by MARK GABRISH CONLAN
Copyright © 2022 by Mark Gabrish Conlan for
How do you tame a rogue Supreme Court?
That question has been on the minds of politically aware Americans whose politics are left of Atilla the Hun’s since late last June, when the current six-member radical-Right majority on the Supreme Court issued a trifecta of rulings severely restricting the rights of people, including women seeking control of their own bodies and people concerned about gun violence and the environment.
In quick succession, the current Court majority overruled Roe v. Wade, the landmark decision that for nearly 50 years had restricted the federal and state governments from telling women what they could do with their own bodies, including how to deal with an unwanted pregnancy. They also overturned as unconstitutional a century-old law in the state of New York that banned the carrying of concealed weapons in most circumstances. And they severely restricted the power of the U.S. Environmental Protection Agency (EPA) to curb emissions from coal-fired power plants.
Tne U.S. Supreme Court began its new term on October 3, and the list of cases it has chosen to hear this year indicates that the current Court majority fully intends to continue their ideological Right-wing crusade. Already on October 4 the Court heard arguments on an appeal from the state of Alabama defending a Congressional district map that crowds as many Black voters as possible into a single Congressional district, thus virtually ensuring that six of Alabama’s seven Congressional seats will be held by white people even though more than one-fourth of Alabama’s population is African-American.
Such shenanigans were supposed to be illegal under the Voting Rights Act of 1965, one of the two principal achievements the Black civil-rights movement wpn in Congress in the 1960’s. But the Supreme Court has already started rolling back the Voting Rights Act starting in 2013, when in Shelby County v. Holder it struck down the law’s “pre-clearance” requirement that certain states with a history of discriminating against African-Aemricans and other voters of color submit any changes in their election laws to the U.S. Department of Justice before they could take effect.
Having already given the green light to states with histories of voter suppression to start doing it again, the Court further weakened the Voting Rights Act in Brnovich v. Democratic National Committee (2021) by declaring that restrictions on mail ballots and other means of early voting did not violate the Act. They also ruled that plaintiffs seeking relief under the Voting Rights Act had to prove not only that the state actions they were challenging had the effect of weakening the political powers of communities of color, but that they were intended to do so.
Critics fear that the only reason the Court majority agreed to take the current voting rights case, Merrill v. Milligan, as a vehicle to abolish what’s left of the Voting Rights Act or so severely limit its application that it becomes useless. They already signaled their intention to do that when they granted a stay of the lower court’s decision so Alabama coldc use the racially drawn districts in this year’s midterms – the same sort of signal they sent in September 2021 when they refused toenjoin the Texas anti-abortion law, SB 8, which was clearly in violation of Roe v. Wade – which they already intended to reverse.
The Court is also hearing Louisiana v. United States (https://www.npr.org/2022/10/18/1126287827/redistricting-supreme-court-louisiana-black-african-american). It’s a voting-rights case in which the state of Louisiana is defending a Congressional redistricting map that leaves Louisiana Blacks with only one majority district out of seven, even though African-Americans are one-third of Louisiana’s population. The state legislature which drew that map sought to evade the Voting Rights Act by rewriting the definition of “Black.” They said that any person who identified on the U.S. Census as both “Black” and another sort of person of color would no longer be considered “Black” fur purposes of the Voting Rights Act. Already, in late June, the Court issued an emergency order allowing the new discriminatory map to be used in the 2022 election, a probable signal that the six-member radical-Right Court majority intends to deal yet another blow to the Voting Rights Act by allowing the Louisiana legislature to get away with their racist shenanigans.
And this isn’t the only racially charged case the Court is hearing this year. On October 31 they heard a case that could totally abolish race as a factor in college admissions, an issue an earlier Supreme Court supposedly settled by allowing universities to consider race as one factor in admissions. The Court also is considering a case called Sackett v. Environmental Protection Agency which attempts to do to the Clean Water Act what West Virginia v. EPA did to the Clean Air Act: to block the EPA from using the Clean Water Act to stop or slow down water pollution.
