Category Archives: Politics

Requiem for the Supreme Court

Posted on by

That’s the title of an article by Linda Greenhouse, the longtime observer of the Supreme Court for the New York Times. She writes:

They did it because they could.

It was as simple as that.

Greenhouse is no firebrand, but she concludes that the Court’s reactionaries have destroyed “the legitimacy of the Court”.

The title of Jill Filipovic’s article for The Guardian is “It’s time to say it: the US supreme court has become an illegitimate institution”. She writes:

As of 24 June 2022, the US Supreme Court should officially be understood as an illegitimate institution – a tool of minority rule over the majority, and as part of a far-right ideological and authoritarian takeover that must be snuffed out if we want American democracy to survive.

On Friday, in Dobbs v Jackson Women’s Health, the supreme court overruled its nearly 50-year precedent of Roe v Wade, the 1973 case that legalized abortion nationwide. It is difficult to overstate just how devastating this is for pregnant people, for women as a class and for anyone with even a passing interest in individual freedom and equality.

But it’s also devastating for those of us who care quite a bit about American democratic traditions and the strength of our institutions. Because, with this ruling, the Supreme Court has just signaled its illegitimacy – and it throws much of the American project into question. Which means that Democrats and others who want to see America endure as a representative democracy need to act.

Of the nine justices sitting on the current court, five – all of them in the majority opinion that overturned Roe – were appointed by presidents who initially lost the popular vote; the three appointed by D____ T____ were confirmed by senators who represent a minority of Americans. A majority of this court, in other words, were not appointed by a process that is representative of the will of the American people.

Two were appointed via starkly undemocratic means, put in place by bad actors willing to change the rules to suit their needs. Neil Gorsuch only has his seat because Republicans, led by Mitch McConnell, blocked the ability of Barack Obama to nominate Merrick Garland – or anyone – to a supreme court seat, claiming that, because it was an election year, voters should get to decide.

And then D____ T____ appointed Amy Coney Barrett in a radically rushed and incomplete, incoherent process – in an election year.

And now, this court, stacked with far-right judges appointed via ignoble means, has stripped from American women the right to control our own bodies. They have summarily placed women into a novel category of person with fewer rights not just than other people, but than fertilized eggs…. After all, no one else is forced to donate their organs for the survival of another – not parents to their children, not the dead to the living. It is only fertilized eggs, embryos and fetuses that are newly entitled to this right to use another’s body and organs against that other’s will; it is only women and other people who can get pregnant who are now subject to these unparalleled, radical demands.

This raises a fundamental question: can a country be properly understood as a democracy – an entity in which government derives its power from the people – if it subjugates half of its population, putting them into a category of sub-person with fewer rights, freedoms and liberties?

The global trend suggests that the answer to that is no. A clear pattern has emerged in the past few decades: as countries democratize, they tend to liberalize women’s rights, and they expand abortion and other reproductive rights. Luckily for the women of the world, this is where a great many nations are moving.

But the reverse is also true: as a smaller number of countries move toward authoritarian governance, they constrict the rights of women, LGBT people and many minority groups. We have seen this in every country that has scaled back abortion rights, reproductive rights, and women’s rights more broadly in the past several years: Russia, Hungary, Poland, Nicaragua and the United States.

The same week that the Supreme Court issued its decision in Dobbs, the US House of Representatives has been holding hearings to inform the public about what actually happened during the attempted coup of 6 January 2021, and to ideally hold perpetrators, traitors and seditionists to account. We are only a year and a half past that disgraceful day, when an angry mob decided that they, an authoritarian, patriarchal, white supremacist minority, should rule – that any other outcome, no matter how free and fair the election, was illegitimate.

The Supreme Court decision stems from that same rotted root: the idea that a patriarchal minority should have nearly unlimited authority over the majority. The [reactionaries] on the court rightly understand that individual rights and women’s freedoms are incompatible with a system of broad male control over women and children, and a broader male monopoly on the public, political and economic spheres.

