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Tag Archives: Supreme Court

What Is To Be Done?

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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.

Any Republican President Would Have Been Dangerous

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Probably not as dangerous as T____, because that representative of that party was eager to become a dictator. But anyone who was bad enough to win the Republican nomination would have followed Federalist Society recommendations and chosen Supreme Court ideologues just as dangerous as the ones T____ picked. Consider what Alito, Thomas and sometimes Roberts have been able to accomplish in company with Gorsuch, Kavanaugh and Coney Barrett.

They allowed states to force pregnant women to give birth, while at the same time denying that Americans have a right to privacy, thus setting the stage to overturn other precedents, including the right to use contraception and the right to marry who we want.

They decided states don’t have the right to regulate guns, making it easier for gun fetishists to stroll around our neighborhoods with dangerous weapons more easily than residents of Wild West towns like Deadwood and Tombstone could do 150 years ago.

They weakened Miranda rights, decided tribal lands aren’t truly sovereign, allowed public school teachers to lead their students in prayer and decreed that the Occupational Safety and Health Administration couldn’t protect workers from COVID-19.

This morning they announced that the Environmental Protection Agency is limited in its ability to follow the Clean Air Act and regulate greenhouse gases, which will probably lead to other Executive Branch agencies not being able to do their jobs.

They’ve allowed Republican legislatures to devise congressional districts that will insure Republicans are elected and have decided to hear a case later this year that may give state legislatures absolute control over elections, to the point where legislators, not voters, can decide won an election, ignoring state constitutions that allow judges to review their decisions.

This is what we get for electing Republicans to high office. Any Republican president would have given us a Supreme Court majority just as bad.

Today, President Biden said he supports changing the Senate’s filibuster rule to reinstate the Roe v. Wade decision that prohibited forced birth. Senators don’t need his permission to fix or abandon the filibuster. They don’t need his permission to protect voting rights and exercise reasonable control over a renegade Supreme Court.

If Democrats fail to add senators or lose the House of Representatives in the next election, the Court will remain free to remake America. Those are the stakes in November.

The Reactionary Politics of Resentment

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How did the Republican Party get so extreme? Paul Krugman of The New York Times asks the question and offers an answer — or rather a historical parallel:

… The Republican turn toward extremism began during the 1990s. Many people have forgotten the political craziness of the Clinton years — the witch hunts and wild conspiracy theories (Hillary murdered Vince Foster!), the attempts to blackmail Bill Clinton into policy concessions by shutting down the government, and more. And all of this was happening during what were widely regarded as good years, with most Americans believing that the country was on the right track.

It’s a puzzle. I’ve been spending a lot of time lately looking for historical precursors — cases in which right-wing extremism rose even in the face of peace and prosperity. And I think I’ve found one: the rise of the Ku Klux Klan in the 1920s.

It’s important to realize that while this organization took the name of the post-Civil War group, it was actually a new movement — a white nationalist movement to be sure, but far more widely accepted, and less of a pure terrorist organization [than the 19th century Klan]. And it reached the height of its power — it effectively controlled several states — amid peace and an economic boom.

What was this new K.K.K. about? I’ve been reading Linda Gordon’s The Second Coming of the K.K.K.: The Ku Klux Klan of the 1920s and the American Political Tradition, which portrays a “politics of resentment” driven by the backlash of white, rural and small-town Americans against a changing nation. The K.K.K. hated immigrants and “urban elites”; it was characterized by “suspicion of science” and “a larger anti-intellectualism.” Sound familiar?

… Republican extremism clearly draws much of its energy from the same sources.

And because G.O.P. extremism is fed by resentment against the very things that, as I see it, truly make America great — our diversity, our tolerance for difference — it cannot be appeased or compromised with. It can only be defeated.

Adam Serwer of The Atlantic says overturning Roe v. Wade is “just the beginning of the Court’s mission to reshape all of American society according to conservative demands”, taking advantage of their office to address the resentments and supposed grievances of the Republican Party’s most dedicated supporters: 

Justice Samuel Alito’s opinion in Dobbs v. Jackson [announces] that when it comes to rights “not mentioned in the Constitution,” only those “deeply rooted in this Nation’s history and tradition” are protected. If you’re asking yourself who decides which rights can be so described, you’re on the right track….

As the three Democratic-appointed justices note in their Dobbs dissent, more constitutional rights now are on the chopping block. “Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid-19th century are insecure,” the dissenters wrote. “Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.” It seems to be the latter: In his concurrence, Justice Clarence Thomas writes that precedents establishing access to contraception, legalizing same-sex marriage, and striking down anti-sodomy laws should be “reconsidered”….

The Supreme Court has become an institution whose primary role is to force a right-wing vision of American society on the rest of the country. The conservative majority …  takes whatever stances define right-wing cultural and political identity at a given moment and asserts them as essential aspects of American law since the founding, and therefore obligatory…. The dictates of the Constitution retrospectively shift with whatever Fox News happens to be furious about. Legal outcomes preferred by today’s American right conveniently turn out to be what the Founding Fathers wanted all along.

The 6–3 majority has removed any appetite for caution or restraint, and the justices’ lifetime appointments mean they will never have to face an angry electorate that could deprive them of their power. It has also rendered their approach to the law lazy, clumsy, and malicious…

Many of the Court’s recent decisions, even before Dobbs, have demonstrated this. In the case over the Biden administration’s vaccine mandate for employers, the conservative justices disregarded the explicit text of a federal statute allowing the government to set emergency regulations governing “toxic substances or agents” in the workplace, and employed soft anti-vax arguments that had only become prominent in conservative media since the start of the coronavirus pandemic. As part of its rationale, the majority wrote that “in its half century of existence,” the Occupational Safety and Health Administration “has never before adopted a broad public health regulation of this kind,” which is true, because during that period there had not been a global pandemic that killed more than 1 million Americans.