And it’s also considering a case brought by Colorado Web designer Lorie Smith, who claims that Colorado’s law protecting Queer people against discrimination in public accommodations violates her right to free speech by preventing her from discriminating against same-sex couples. The court already ruled in 2018 that a Colorado baker called Masterpiece Cakeshop couldn’t be required to bake a wedding cake for a same-sex couple on the ground that doing so would violate their freedom of religion.
In Octrober 2020 two Justices, Clarence Thomas and Samuel Alito, went on record as saying the decision of the Court to strike down laws banning same-sex marriage violated the religious freedom of Americans who believe such marriages are immoral (https://www.cnn.com/2020/10/05/politics/thomas-alito-obergefell-same-sex-marriage-analysis/index.html). They didn’t explain why they thought the beliefs of people religiously opposed to same-sex marriage shoupd prevail over the beliefs of those in favor of marriage equality.
One more case the Supreme Court heard in early October is National Pork Producers Council v. Ross (https://www.reuters.com/markets/commodities/pork-industry-takes-fight-over-california-law-us-supreme-court-2022-10-10/ and https://www.eenews.net/articles/scotus-probes-calif-pork-fights-far-reaching-consequences/), This is a challenge to Proposition 12, passed by California voters in 2018, which sets standards for raising pigs and chickens and bars the sale in California of meat and eggs from anima;s that aren’t given enough space to move around in according to the law.
The National Pork Producers Council, American Farm Bureau Foundation and – interestingly – the Biden administration are saying a state cannot regulate business more stringently than the federal government does under the clause in the Constitution giving Congress the power “to regulate commerce between the states.” A group of 16 U.S. Senators, including Dianne Feinstein and Alex Padilla, filed an amicus curiae brief in defense of the law.
According to the 16 Senators’ brief, a ruling for the pork industry "could allow large, multi-state corporations to evade numerous state laws that focus on harms to their constituents, including those addressing wildlife trafficking, climate change, renewable energy, stolen property trafficking and labor abuses."
“Independent State Legislature” = End to Democracy
But by far the most dangerous case the new U.S. Supreme Court majority is considering, Moore v. Harper, involves a North Carolina redistricting case in which the state legislature has invoked something called the “independent state legislature theory.” For years there’s been a pitched battle between the North Carolina legislature, dominated by Republicans, and the state’s courts.
The North Carolina legislature keeps drawing district maps designed to keep Republicans in power for the next 10 years or longer. North Carolina’s courts, including the state’s supreme court, keep throwing out those maps on the ground that they violate the state constitution’s anti-discrimination protections.
Now the current legislature in North Carolina is asking the U.S. Supreme Court to put their redistricting maps beyond judicial challenge at either the federal or state level. They’re doing this by invoking an arcane idea called the “independent state legislature theory,” which holds that Article I, section 4 of the Constitution – “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof” – grants state legislatures absolute, unreviewable powers to determine just about everything relating to elections.
Now, if there’s one thing that’s pretty consistent throughout the U.S. Constitution, it’s that the people who wrote it weren’t keen on the idea of giving anybody unfettered, unreviewable power. They created an elaborate system of checks and balances precisely because they thought that the way to keep government from being inimical or corrupt was to disperse authority, so that even if one branch of government went off the rails, the other two branches would be able to stop them.
This has made it maddeningly difficult for any American government or political party, even when supported by a large majority of the people, to make sweeping changes in the way we are governed. But if the Supreme Court enshrines the “independent state legislature theory” into Constitutional law, the consequences would be so catastrophic it would essentially spell the end of the American republic and its likely replacement by the Republicans as a one-party dictatorship.
The Republicans already have gained an outsized importance on American politics by their shrewd manipulation of the anti-democratic features built into the U.S. Constitution. In order to make any law, it has to be passed not only by the House of Representatives but by the Senate, and the Constitution gives each state two Senators regardless of the size of its population. We select the President not by direct popular vote, but by an “Electoral College” composed of electors representing the total number of House and Senate members from each state – which extends the outsized influence of small states in the process. And until 1913, state legislatures, not state voters, chose the Senators.
