Whereof One Can Speak 🇺🇦 🇺🇦 🇺🇦

Nothing special, one post at a time since 2012

What Is To Be Done?

That’s the title of an 1863 novel by Nikolai Chernyshevsky. It’s about a woman who escapes the control of her family and finds economic independence. (Lenin borrowed the title for a pamphlet about a few “burning questions” in 1902.)

It’s the phrase that came to mind in reaction to the Supreme Court Six’s effort to make America fit their reactionary politics.

Here are two aspects of the situation that make it remarkable (there are others).

One is that the six reactionary Republicans are trying to justify their bizarre rulings by referring to made-up legal theories. As right-wing judges have done for years, they cite “originalism” and “textualism”, the ideas that the Court should pay close attention to the Constitution’s precise text and the specific intentions of its authors. It just so happens that the text and the perceived intentions always support whatever justices like Alito and Thomas prefer to do. Justice Kagan pointed this out in her dissent to the EPA case:

The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the “major questions doctrine” magically appear as get-out-of-text-free cards.

The “major questions doctrine” is a classic conservative invention. Paul Waldman explains that one:

[It] holds that agencies can’t regulate in ways that aren’t explicitly laid out in statutes if what they’re doing is too consequential — into precedent. Yet in practice, everyone knows that the major questions doctrine, being vague and versatile, will be used only to strike down agency regulations the conservatives don’t like; regulations from Republican administrations they find pleasing will be left intact.

Another right-wing invention concerns “independent” state legislatures. Mr. Waldman continues:

Lest anyone think, on the final day of its term, that the court wasn’t champing at the bit to give Republicans even more power, it announced it will be hearing the case of Moore v. Harper. That’s a challenge to the North Carolina Supreme Court’s striking down of an absurdly gerrymandered congressional map on the grounds that it violated the state constitution.

Conservatives are eager to use this case to enshrine the “independent state legislature theory,” which would effectively say that legislatures alone can set rules for how federal elections are carried out, making state constitutions, governors’ vetoes and the decisions of state courts essentially irrelevant.

Why are conservatives attracted to this idea? … The reason is simple: At this moment in history, there are multiple states where Republicans have successfully gerrymandered themselves into control of a state legislature despite the fact that the electorate of that state is closely divided.

In these states — including Wisconsin, North Carolina, Pennsylvania and Georgia — … the legislature remains firmly in Republican hands no matter what. So if the legislature alone has the power to write election rules [no matter what the state’s constitution or courts say], they can [help] Republicans win.

The Supreme Court Six’s decision-making is all about the Republican agenda. It’s all about power.

So how did we get here? That brings up another remarkable aspect of our situation. Trump toady and US senator Lindsey Graham is outraged that Senate Democrats might want to do something about this renegade Court (like changing the filibuster rule, which Republicans did in 2017 in order to easily install Supreme Court justices of their choosing). Graham says it took 50 years for Republicans to skew the Court and now Democrats want to clean up the mess in a matter of weeks.

Josh Marshall responded to Graham:

This is true. It took them 50 years. But it’s also the first time in history a party plotted to take over the Courts like this. There were 3 Democratic appointees on the Court when it decided Roe. And one of those was one of the two dissenters. The Roe Court was dominated by Eisenhower and mostly Nixon appointees. Yes, lots of elections [over 50 years]. But the first time in American history any party or movement tried to do such a thing. And when the election thing stopped working, they started stealing seats.

The best you can say about the Republican capture of the Courts is that they stole it fair and square, to paraphrase Theodore Roosevelt. When it wasn’t stealing seats, it was winning elections with the fewest votes, i.e., exploiting the minoritarian quirks of the political system.

… What Graham is complaining about here is that Democrats want to put the whole thing before the peoples representatives with an up or down vote, i.e. majority rule. Graham is saying that’s not fair. The minority gets to say you can’t vote on it….

Having captured the courts through unprecedented political means, Republicans like Graham now want to dive headlong onto the fainting couch when the other side wants to repair the damage by political means. And unlike the crafty efforts to steal seats or exploit the minoritarian quirks of the Constitution, the remedy is the most foundational of democratic remedies, passing laws by majority vote. Whether Democrats will be able to pull this off will come down to the results of the November election.

Republicans like Graham are so deep in the world of partisan scheming and theft that a majority vote looks like the ultimate travesty. The simple reality is that the corrupt Court majority is the fruit of Republican corruption and the answer is majority rule.

But what can be done? I want to blog about that next time.

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