A Rant on the Supreme Court
by Dave Gamrath
As an activist fighting for social justice for over three decades, the Supreme Court rulings this past month have left me feeling not just devastated, but also afraid. Very afraid.
What am I afraid of? Let’s look at what just happened.
Back in 2016, when Trump was running for President, he promised to only appoint conservative Supreme Court justices that would overturn Roe v. Wade. This, combined with Mitch McConnell’s willingness to discard Senate decorum to achieve Republican-controlled courts, resulted in Trump appointing three new justices. These three (Gorsuch, Cavanaugh and Coney-Barrett) joined the existing three conservative justices (Roberts, Alito and Thomas) to give conservatives a 6 to 3 majority on the Court. With last month’s rulings, these conservative six (let’s call them “Legal Cons” for short) have shown that they have learned well from Mitch McConnell, for they have discarded Supreme Court decorum in a fashion similar to what McConnell has done in the Senate.
Historically, the Supreme Court followed “stare decisis,” which is a legal principle that the Court will not flip-flop on previous major court decisions. The Court recognized and supported precedent, even if individual judges didn’t like a particular ruling. The Court strived to not been seen as political and partisan. Historically, when making changes, the Court believed in making changes incrementally, to promote social stability. With the Legal Cons, precedent, judicial restraint and stare decisis were tossed out the window. The Legal Cons seem proud of their partisanship, enamored by their power, and clearly plan on using this power going forward, likely for decades to come. Effectively, the Court has signaled the end of the federal government as we know it. The Legal Cons seem intent on cementing minoritarian rule for Republicans, for their views are consistently shown to be in the minority in America. In the majority opinion that overturns Roe v. Wade, they even wrote, “We cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work.” These Republican-appointed six justices (all appointed by Presidents that lost the popular vote) will remake America as they see fit. They already are.
So, what specifically have they done? So far…
Let’s start with their June 24, 2022 decision in Dobbs v. Jackson Women’s Health Organization, where they overturned abortion rights granted in Roe v Wade, tossing out 49 years of law and history, and ending a constitutional right Americans have had since 1973.
Abortion rights granted in Roe v. Wade were based on the 14th Amendment to the Constitution, which guaranteed all citizens “equal protection of the laws”. Last century, the Supreme Court used the 14th Amendment to protect the rights of minorities and women from state laws that threatened their health and safety or treated them as second-class citizens. It made sure that a minority of voters couldn’t strip rights from their neighbors. The 14th Amendment works to define our freedoms, including the ability to define what a family is, to marry who you love, to raise children as you see fit, to choose your own intimate relations, and effectively providing bodily autonomy and family autonomy. The Supreme Court just gutted these freedoms.
The Legal Cons claimed that since the word “abortion” is not specifically included in the Constitution, the Constitution therefore does not protect it. Strangely, the Constitution includes nothing on corporations being people, or that money is free speech, but the Legal Cons feverishly support these claims. The Legal Cons claimed abortion rights are not “deeply rooted in our history or tradition” (49 years is plainly not enough), and that this issue should be left to the states, effectively giving the states the right to do what they want to women’s bodies. Let’s be clear: this ruling is all about stripping women of their rights.
The states that have the most restrictive abortion laws also tend to be the states that have the weakest maternal health support to mothers-to-be, as well as for children. Although they work hard to protect the fetus, they care far less about rape victims, the poor and the disadvantaged. Their advice to poor women feeling at risk? Just get a gun. Or two. And carry it openly.
Which brings us to the second (pun intended – second amendment – get it?) horrible decision June 23 by the Legal Cons, in NY State Rifle & Pistol Association v. Bruen. In this decision, the Legal Cons did the proverbial flip-flop only one day removed from their anti-abortion ruling! For abortion, it’s up to the states to legislate. For guns, it’s the opposite: the Court must legislate.
The Legal Cons ruled that Americans have a right to carry handguns outside the home without a license for “self-defense” (for how can one be safe walking the streets in America without a gun?). What’s the historic precedent for this? It’s not the text of the Second Amendment, which states, “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.” That had to do with well-regulated militias. It wasn’t until the Court’s 2008 Heller decision that they determined, for the first time, that Americans in general had the right to bear firearms. So, precedent goes back a whopping 14 years! Now that’s historic! Abortion rights going back 49 years means nothing – no historic precedent whatsoever. This ruling shot down (another pun…get it?) New York State’s 100-year-old law restricting the concealed carrying of firearms (100 years is plainly not enough), and will likely make open-carry the law of the land in America.
This is an example of what’s making me afraid: the Legal Cons will use their power and whatever reasoning is necessary to get whatever result they want. Consistency means nothing. Look at the far-far right’s wish list and expect “legal” rulings to deliver those wishes – for decades to come.
The Court also issued two rulings towards removing the separation of church and state. On June 23, in Carson v. Makin, the Legal Cons invalidated a Maine tuition program, ruling that the state cannot bar religious schools from receiving public grants extended to other private schools, stating that the tuition program “promotes stricter separation of church and state” than the constitution requires, completely reversing precedent from last century. But wait! There’s more! With their decision on Kennedy v. Bremerton School District, the Legal Cons shot down restrictions on officials formally leading prayer sessions on public property, again overruling decades long precedent.