Other anti-democratic features of the U.S. government were added later. The whole business of the U.S. Supreme Court having the power to overturn laws by declaring themselves unconstitutional isn’t in the Constitution. It was unilaterally declared by the second Chief Justice, John Marshall, in an 1803 case called Marbury v. Madison in which he wrote, “It is the express purpose of the judicial department to say what the law is.”
The filibuster that has done so much to hamstring the U.S. government and given the Senate the reputation as “the place good ideas go to die” came about through an historical accident, In 1837, realizing that the people who wrote the Senate rules had failed to include a mechanism for closing debate, a Senator who wanted to kill a bill that had majority support decided to talk it to death. In 1975, a supposed “reform” made the filibuster more deadly by removing the requirement that Senators wishing to filibuster actually had to rise to the floor and debate. Instead, they could jist fill out a form invoking the filibuster – which has led to the insane 60=vote requirement for the Senate to do just about anything.
Now the Supreme Court is seriously considering putting the power of state legislatures to regulate elections beyond any review – not by federal courts and not by state courts either. As Ethan Herenstein and Brian Palmer of Politico.com reported on September 16 (https://www.politico.com/news/magazine/2022/09/15/fraudulent-document-supreme-court-bid-election-law-00056810), it was based on a well-known fake document produced in 1818 by Charles Pinckney, a delegate to the Constitutional Convention of 1787 who responded to an appeal for historical records from the Convention by supplying what he claimed was a draft constitution he had submitted to the Convention 31 years earlier,
According to Herenstein and Palmer, James Madison – who had more to do with creating the Constitution than any other individual – was around when Pinckney submitted his alleged draft, and he didn’t like it. Madison, according to Herenstein and Paumer, “was ‘perfectly confident’ that it was ‘not the draft originally presented to the convention by Mr. Pinckney.’ Some of Pinckney’s text, Madison observed, was impossibly similar to the final text of the U.S. Constitution, which was painstakingly debated over the course of months. There was no way Pinckney could have anticipated those passages verbatim.
“In addition,” Herenstein and Palmer wrote, “Madison was quick to point out, many provisions were diametrically opposed to Pinckney’s well-known views. Most telling, the draft proposed direct election of federal representatives, whereas Pinckney had loudly insisted that state legislatures choose them. Madison included a detailed refutation of Pinckney’s document along with the rest of his copious notes from the Convention. It was the genteel, 19th-century equivalent of calling B.S.”
Nonetheless, the North Carolina legislature is relying on this discredited document to make their case that the framers of the Constitution intended to give state legislatures unfettered power over all elections. And if the current Right-wing Supreme Court majority declares the “independent state legislature theory” the law of the land, it would allow Republican-controlled legislatures in key swing states simply to nullify the results of a Presidential election and appoint their own electors regardless of how their voters actually voted – just as Donald Trump and his legal advisors, including Rudy Giuliani and John Eastman, were asking them to do in 2020 after Joe Biden defeated Trump for re-election.
In fact,the “independent state legislature theory,” coupled with the current Court majority’s evisceration of the Voting Rights Act, amount to a recipe for future one-party rule in the U.S. Republicans already dominate state governments. According to Ballotpedia (https://ballotpedia.org/State_government_trifectas), there are 23 states where Republicans control the governorship and both houses of the legislature, 13 where Democrats do and 14 which are split – and under the “independent state legislature theory,” a Republican-dominated legislature could determine the outcome of an election even if the state’s governor was a Democrat, since he or she would have no power to stop them.
The scenario the “independent state legislature theory” would set up would essentially spell the end of representative democracy in the U.S. A state legislature with a Republican majority would be able to gerrymander its districts to maintain power forever because they would have so diluted the votes of people opposed to them that elections would be meaningless. They would have unlimited power to suppress the votes of communities opposed to them by making sure people not likely to vote Republican couldn’t vote at all. And even if they lost an election, they’d have the power to set aside the results and declare themselves the winners.
All these are things Republicans are already doing in states they control, but so far their powers have been limited by the sheer weight of American tradition and what shards of the Voting Rights Act and other laws aimed at protecting the people’s right to vote the current Court majority has allowed to remain in place. But if the Right-wing Supreme Court majority enshrines the “independent state legislature theory” into constitutional law, the result will be a perpetual one-party Republican dictatorship in the U.S.