But that authoritarian vision is also incompatible with democracy.

And so Democrats now have a choice. They can give speeches and send fundraising emails. Or they can act: declare this court illegitimate. Demand its expansion. Abolish the filibuster. Treat this like the emergency it is, and make America a representative democracy.

We Need To Work Together the Way They Have

Posted on by

The Atlantic has an article called “America Is Growing Apart, Possibly For Good”. It includes a few statistics that show how states with Democratic and Republic political leaders are diverging. 

For example, blue states lead in such factors as life expectancy, gross domestic product per person, median household income, spending on elementary and secondary education, access to health insurance, minimum wage rates, union membership and abortion rights

Red states have more children in poverty, more working households in poverty, more gun deaths, and higher maternal and COVID mortality rates.

It’s also easier to vote in blue states.

David Roberts, who publishes the Volts newsletter on politics and clean energy, cited the Atlantic article and took it from there:

The differences between red & blue America are rising to the surface again after a late-20th century period of anomalous convergence. This isn’t about misunderstanding or incivility or “partisanship” — these are real, deep, fundamental differences in values.

Red America is well into a program of attempting, with a numerical minority, to impose its will & its values on the entire country. It is aided by innumerable biases in the US constitutional system & a wildly unrepresentative Supreme Court.

This is all obvious enough (one would hope) by now, but all I want to add — as someone who woke to find his wife quietly sobbing at her computer & is filled with helpless fury — is that Red America has also been helped over the last several decades by the fact that a large number of people in Blue America refuse to take its side — refuse to take sides at all. Instead go about trying to impress each other with how above-it-all they are, how they see the flaws in both sides, how they’re too clever to just fucking fight.

I’m talking about the self-righteous lefties pissing on “libs”, the self-righteous moderates pissing on the activists, the pundits wringing their hands over process questions & tone policing, the gerontocratic Democrats lost in fantasies of bipartisanship.

Survey the whole landscape & you find legions of people naturally situated on one side of this battle simply refusing to fight it, refusing even to clearly describe the battle lines, mostly out of vanity masquerading as nobility.

Pick your episode — start with the stolen 2000 election, start earlier, whatever — and you find Blue America divided, squabbling, irresolute, taken by surprise again & again, bizarrely resistant to simply identifying Red America for what it is & trying to stop it.

Over & over again, it’s “well, maybe they have a point” or “sure I disagree but let’s not fight” or “if you squint, they’re actually just worried about lost factory jobs” or “the problem is us, we need to spend more time in diners,” on & on ad nauseam.

This isn’t unique to America of course — history provides plenty of examples of the Blue parts of society failing to take the Red parts seriously until it’s too late, only to find themselves swept up in rising autocracy & violence. A certain German example comes to mind.

So let’s make it plain: Red America wants a fundamentalist Christian patriarchal society, with white Christian men on top, protected by the law but not bound by it, & everyone else bound but not protected, begging for leftovers.

If you don’t want that — if you want a multiethnic, multiracial democracy in which every citizen is ensured a basic level of material security & dignity — then it’s time to wrench your gaze away from the ways fellow Blue Americans annoy you (yes, yes, I do too) and fix your gaze on the enemy of rising fascism.

“I’m too clever to be on any team” is over. Nobody’s impressed. Join the fucking fight or get out of the way.

Unquote.

As if the gun ruling and the abortion ruling weren’t enough, the renegade Supreme Court majority is poised to issue a ruling that could fundamentally change the way the federal government functions:

The Supreme Court is expected to issue a decision in the coming days that could curtail the [Environmental Protection Agency’s] ability to drive down carbon emissions at power plants.

But it could go much further than that.

Legal experts are waiting to see if the ruling in West Virginia v. EPA begins to chip away at the ability of federal agencies — all of them, not just EPA — to write and enforce regulations.

It would foreshadow a power shift with profound consequences, not just for climate policy but virtually everything the executive branch does, from directing air traffic to protecting investors [to dealing with pandemics].