Now let’s turn to the environment. Even though scientists have been warning government officials for decades about the horrific impact from global warming, unless we take very meaningful measures to reduce carbon emissions, the US will continue to emit increasing amounts of carbon. Merchants of Doubt, well-funded by Big Oil, have been more successful than they ever imagined they could be at keeping America from taking any serious climate action. With America still somehow clinging to a global leadership position, when America does squat, we tell the rest of the world it’s ok to do squat. Anti-climate policies have been a cornerstone of the Republican platform for years.
With their June 30 ruling in West Virginia v. the Environmental Protection Agency, the Legal Cons reversed almost 100 years of jurisprudence by arguing that Congress cannot delegate authority on “major questions” to agencies in the executive branch (the Chevron doctrine). Chevron was based on the concept that there are some really complicated issues requiring action, and that since some of the best technical experts are employees at these executive branch agencies, and that Congress tends not to get much done, executive branch agencies can lead in making critical stuff happen.
No more! The Legal Cons rolled back the EPA’s ability to combat climate change by reducing power plant carbon emissions. Especially given the Senate’s filibuster rule, which basically ensures no action will be taken on most anything that matters, especially not climate change, this decision likely kills all hope that our federal government will take meaningful climate action. Of course, this is another thing that makes me afraid. But there’s more! The Legal Cons agreed to hear this case despite the fact that the rules being challenged had been abandoned! So why take the case at all? The Legal Cons saw this as an opportunity to make a point (or, more accurately, a new law) to hamstring federal regulation of business. Most of the regulatory bodies in our government are housed in the executive branch. Now these agencies can’t do their jobs, and America can look forward to decades of being a “regulation-free” country. This includes not only severely reducing environmental protections, but also reducing business regulations of all types.
Here's another irony: the Legal Cons pride themselves on being “originalists”, which means that they believe that the constitution must be interpreted based on the original understanding "at the time it was adopted". No rethinking the Constitution as time goes by and as things evolve. Except, of course, when it suits them to do so! What hypocrisy. In writing the dissent to this ruling, liberal justice Kagan pointed out this hypocrisy, stating that the Legal Cons are, in fact, inventing new doctrines to achieve the ends they wish. “The current Court is textualist only when being so suits it,” she wrote. “When that method would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get-out-of-text-free cards. Today, one of those broader goals makes itself clear: Prevent agencies from doing important work, even though that is what Congress directed.” This is just more proof that the Legal Cons will do whatever it takes to get the radical results that they want.
Anything else? Oh, yes, one other small item: American democracy. The Legal Cons stated that next year they will hear Moore v. Harper, a case about whether state legislatures alone have the power to set election rules, even if their laws violate state constitutions. They call this the “independent state legislatures doctrine.” This would be a dream come true for Trump proponents of The Big Lie. Gerrymandering would go wild, and voting restrictions on “undesirable” voters (those that lean Democrat) would continue to abound. This would basically cement Republicans in power in the 30 states Republican legislatures currently control. But it gets worse (of course). The Big Lie proponents have been working feverishly to dominate the voting apparatus in their states, trying not only to control who gets to count the vote, but also who gets to declare the winning candidate (vote count be damned). If this ruling goes their way, the state legislature gets to appoint the electors in Presidential races, i.e., they pick the winner, even if the Republican candidate did not get the most votes. Bye, bye democracy!!!
For months, revered conservative judge J. Michael Luttig has been sounding the alarm that this is a blueprint for Republicans to steal the 2024 election, writing “Trump and the Republicans can only be stopped from stealing the 2024 election at this point if the Supreme Court rejects the independent state legislature doctrine (thus allowing state court enforcement of state constitutional limitations on legislatively enacted election rules and elector appointments) and Congress amends the Electoral Count Act to constrain Congress' own power to reject state electoral votes and decide the presidency.”
We’ll see how they rule, but, yep, you guess it: I’m afraid.
So, what’s the forecast of where things are likely to go from here?
Expect Republicans to continue with a full-court press to make abortion illegal throughout America. Period. They won’t stop at anything short of this. They will do their best to make traveling from an anti-abortion state to an abortion state not only onerous, but also illegal.
Key privacy rights rulings of the past decades are now at risk of being overturned. Sure, some of the Legal Cons are saying, basically, “naw, that won’t happen”, but Legal Con Clarence Thomas came right out and wrote that, basically, he’s coming for Obergefell (the case that recognizes same-sex marriages), Lawrence (the case that made same-sex sexual activity legal), as well as Griswold (the case that legalized the use of birth control in one’s marriage). It’s ironic that Thomas, who is a Black man married to a white woman, somehow forgot to mention that he was also going after Loving, the case that ended the prohibition of interracial marriages. But Republican politicians have stated, basically that “hell yea, we’re coming after Loving too!” It’s painfully obvious that the rulings in all of these cases are no more “deeply rooted in the history and tradition” than abortion rights are, thus these freedoms that Americans have become so very accustomed to are very much at risk. And, yes, this makes me afraid. Might my marriage to a brown woman be declared illegal? Wow.