If you want an example of what the “independent state legislature theory” will look like in practice, just take a look at Wisconsin. According to an article Ari Berman posted to the Mother Jones magazine’s Web site October 25 (https://www.motherjones.com/politics/2022/10/wisconsin-2022-midterms-gerrymandering-redistricting-evers-michels/), Wisconsin’s Republican majority in the state legislature has so totally gerrymandered its districts that the Democrats would have to win the statewide vote by 12 percent just to eke out a bare majority in the Wisconsin Assembly. Wisconsin Republicans are likely to win a two-thirds super-majority in the legislature this year, so even if voters re-elect the state’s Democratic governor, Tony Evers, he will be powerless to stop the Republican legislative agenda.
Wisconsin got to this stage at least in part thanks to the U.S. Supreme Court and its current radical-Right majority. According to Berman, the current legislative maps are the product of an ongoing battle between the Wisconsin legislature and Governor Evers over redistricting. Evers won a narrow majority in the Wisconsin Supreme Court for his map, but the U.S. Supreme Court overruled it in an unsigned per curiam opinion last March (https://www.supremecourt.gov/opinions/21pdf/21a471_097c.pdf).
The court accused Evers’ map of “embracing just the sort of uncritical majority-minority district maximization that we have expressly rejected.” And Evers’ Republican opponent in the November 8 election, Tim Michels, told a private meeting of donors in late October that if he wins, Republicans “will never lose another election” in the state (https://www.theguardian.com/us-news/2022/nov/02/wisconsin-republican-gubernatorial-candidate-tim-michels).
Court’s Current Radical-Right Majority Is Not “Conservative”!
One thing that particularly irks me in media coverage of the current U.S. Supreme Court is the repeated descriptions of its radical-Right majority as “conservative.” Whatever these people are, they are not “conservative” by any stretch of the imagination. It is the exact opposite of true conservatism to upend a nearly 50-year-old precedent, as the Court has done in Dobbs v. Jackson Women’s Health Organization – the decision that reversed Roe v. Wade and ended the constitutional right of women to control their own bodies – simply because the current Justices would have decided it differently.
It’s even more against any reasonable definition of “conservatism” for the Court to throw out a 100-year-old law from New York state restricting the ability of individuals to carry concealed weapons in public. "Because the State of New York issues public-carry licenses only when an applicant demonstrates a special need for self-defense, we conclude that the State's licensing regime violates the Constitution," Justice Clarence Thomas wrote for the court's 6-3 majority. "Only if a firearm regulation is consistent with this Nation's historical tradition may a court conclude that the individual's conduct falls outside the Second Amendment's unqualified command," Thomas added.
The idea that the Second Amendment gives an “unqualified command” to American governments at all levels to do almost nothing to interfere with an individual’s right to own whatever sort of gun he or she wants flies in the face of the Second Amendment itself. The amendment reads, in full, “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.” In 1939, in a case called United States v. Miller, the Supreme Court ruled that the U.S. government had every right to regulate guns (in this case, sawed-off shotguns) as long as they couldn’t conceivably be used by “a well regulated Militia.”
That was how the American judiciary in general read the Second Amendment until 2008, when in a case called United States v. Heller the Court found for the first time that the Second Amendment conferred on every American the right to own just about any sort of weapon he or she pleased. The majority opinion in Heller was written by the late Justice Antonin Scalia, who did what he was constantly accusing liberal judges of doing: he rewrote the Constitution not in terms of what it actually said but what he, Antonin Scalia, thought it should say.
So, based on a 14-year-old case that upended over a century of legal precedent as well as the plain meaning of the Second Amendment itself, Justice Clarence Thomas read the Second Amendment as giving U.S. governments at all levels an “unqualified command” to allow individuals to own almost any sort of firearm and carry it wherever they want. Whatever you call that, it ain’t “conservative.” It’s why I’ve long wanted to write an article which I would call, “America Needs More Conservatives” – with a subheading, “And Fewer Radical-Right Revolutionaries Posing as ‘Conservatives.’”