Sherilyn Ifill, former head of the NAACP Legal Defense Fund, explains what we need to do to get out of this “democratic freefall”:

We need radical structural reform to the functioning of all three branches of government in this country. Extremists have found the keys to gaming & hijacking the system – in Congress, the White House, & [the Supreme Court].

We have witnessed the vulnerability of the rules that govern each branch of government, which have been weaponized to herd us toward minority rule. Do we have the boldness & courage to reset the rules of government so that they serve democracy? Because that’s the project. It begins with power.

If we hope to remain a democracy then we need to be prepared to fundamentally reset key aspects of how we’ve allowed our government to function (or malfunction): Congress, the Presidency, the Supreme Court. Healthy democracies learn & adjust. Can we? I don’t see how we make it any other way.

It’s a huge job, but we can do it.

FWD44E-UsAA-5md

They’re Not Even Trying To Be Consistent. Or Honest. Or Historically Accurate.

Posted on by

Texas can regulate abortion but New Jersey can’t regulate guns.

And lying to Congress is a crime:

FUqDyf9UEAEUFNj

By the way (from historian J. M. Opal):

The 2nd Amendment, ratified in 1791, reads: “A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Responsible readings of this sentence note that it locates gun rights within the framework of militia service, not as an individual entitlement. By contrast, the 5th Amendment, ratified the same year, says that “No person” shall be denied due process.

Militias aside, there is also the “keep and bear” part of the 2nd Amendment to consider. In the founders’ era, to “keep” meant to own and possess something inside one’s home, while “bear arms” referred specifically to shouldering a musket or rifle in an army or militia.

Nowhere does the amendment declare or suggest a right to “go armed,” the term used in that era for carrying a weapon such as a pistol or dagger, either openly or in secret.

According to a Majority of the Supreme Court, the Earps and Doc Holliday Were the Bad Guys at the O.K. Corral

Posted on by

The Smithsonian Magazine offers a brief history lesson regarding gun control:

Marshall Virgil Earp, having deputized his brothers Wyatt and Morgan and his pal Doc Holliday, is having a gun control problem. Long-running tensions between the lawmen and a faction of cowboys … will come to a head over Tombstone’s gun law.

The laws of Tombstone at the time required visitors, upon entering town to disarm, either at a hotel or a lawman’s office. Residents of many famed cattle towns, such as Dodge City, Abilene, and Deadwood, had similar restrictions. But these cowboys had no intention of doing so as they strolled around town with Colt revolvers and Winchester rifles in plain sight…

When the Earps and Holliday met the cowboys on Fremont Street in the early afternoon, Virgil once again called on them to disarm. Nobody knows who fired first….

The “Old West” conjures up all sorts of imagery, but broadly, the term is used to evoke life … in small frontier towns – such as Tombstone, Deadwood, Dodge City, or Abilene, to name a few. One thing these cities had in common: strict gun control laws.

… Frontier towns by and large prohibited the “carrying of dangerous weapons of any type, concealed or otherwise, by persons other than law enforcement officers.” Most established towns that restricted weapons had few, if any, killings in a given year.

But Justice Clarence Thomas and his reactionary colleagues have their own view of history. From Talking Points Memo:

Thomas, writing for the majority, slapped down New York’s 100-year-old concealed carry licensing scheme Thursday on the grounds that it has no historical analogue. [Wait, doesn’t a law that’s 100 years old have some history on its side?]

Government interest — like protecting the safety of its citizens — is not enough to get around the all-expansive Second Amendment, he writes. To be legitimate, a gun regulation must have a historical cousin….

The notion is farcical on its face: there must be some 18th or 19th century law mirroring any modern-day gun regulation, even for weapons that the people of that time could not have imagined existing?

Justice Breyer, joined by Justices Sotomayor and Kagan, focuses his dissent on the patent ludicrousness of determining constitutional rights solely through historical precedents.

