The challenge of a Supreme Court that isn’t supreme


As a lawyer, I have the greatest respect for the American court system. Our country is one of the few in the world whose courts are not used for political vendettas, as is the case in Russia. That system is manipulated by one man, Russian President Vladimir Putin, and there are countless cases in which he has punished his political enemies by using the judicial system.

There is no question that some judges appointed to our courts have philosophical or personal views that color their decisions. U.S. District Judge Aileen Cannon, who is hearing the case involving former President Donald Trump’s handling of classified documents, has appeared to favor him on a number of occasions. Some judicial observers believe Cannon will find ways to stop Trump from being brought to justice before November’s election.

Many judges, including those appointed during Trump’s tenure, have shut down multiple attempts to throw out the 2020 election results. Upward of 60 judges have overseen election fraud suits, and all of them have ruled against the team headed by former New York City Mayor Rudy Guliani. That gives me, and countless others, a degree of comfort.

Regrettably, that doesn’t apply to members of the U.S. Supreme Court, which of late has been dominated by a majority that is willing to bend its decisions to fit its philosophy. Our country has had some Supreme Court majorities that have approached most of their big cases with strong personal views, but in the end have chosen more moderate positions.

During my lifetime, different Supreme Courts have been known as the Warren Court, the Burger Court, the Rehnquist Court. They get those label based on who the chief justice is, and whether the court is in fact guided by him. In the case of the current court, Chief Justice John Roberts has been unable, in most big cases, to steer the court to positions that fit his philosophy.

Because this court is so strongly guided by its five ultra-conservative members, there is no doubt that the decisions it will make in some pending cases may have a strong impact on the November election. There are at least six cases yet to be decided that fit into that category. One, which will stir up the pro-choice movement, involves the legality of the Food and Drug Administration’s approval of the abortion drug mifepristone. Considering that more than half of the women in America who have abortions use pills, if that legalization is overturned, it will likely lead to nationwide protests.

Another case in that arena involves the legality of restraining orders that prohibit granting gun permits to people with a history of domestic violence. It is universally agreed that spouses should be protected from a spouse with a history of violent conduct. But this court is so wedded to protecting the Second Amendment that it’s likely that it could rule in favor of gun owners.

Another case involving guns is the challenge to an executive order by then President Trump that makes it illegal to add a “bump stock” to a gun that turns it into a machine gun. That order came about as the result of a mass killing at a Las Vegas concert. If you took a national poll on this issue, an overwhelmingly majority would express their opposition to the use of bump stocks. But this is another case in which the court could side with gun rights.

One of the biggest cases the Supremes will soon decide is whether a former president is immune from prosecution for an alleged crime he committed when he was in office. A federal court has written a lengthy opinion denying such immunity, but the Supreme Court has taken the case to put its own imprint on this issue. Some court followers have conjectured that it did so to prevent any prosecution of Trump before the election.

People unfamiliar with the courts often aren’t aware of how much mischief a court can create. But sadly, the current highest court in the land has shown that it is anything but a “supreme” court.

Jerry Kremer was an Assemblyman for 23 years, and chaired the Assembly’s Ways and Means Committee for 12 years. He now heads Empire Government Strategies, a business development and legislative strategy firm. Comments about this column?