Conservatism as a modern-day political philosophy derives from the writings of late 18th-century British scholar, philosopher and politician Edmund Burke. Burke supported the American Revolution – a gutsy thing to do given that his was the country the Americans were rebelling against – but was totally horrified by the French Revolution. And one of the things that horrified him the most about the French Revolution was how the revolutionaries sought to rewrite the most basic rules of society, down to changing the calendar as well as the system of weights and measures.
Burke argued that, even if certain social institutions are not as efficient as they would be if we were deciding them from ground zero, people have grown comfortable with them. They are used to them in ways they won’t be if some supposedly “better” system is imposed upon them, especially by government force. In Burkean terms, the Affordable Care Act – so-called “Obamacare” – was a profoundly conservative program, not only because it was created by a conservative think tank (the Heritage Foundation, which later disowned it) but because it attempted to expand Americans’ access to health care by building on the existing patchwork of private, employer-based insurance and public assistance rather than junking it and starting over with single-payer or another sweeping change.
I remember hearing over a decade ago a broadcast by Right-wing talk-show host and former Mayor of San Diego Roger Hedgecock in which he reported the results of a then-recent poll that showed public confidence in virtually all American institutions – the government (at all levels), the media, public education, the church – at all-time lows. Hedgecock was so gleeful at these results he practically seemed to be having an orgasm on the air. My thought was a true Burkean conservative would have been horrified at results like that and seen them as portending a complete moral breakdown and collapse of such a society.
The other interesting thing about Thomas’s opinion in the New York gun case is his reference to “this Nation's historical tradition.” This was also a factor in Samuel Alito’s opinion striking down Roe v. Wade, in which he said that the provision of the Ninth Amendment of the Constitution that says, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” applies only to those rights “consistent with our Nation’s history and traditions.”
The problem with that is that the current Court manority’s understanding of “our Nation’s history and traditions” seems flash-frozen at the end of the 19th century. This was a time when the Supreme Court had ruled in the 1896 case of Plessy v. Ferguson that racial segregation was legitimate as ong as the facilities for white and Black people were “equal” (which they never were). Women not only had yet won the right to vote but they had no property rights or legal existence outside their families or their husbands. In California it was legal to rape your wife until, get this, 1977.
Queer people were either ignored or reviled, and people habitually carried guns through the streets and often fired them at random. If you don’t believe me, check out the 1914 movie Tillie’s Punctured Romance, in which Tillie (Marie Dressler) responds to the news that she’s been disinherited by bringing guns to her house party and firing them at her guests – who respond by fleeing but don’t in any way seem shocked that their hostess is shooting at them.
Maybe some members of America’s extreme radical Right think of these as the “good old days” to which we should want to return. I don’t, and I don’t think many thoughtful conservatives do, either. The current Supreme Court wants to take us back to a new Dark Age in which, as a previous (1857) Supreme Court declared in Dred Scott v. Sandford, “the Black man has no rights the white man is obliged to respect.” Under the current Court majority’s rules, America would become a cesspool in which every time you left your home, you would be threatened with violence and quite likely not come back alive. And 10-year-old girls victimized by rape would be forced to give birth to their rapist’s child – and without any help from the government once that child was born.
That is the radical Right’s agenda for this country, and it’s time to strip the false façade of “conservatism” from the radical-Right revolutionaries who dominate the current U.S. Supreme Court and call them out as the amoral monsters they are.
The Matrix of Stare Decisis
The United States Supreme Court has an enormous power to determine what the rest of the government may or may not do, and one of the ways it has held on to that power (which is, as I noted above, not specifically given it by the Constitution) is through a judicial philosophy called stare decisis. The phrase has its roots in the British common law, and its principle is that courts should almost always decide cases based on the way they have decided similar cases before
Stare decisis is the basis of the law’s obsession with precedents. Individual lawyers arguing a case before virtually any court, from the lowest traffic court to the Supreme Court, will look through their lawbooks for previous cases that support their positions. Often arguments in appellate courts become duels of precedents, as each side tries to cite previous cases in their favor and the other side tries to knock down those arguments and cite other precedents more favorable to them.