“Will the Court’s approach permit judges to reach the outcomes they prefer and then cloak those outcomes in the language of history?” he ponders, before sketching out his argument that his conservative colleagues have done just that.

Breyer lays out his own list of cases ranging from English precursors to early American laws all the way up through U.S. law in the 20th century. He lists cases that he argues support New York’s licensing scheme, many of which the conservative majority found some reason to reject: “too old,” “too recent,” “did not last long enough,” “applied to too few people,” “enacted for the wrong reasons,” “based on a constitutional rationale that is now impossible to identify,” “not sufficiently analogous,” Breyer reels off.

“At best, the numerous justifications that the Court finds for rejecting historical evidence give judges ample tools to pick their friends out of history’s crowd,” he writes….

[This decision] rings similar to Justice Samuel Alito’s draft opinion overturning abortion rights, which roots much of its argument in cases where abortion access was not protected in the country’s earliest days, and before. He asks [Americans] to unflinchingly accept that a constitutional right for women is only valid if it existed in a time when women were considered much less than full citizens.

To sum up, David Roberts on Twitter:

[The Supreme Court] is just going to keep doing stuff like this, worse & worse & worse….A tiny group of hyper-ideologues, forcing the rest of us to live medievally. That’s the current status quo trajectory….

“Neither the broad American public nor the center-left Democratic & media establishment understands or appreciates how [fucking] lunatic the right has gotten” is something I’ve been saying for two decades now. Was always true & still is.

A Few Immediate Reactions to Our Renegade Right-Wing Supreme Court’s Latest Dictate

Posted on by

From Mark Joseph Stern of Slate:

The Supreme Court’s fourth and final opinion of the day is in Bruen. In a 6–3 opinion, [Clarence] Thomas writes that New York’s strict limits on the concealed carry of firearms in public violates the Second Amendment.

Thomas’ opinion for the court dramatically expands the scope of the Second Amendment, blasting past ostensible restrictions laid out in Heller to establish a new test that will render many, many more gun control laws unconstitutional.

Before today, about 83 million people—about one in every four Americans—lived in a state that strictly limited concealed carry to those who had a heightened need for self-defense. Now, zero people live in such a state.

Thomas’ opinion for the court suggests that judges may NOT consider empirical evidence about the dangers posed by firearms when evaluating gun control laws. They may only ask whether a modern regulation has some analogue that is rooted in American history.

It’s difficult to overstate how devastating Thomas’ opinion is for gun control laws. This goes so, so far beyond concealed carry. The Supreme Court has effectively rendered gun restrictions presumptively unconstitutional. This is a revolution in Second Amendment law.

From Paul Waldman of The Washington Post:

Just getting started reading the gun decision, but every sentence so far makes clear what a joke and a scam “originalism” is. It continues to amaze me that anyone takes it seriously.

It’s just one assertion after another about how what people thought in 1790 is sacrosanct, except when it isn’t, but also here’s a novel way to think about 1790, but also that doesn’t matter either. It’s Calvinball as legal reasoning. The bad faith is just incredible.

[Note: Calvinball is a game invented by Calvin and Hobbes. Calvinball has no rules; the players make up their own rules as they go along.]

From yours truly and Matt from the UK:

Isn’t the entire problem here that you’re paralysed by your constitution, because it makes the question into exegesis of this supposedly infallible document, rather than actually analysing the problem and considering what to do about it?

Excellent point. We are paralyzed by a document that’s 230 years old and difficult to amend. But we are also paralyzed by right-wing judges (i.e. politicians) who use this vague notion of “originalism” (what the founders intended) to justify their contemporary political beliefs.

Yes, but then ‘originalism’ is possible because of the written form. Without one, my country has no equivalent paralysis. Plenty of our own constitutional problems, of course, but they don’t really result in regular spree killings in schools.

Yes, having a written constitution is clearly a constraint, being old & difficult to amend adds to that basic constraint, and having a Supreme Court with too much power & too many political hacks issuing dictates makes it even worse. (My answer assumes there can be degrees of paralysis.)