As for guns, any meaningful gun safety laws are shot. This makes me afraid, but not afraid enough to go out and purchase a bunch of guns.
Regarding religion, look for more Legal Con rulings that will cement America as, without question, a Christian nation, with all non-Christians formally recognized as second-class citizens (if not terrorists). Many years ago, I married into a Muslim family, so on a personal level, this too makes me very afraid.
As for climate change and other environmental issues? Look for America to revert back to a deregulatory state, similar to the 1960s, when our rivers were catching fire. Don’t look for any meaningful climate action from the federal government. Meaningful action will need to come from us, the grassroots.
Finally, look for a non-stop push by Republicans, supported by their Legal Con heroes, to do anything and everything they can to permanently cement their minority rule. When you are in the minority, and insist on being in power, by definition, minority rule is your friend. Democracy is not.
So, what can we do to fight back?
I’ve been in this fight for over three decades, and one of my greatest frustrations has been the seemingly impossible task of getting people to pay attention and get involved. The axiom of “it’s too big of a problem so I’m just going to ignore it and get on with making money and enjoying my life” is, IMHO, the primary reason we are in this current position. Too many liberal and moderate Americans just didn’t give enough of a shit to get involved. Conservatives, on the other hand, driven by religion, lack of economic hope, and a fear of losing power from no longer being in the racial majority, have gotten in line to help promote their causes. Quite candidly, they did this in plain sight, and liberals and moderates, “led” by an ineffective political party known as the Democrats, quietly ignored them.
Here's the thing: the Democratic Party may be ineffective, disorganized and in a state of chaos, but when you live in a two-party political system, the Dems are the only horse we’ve got. There’s no other political party to organize a counterattack. If you are outraged at what’s happening and what will continue to happen, you need to get HIGHLY INVOLVED with your local Democrats. It’s actually far easier doing so than moving to a foreign country. Remember, the party is made up of members. You can be a member, work hard, and even become a leader. That’s what’s really needed in the Democrats right now, strong leadership. And that means YOU! Wait, you say! Aren’t Democrats basically useless? Think about it: if a few more folks had voted for Hillary Clinton in 2016, Trump would never have been able to appoint three Supreme Court justices, and we wouldn’t be in this position today. Do not doubt it: as long as we remain a democracy, elections matter.
So, what could Dems do? Actions are already being taken. In Connecticut, Dems passed legislation to protect abortion care providers from being sued in other states. Maine has already worked to insulate itself from the religious school funding case this week. Dems need to be just as aggressive as the Republicans. We can’t just sit around and complain that “blue states should pass a law” – we need to figure out how to do it and make it happen.
At the federal level, if Dems win elections, we can expand the number of justices in the Supreme Court. But what may be even more important is legally challenging the power that the Supreme Court has claimed for itself. The Constitution does not give the Supreme Court this power, and it can be taken away. But a Democratic majority is needed to lead this effort.
Dems need to not only work hard on getting the vote out, but also on protecting the counting of votes as well as ensuring the candidate with the most votes gets seated into office. This work needs to be done by volunteers and needs leadership. And that means YOU.
If the Dems can win at least 50 senate seats with senators that will agree to kill the filibuster (they are currently two short, since Manchin and Sinema refuse to do this), and if Dems can keep control of the House, Dems can pass laws reestablishing abortion rights, protecting interracial marriages, contraception and gay rights/marriage. Dems need to run on this message. The vast majority of Americans support these rights.
And there are hundreds of other organizations out there that are engaged in this fight for our rights and freedoms. Search them out. Join them. Work with them. Bring them your talent, time and treasure.
Although many of us are horrified right now, we must remember that this is a LONG GAME. We need to incrementally work to win local elections, both near where we live as well as local elections around the country. It’s these local elections that set the stage for what happens at the federal level.
Now is the time for YOU to do what I am trying to do: get out there and talk to people! Recruit them to the causes of freedom and democracy! Don’t be bashful. Keeping quiet and waiting to see what happens has clearly not worked out. Recruit those in your circle, and a few outside it. YOU can do this!
Even in this shitstorm, we must remain determined and optimistic. Howard Zinn wrote “If we see only the worst, it destroys our capacity to do something.” Optimism promotes action. And, boy, do we need action.
Two strange words give me some optimism: Donald Trump. WTF? Think about it. In basically one year on the campaign trail in 2016, Trump coopted the Republican party and created a populist movement that has led us to this dreadful place. If a dimwit like Trump can quickly revamp a political party, surely it can happen again. The Democratic Party can likewise be co-opted into action. We don’t need a self-absorbed reality TV star to lead it. Rather, once again, what we need are enraged activists taking charge, people like YOU.
And that’s it. At the end of the day, whether we see the end of our freedoms, and the end of American democracy, it’s up to YOU. Meaning all of us. Which includes YOU. I guess what makes me most afraid is that even in this time of crisis, people won’t get involved. YOU won’t get involved. Please prove me wrong.
I need a beer. Dave