Through stare decisis, the American courts in general and the Supreme Court in particular have created a comforting illusion. Though the Supreme Court is appointed by elected politicians – its members are nominated by Presidents and approved by the Senate – thanks to stare decisis, the Court creates a comforting illusion that it’s not a political body. It has persuaded millions of Americans in generation after generation that its decisions are based on immutable legal principles, and therefore are not to be questioned by us mere mortals.
It’s true that sometimes Supreme Court Justices have chafed against the restrictions of stare decisis. The late Robert Jackson, who was not only a Supreme Court Justice but one of the judges at the Nuremberg trials of the leading Nazis after World War II, said stare decisis turned the common law into “a system of living fossils.” But few Supreme Courts in our history have mounted so wholesale an attack on stare decisis and the principle of precedent as the current one with its six-member radical-Right revolutionary majority.
Stare decisis can be compared to the Matrix in the Wachowski siblings’ movies. Like the Matrix, stare decisis is a comforting illusion that the courts in general and the Supreme Court in particular maintains to keep us from realizing the truth: that the Supreme Court is a highly political (and politicized) institution, and it is not as walled off from the conflicts between the executive and legislative branches as it likes to pretend to be.
Just as the rest of the current Republican Party is running roughshod over the Constitution and its protections of voters’ rights in the name of “defending the Constitution” – up to and including staging a violent coup attempt on January 6, 2021 at the U.S. Capitol to keep Donald Trump in power after he lost his bid for re-election – so the current radical-Right Supreme Court majority is running roughshod over the principle of stare decisis even while pretending to abide by it.
This has led to some interesting public clashes between the sitting Justices in speeches to various legal groups this summer, as reported by veteran Supreme Court reporterNina Totenberg on the National Public Radio Web site. https://www.npr.org/2022/10/03/1126041958/supreme-court-new-term. "Decisions have always been subject to intense criticism, and that is entirely appropriate," Chief Justice John Roberts told a legal conference in Chicago, "but lately, the criticism is phrased in terms of ... the legitimacy of the court." Roberts called that "a mistake.”
Quoting John Marshall’s famous remark that it is the duty of the courts in general and the Supreme Court in particular to say what the law is, Roberts added, "[T]hat role doesn’t change simply because people disagree with this opinion or that opinion. … You don't want the political branches telling you what the law is, and you don't want public opinion to be the guide of what the appropriate decision is."
That drew an unusual rebuke from associate justice Elena Kagan, one of the three hapless, impotent “liberal” justices still left on the Court. In appearances at Northwestern and Salve Regina Universities, Kagan said this summer that stare decisis is a "foundation stone of law," a doctrine of stability that "tells people they can rely on the law." But, Kagan told her Northwestern audience, if "all of a sudden everything is up for grabs, all of a sudden very fundamental principles of law are being overthrown ... then people have a right to say, 'You know, what's going on there? That doesn't seem very law-like.'"
At Salve Regina University in Rhode Island: Kagan said, "The court shouldn't be wandering around just inserting itself into every hot-button issue in America, and it especially shouldn't be doing that in a way that reflects one set of political views over another." Unfortunately, that’s exactly what the current radical-Right Supreme Court majority is doing.
Seeing themselves as ideological warriors o a crusade to exorcize a broad range of rights that were expanded by previous Courts, especially the Warren Court of the 1950’s and 1960’s and the Burger Court of the 1970’s that handed down Roe v. Wade in the first place. As New Yorker writer Corey Robin explained in a July 9 profile of the Court’s ideological leader, Clarence Thomas (https://www.newyorker.com/news/daily-comment/the-self-fulfilling-prophecies-of-clarence-thomas), the radical-Right super-majority on the current Supreme Court in general and Thomas in particular sees the expansion of civil rights and social equality as a horrendous mistake that has gravely weakened society as a whole.
