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.

Après This, le Déluge

Nobody knows how bad it’s going to get. Paul Waldman of The Washington Post warns that it may get much, much worse:

As we grapple with the Supreme Court’s apparent and imminent decision that would overturn Roe v. Wade, Democrats are warning that this portends an attack on many other rights guaranteed in prior decisions. The right to use birth control could go next, because the 1965 case that guaranteed it, Griswold v. Connecticut, was the foundation on which Roe was built. The conservatives could reverse Obergefell v. Hodges, the 2015 case that guaranteed marriage equality.

Heck, under the rationale Justice Samuel A. Alito Jr. used in his decision, even Loving v. Virginia, which struck down state laws outlawing interracial marriage, would be vulnerable.

To these warnings, many conservatives have replied: “Oh, come on. You liberals are exaggerating. The Supreme Court isn’t going to do that, and Republican state legislatures aren’t going to go nuts and outlaw contraception. Just calm down.”

But the truth is that, if anything, liberals aren’t panicking enough. The future of any particular right might be hard to predict, but we can say for sure that both the Supreme Court’s conservative supermajority and Republican politicians are feeling unrestrained, unlimited in their ambitions, with the kind of freedom only a complete lack of accountability can provide.

Do you doubt? Let’s take a look around:

  • There is a push within the antiabortion movement — which will need a new focus once Roe is overturned — to go after contraception. Sen. Marsha Blackburn (R-Tenn.) recently denounced the ruling in Griswold, and she’s not alone. Republican states are already moving to limit access to birth control in various ways, and this is a clear target of many in the movement. They will likely begin by targeting Plan B, then IUDs and the pill.
  • A Louisiana House committee approved a bill this week that defines a fetus as “a human being from the moment of fertilization,” making both a woman who has an abortion and her doctor guilty of participating in homicide. Some GOP states have already outlawed receiving medication for abortions through the mail; more will follow, and do you think they won’t be arresting women who get them? Even under existing law, prosecutors in red states have often investigated and arrested women who have had miscarriages; under the new abortion regime such arrests are almost certain to accelerate.
  • Republican legislators are exploring ways to stop women from having abortions not only in their own states but in other states, as well.
  • Though Alito’s draft ruling included a passage denying it is a prelude to nullifying other rights, many legal experts read it to suggest that Obergefell [the marriage equality case] could be the next precedent to be reversed; it was a 5-to-4 decision of a court far less conservative than this one, which believes that stare decisis is for losers. Alito, Clarence Thomas, and John G. Roberts Jr. all dissented angrily from that decision; they now have three more conservatives who could join in reversing it on a nearly identical rationale to the one they will use to overturn Roe.
  • Texas Gov. Greg Abbott (R) said Wednesday that the state plans to “resurrect” a 1982 ruling that required states to provide public education to all children, including those of undocumented immigrants. Many conservative activists are open about their intention to completely replace American public education with private school vouchers and home schooling.

There is simply no doubt that conservatives — both on the Supreme Court and in elected offices — are feeling unleashed in a way they have not been in modern history. To any suggestion of “They’d never go that far,” you have to ask, why not?

Obviously, Republicans (except for a few extremists) don’t actually want to overturn Loving so states can make interracial marriage illegal, even if some might muse about it. But most of them would like to overturn Obergefell, so the chances that they’ll at least try are far higher.

If you believe political constraint might stay their hand, you’re probably wrong.

You might argue that Republicans know Americans are perfectly content with marriage equality by now. But most Americans are happy with Roe, and look what’s happening there.

Over and over, Republicans have learned that there are seldom political consequences for the choices they make. Yes, they lose elections when circumstances turn against them — there’s an economic collapse, or they lose in midterms like the president’s party usually does, or they put up some terrible candidates. But as a rule, the voters do not hold them to account for their extremism.

We’ve seen it before: Republicans do something shocking, liberals say, “History will not be kind to you,” and Republicans respond, “Who cares?” In the end, all that matters is power and your willingness to use it.

They learned it after Bush v. Gore, when the Supreme Court simply handed George W. Bush the presidency. It didn’t matter: Everyone moved on, Bush got reelected, and he put a couple more justices on the court.

They learned it when not just then-Majority Leader Mitch McConnell but all Senate Republicans joined in refusing to allow President Barack Obama to fill a Supreme Court vacancy in 2016. Liberals got mad, but what happened? Republicans got their supermajority. Power wins, and the public’s attention span is short.

The conservative movement has many more ambitions — and a Supreme Court eager to fulfill them. So, no, liberals are not being hyperbolic when they warn about the retrograde right-wing revolution that could follow the end of Roe. The right is not hiding its plans. All you have to do is believe them.

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