In their decision earlier this week overturning restrictions on concealed carry of firearms in New York, the right-wing justices ignored historical examples of firearm regulations in order to argue that any such regulations—not just those in New York—were presumptively unconstitutional. The decision was a significant escalation in the Court’s gun-rights jurisprudence from the 2008 Heller decision, which found an individual constitutional right to possess a firearm. In the most recent ruling, Thomas wrote that only those restrictions “consistent with this nation’s historical tradition of firearm regulation” are constitutional, but he did so ignoring, as the writer Saul Cornell points out, a centuries-long history of closely regulating arms in densely populated areas. That record is irrelevant. The restrictions deemed consistent with tradition will be whatever the current right-wing consensus happens to be.

Unquote.

Yesterday was more of the same. A federal judge had written a 157-page decision ordering Louisiana’s Republican legislature to change a proposed congressional map that she said violates what’s left of the Voting Rights Act, because, although Louisiana’s population is one-third Black, the map would insure that five out of six congressional districts elect Republicans. Her decision was upheld by an appeals court. Over the objections of the three Democrats on the Supreme Court, and without offering any explanation, the Republican majority overruled the judge and the appeals court. That means the map will be used for November’s elections. The Republican National Committee couldn’t have asked for more.

Why the Court Has Gone Rogue and Ideas on How to Fix It

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Five justices nominated by Republican presidents (and two nominated by Democrats) passed Roe v. Wade in 1973. Four justices nominated by Republicans (and one nominated by a Democrat) upheld Roe v. Wade with some revisions in 1992.

That didn’t happen this week. David Roberts (of the Volts newsletter) helps explain how the Supreme Court got filled up with right-wing fanatics:

If you read about the birth of the Federalist Society, there’s a kind of theme in the background that’s worth elevating. Conservatives’ problem over the years is that they would nominate judges & then be “betrayed” as judges drifted left (or just moderate). Souter, Kennedy, Blackmun etc.

Conservatives have lots of ways to explain this to themselves. Being exposed to liberals corrupts the bodily fluids! Etc. But the most most sensible & obvious explanation is that decent people, once they survey the evidence & arguments, come out in a decent/compassionate/liberal place.

Now, noticing that the smart, decent people they nominated kept coming to compassionate/moderate conclusions, they did NOT conclude, “gosh, maybe we should be more compassionate/moderate, since that’s where good-faith study of the evidence seems to lead!”

Instead, they decided they needed a cult-like organization where they could create hyper-ideological zealots, people so committed to reactionary conclusions that NO amount of exposure to evidence or simple humanity could ever change their minds: thus, Federalist Society.

Thus we have the striking situation we get today: liberals looking for judges can pull them from anywhere. But conservatives looking for judges can ONLY find them in this creepy billionaire-funded hothouse fringe cult full of ditto-brained mediocrities.

It’s really a great illustration that if you want someone truly, consistently reactionary, you need to find a particular dysfunctional personality type that can selectively ignore evidence, ignore nuance & context, ignore simple humanity & human need. You need a zealot.

That’s why the conservatives on SCOTUS are, in addition to being so horrible on the law, just kind of weird & creepy — intellectually mediocre but hyper-prickly & vain. They were forged in the Federalist Society laboratory. That does not produce normal, healthy people.

Unquote.

Jamelle Bouie of The New York Times has some ideas about fixing the Court:

The Supreme Court does not exist above the constitutional system.

It can shape the constitutional order, it can say what the Constitution means, but it cannot shield itself from the power of the other branches. The Supreme Court can be checked and the Supreme Court can be balanced.

It is tempting, in the immediate wake of the court’s ruling in Dobbs v. Jackson Women’s Health, to say that there’s nothing to be done about the reactionary majority on the court. But that’s just not true. The Constitution provides a number of paths by which Congress can restrain and discipline a rogue court.

It can impeach and remove justices. It can increase or decrease the size of the court itself (at its inception, the Supreme Court had only six members). It can strip the court of its jurisdiction over certain issues or it can weaken its power of judicial review by requiring a supermajority of justices to sign off on any decision that overturns a law. Congress can also rebuke the court with legislation that simply cancels the decision in question.

In the face of a reckless, reactionary and power-hungry court, Congress has options. The problem is politics. Despite the arrogance of the current Supreme Court — despite its almost total lack of democratic legitimacy — there is little to no appetite within the Democratic Party for a fight over the nature of the court and its place in our constitutional system. For many Democrats, President Roosevelt’s attempt to expand the size of the court is less a triumph than a cautionary tale — a testament to the limits of presidential leadership and presidential power.

But Roosevelt did eventually get a Supreme Court that allowed most of the New Deal to stand. The threat worked. The court was humbled.

It will take time to build the kind of power and consensus needed to make significant changes to the court. But even the work of amassing that power and putting that consensus together can stand as a credible threat to a Supreme Court that has acted, under conservative control, as if it stands above the constitutional system, unaccountable to anyone other than itself.

The power to check the Supreme Court is there, in the Constitution. The task now is to seize it.

Unquote.

One way to begin is for anybody who had trouble voting for Barack Obama, Hillary Clinton or Joe Biden in a general election to recognize that the Democratic Party, lame as it often is, is the only institution that stands between us and living in an anti-democratic, Christianity-centered, climate crisis-denying, anti-woman, anti-gay, reactionary dystopia.

We also need to exert pressure on the aged leaders of the party to face reality. This isn’t 1991 anymore.

Use what’s left of our democracy or lose it.

Requiem for the Supreme Court

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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.