Robin’s article comes as close as anyone else has to explaining the fundamental contradiction that has existed within America’s Right since Ronald Reagan and Jerry Falwell cut their deal for the Moral Majority’s support of Reagan over Jimmy Carter in the 1980 election. This coalition has lasted ever since and won the support of millions of Americans despite its internal inconsistency. It calls for “limited government” when it comes to the economy, opposing any laws aimed at protecting workers,. Consumers and the environment against corporate economic and political power, and at the same time it calls for an expansive “Big Government” to micromanage individuals’ personal lives, especially their sex lives. Robin wrote:
"In a speech before the Federalist Society and the Manhattan Institute which he gave in his second year on the Court, Thomas linked a broad reading of the due-process clause, with its ever-expanding list of ‘unenumerated’ rights, to a liberal ‘rights revolution’ that has undermined traditional authority and generated a culture of permissiveness and passivity. That revolution, which began with the New Deal and peaked in the nineteen-sixties, established the welfare state, weakened criminal law, and promulgated sexual freedom. The result has been personal dissipation and widespread disorder. Workers lose their incentive to labor. Men abandon wives and children. Criminals roam and rule the streets.
“Today, the Left ties itself into knots over whether it should defend sexual minorities, dismantle the carceral state, or fight for social democracy. For Thomas, [opposing] these are three fronts of the same war. To reverse the downward spiral of social decadence and patriarchal decay, conservatives [sic] must undo the liberal culture of rights, starting with the unenumerated rights of substantive due process."
So What Can Be Done to Stop the Rogue Court?
Not much, I’m afraid. I’m writing this phase of the article just days before November 8, the official date of the 2022 midterm elections. As I wrote in my last Zenger’s blog post, the likely outcome of the midterms is a “red tsunami” that will put the Republican Party in control of both houses of Congress and likely set the stage for a Republican return to the Presidency in 2024 – either via Donald Trump or someone much like him, like governors Ron DeSantis of Florida or Greg Abbott of Texas.
With inflation, immigration and crime emerging as the key issues on which Americans are basing their votes – all of which favor Republicans despite precious few indications that they can do any better at managing them than the Democrats – millions of Americans are apparently deciding that reproductive freedom and democracy itself are luxuries they can do without in the hopes of cheaper gas and food prices.
Even if the midterms don’t go as badly for the Democrats as seems likely now, there is still precious little ordinary Americans can do to tame a rogue Supreme Court. The Constitution guarantees justices lifetime tenure. The only way they can be removed is through impeachment, and the two-thirds Senate majority needed to convict anyone in an impeachment trial has proved an insuperable bar to remove impeached Presidents, let alone a Supreme Court justice.
Clarence Thomas is currently flouting norms of judicial conduct by ruling on cases involving himself and his wife, a Right-wing activist who worked with Donald Trump’s last White House chief of staff to overturn the 2020 election. He can thumb his nose at all criticism, secure that nothing can be done to stop him. And in July 2022 Samuel Alito, author of the Dobbs decision that overturned Roe v. Wade, crowed about it in a speech he gave in Rome, Italy at a religious liberty conference sponsored by the Vatican (https://www.msnbc.com/opinion/msnbc-opinion/alito-mocks-outrage-over-abortion-decision-religious-freedom-speech-n1297608).
Alito claimed credit for the end of Boris Johnson’s tenure as prime minister of Great Britain, saying Johnson had “paid the price” for publicly criticizing Dobbs. “I had the honor this term of writing, I think, the only Supreme Court decision in the history of that institution that has been lambasted by a whole string of foreign leaders — who felt perfectly fine commenting on American law,” Alito said, drawing laughs from the crowd. Alito also said that Dobbs “has a very important impact on religious liberty because it’s very hard to convince people that religious liberty is worth defending if they don’t think religion is a good thing that deserves protection.”
At least twice before in our history has a U.S. Supreme Court majority run so far afoul of public opinion, and the outcomes haven’t been good. The first time was in the 1850’s, when the Court issued Dred Scott v. Sandford, which essentially made slavery legal nationwide. A Righti-wing Court majority set out to end the national debate on slavery by freezing the South’s “peculiar institution” into Constiutional law forever. Abraham Lincoln was explicitly criticizing the Dred Scott decision when he gave his famous “House Divided” speech kicking off his campaign for the U.S. Senate on June 18, 1858 (https://www.abrahamlincolnonline.org/lincoln/speeches/house.htm).
