privacy, fair trials and elections, habeas corpus, probable-cause requirements, due process and freedom from exploitation—have been erased for many, especially the 2.3 million people in our prisons, most having been put there without ever going to trial. Constitutionally protected statements, beliefs and associations are criminalized. Our judicial system, as Ralph Nader has pointed out, has legalized secret law, secret courts, secret evidence, secret budgets and secret prisons in the name of national security.