Tag Archives: Supreme Court

We Need To Work Together the Way They Have

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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.

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

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

And lying to Congress is a crime:

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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

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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

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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.)

The Fix Is In at the Supreme Court

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The draft opinion overturning Roe v. Wade is built on the assumption fetuses deserve special treatment while denying that assumption is being made. Liza Batkin explains with “Deceit in Plain Sight” for the New York Review of Books:  

Justice Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization would have you believe that the forthcoming decision to overrule Roe v. Wade is a display of great judicial restraint and independence. The draft is written in the language of solemn duty: we do not want to take away abortion rights, the conservative justices say, but it does not matter what we want. “We can only do our job,” Alito writes, “which is to interpret the law,” and to do so regardless of personal preferences or public opinion. In the draft decision’s logic, it was Roe that exercised “raw judicial power” and Dobbs that will remedy this error by returning “the issue of abortion to the people’s elected representatives.”

These claims to neutrality and humility should make you nauseous and irate. For one thing, they come in the middle of a decision that would wield extraordinary power, disposing with a nearly half-century-old fundamental right and reshaping the lives of millions of Americans. It’s also skin-crawling that these justices pretend to be concerned with empowering “the people” through their representatives after eroding the voting rights and electoral rules that would have allowed them to be adequately represented.

This performance of duty comes from justices who have routinely championed religious interests, were nominated by Republican presidents, and have all been affiliated with the Federalist Society, an organization dedicated to promoting conservative legal ideology. While only Justice Barrett has made explicit her personal opinions about abortion, stating in a co-authored law review article in 1998 that it is “always immoral,” the others are clearly not sacrificing their moral or political views for some higher charge.

You don’t need to look very far to see that the decision is a power grab cloaked in false modesty. The flaws in the majority’s central argument, that Roe was wrong to recognize a fundamental right to abortion, have been well-exposed elsewhere. But there is another deceit at play here: while claiming fidelity to the constitutional text, the majority’s draft is steeped in unexplained views about the importance of protecting fetuses at all stages of development—views that do not come from the Constitution but have traditionally been the purview of conservative and religious antiabortion advocates, and that are exactly the kind of personal belief the majority claims not to rely on.

The issue of abortion since Roe has been a battle between competing rights: a pregnant person’s right to control their reproductive choices, and the state’s interest in protecting the potential life of a fetus. To balance these different interests, the Court has historically tried to avoid opining on the legal or moral claims of fetuses, since the issue teems with conflicting beliefs. One way to establish when the state’s interest in protecting potential life becomes compelling, the Court recognized in Roe, was to determine “when life begins.” But after a brief survey of opposing religious, philosophical, and theological views, the Court steered clear of the mire and landed instead on the line of viability, which protects the right to abortion until the fetus can survive outside the womb.

If you take Alito at his word, the Dobbs majority has managed to sidestep this balancing act altogether. The draft decision proclaims that it is “not based on any view about when a State should regard prenatal life as having rights or legally cognizable interests” and says little about the source, strength, or timing of the state’s interest in potential fetal life.

But the majority has not avoided the issue. While claiming high-minded neutrality, they hint over and over at views about the importance of protecting fetal life. Early in the opinion, Alito explains that abortion “is fundamentally different” from all other liberty interests “because it destroys what [Roe and Casey] called ‘fetal life’ and what the law now before us describes as an ‘unborn human being.’” As a result, the right to abortion presents a distinct and “critical moral question.” The draft makes this point four times.

There is, however, no reason to assert that abortion at all stages of a pregnancy presents a unique and “critical moral question” unless one already gives weight and legitimacy to moral claims for the protection of fetuses at all stages of development, starting even as soon as conception. How else can we explain the draft opinion’s circular insistence that the right to abortion is different from other rights simply because it destroys fetuses, which merely defines what an abortion does?

The terms the draft uses, too, are revealing. In veering from the “potential life” invoked by Roe and Casey and repeating without qualification the language used by the Mississippi legislature along with antiabortion amicus briefs that defend the rights of the “unborn human being” and the “unborn child,” the majority divulges its allegiances. The footnotes tell the same story. In addition to citing a large array of prior dissenting opinions by conservative justices which have no legal authority, the draft draws on amicus briefs and articles dedicated to proving that fetuses are people. Alito’s majority does all of this while claiming that it “has neither the authority nor the expertise to adjudicate” disputes about “the status of the fetus” and citing language that courts must not “substitute their social and economic beliefs for the judgment of legislative bodies.”

While we rally to protect the right of pregnant people to make decisions about their bodies and futures (and desperately hope that this draft decision does not become law), we should recognize what’s going on here. The [reactionary] justices are preparing to abuse their power, cause grievous harm, and treat us—the “people” they pretend to empower—like fools, assuming we won’t notice the contradictions they’ve left in plain sight.