“I believe this government cannot endure, permanently half slave and half free,” Lincoln said. “I do not expect the Union to be dissolved -- I do not expect the house to fall -- but I do expect it will cease to be divided. It will become all one thing or all the other. Either the opponents of slavery will arrest the further spread of it, and place it where the public mind shall rest in the belief that it is in the course of ultimate extinction; or its advocates will push it forward, till it shall become alike lawful in all the States, old as well as new -- North as well as South.” The good news is the Dred Scott decision was ultimately overruled. The bad news was it took the carnage of the Civil War to do it.
The other time in U.S. history when the Supreme Court set itself far against public opinion and the popular will was in the 1930’s. President Franklin Roosevelt and huge Democratic majorities in Congress passed fundamental reforms to the American economy and political system aimed at pulling the nation out of the Great Depression – and a radical Right-wing majority on the Supreme Court kept striking them down as unconstitutional.
Roosevelt got so disgusted with the antics of the Supreme Court that he used the political capital of his landslide re-election in 1936 to push a bill to expand the Court. The Constitution doesn’t specify the number of Justices, but throughout our entire history it’s been either seven or nine – and the last expansion from seven to nine was made in 1862 by Lincoln and a Republican Congress to dilute the power of the reactionary pro-slavery justices who had handed down the Dred Scott decision.
Unfortunately, Roosevelt got exactly nowhere with his plan. Republicans and Right-wing Democrats denounced it as “court-packing” and gave FDR his first major political defeat. The crisis passed partly because the swing justice, Owen Roberts, started voting to uphold instead of nullify New Deal legislation – it was referred to in the 1930’s as “the switch in time that saved nine” – and partly because Roosevelt’s presidency lasted so long he was able through sheer attrition to replace the aging cadre of justices with progressives.
In a depressing colloquy between MS-NBC host Rachel Maddow and legal scholar Dahlia Lithwick on October 3, the start date of the Supreme Court’s current term, Lithwick said point-blank that addressing the question of a rogue Supreme Court requires major constitutional changes. “The Senate has to be reformed,” Lithwick said. “The Electoral College has to be reformed. We have to think about massive reforms to the Supreme Court.”
Alas, the kinds of sweeping changes Lithwick is calling for are made impossible by the Constitution itself and the sheer weight of American tradition. Even when the Democrats had at least nominal control of the Presidency and both houses of Congress – which is almost certain to end after November 8, 2022 – they didn’t take up any of the measures that could have been taken under the Constitution to rein in the power of a rogue Supreme Court.
Just as the only way to reform the Senate under the Constitution (aside from abolishing the filibuster, which as I noted above is not provided for ini the Constitution) would be to add more states – which is why Senate Republican leader Mitch McConnell, in a speech just before the 2020 Republican convention, made a point of declaring his unalterable opposition to making the District of Columbia a state (because it would elect two Democratic Senators) – the only way to undo the successful court-packing by Donald Trump and Mitch McConnell would be to add more justices.
And if Franklin Roosevelt wasn’t able to do that, even coming off a landslide re-election victory in 1936 with broad popular support and huge partisan majorities in Congress of which today’s Democratic Presidents can only dream, Joe Biden certainly wasn’t going to be able to do it. Biden took office with just razor-thin majorities in both houses of Congress and two Senate DINO’s (Democrats in name only), Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, who double-handedly sabotaged virtually all of Biden’s agenda by refusing to compromise on scrapping or amending the filibuster.
The years 2020 to 2022 are going to go down in American history as the time in which the Democratic Party squandered its last opportunity to remain competitive in an era in which, thanks largely to the radical-Right super-majority on the current Supreme Court and its gradual destruction of the 1965 Voting Rights Act, Republicans will dominate our politics now and for the foreseeable future. America’s future may quite likely be like Russia’s, China’s or Iran’s present: an anti-democratic government suppressing what few attempts at resistance there are by the use of overwhelming force.
