The Six Subversive Supremes
It is cathartic to draft most of this blog on July 4th — a citizen’s duty.
In light of the most devastating ruling by this renegade court, the one affecting the most of us — women — I am reminded of two current Facebook memes: “4th of July has been cancelled due to a shortage of independence. Sincerely, women.” And from the Borowitz Report: “Women declare themselves corporations to force Supreme Court to grant them rights as people.”
Earlier this year, I wrote three blogs in answer to a Facebook friend’s question, “How did we get here?”
This could have been aptly titled, “How We Got Here — Supreme Court Edition.” But so much has come down lately from these Supremes that it demands a more strident title.
They are subverting our institutions, voting rights and women’s rights, established law, and using the Constitution in ways never intended.
They ignore the practicalities or consequences of their rulings. They are condemning more of us to death.
There is nothing in the Constitution that delineates nine justices. The original number was six. There is nothing to keep us from changing the number, other than lack of political backbone. The only way to combat unabated power is with equal power.
The Supremes have bowed with absolute fealty to: guns, corporations, churches, sperm, and states (selectively, as in gutting Roe and the Voting Rights Act, and trampling states rights when it come to guns.)
Senator Chris Murphy tweeted that the court’s message to Congress was, “Get out of the way, we are in charge of the country now.”
Slate legal writer Dahlia Lithwick, not usually one to claim the sky is falling, calls the shocking rulings, “A checklist of whatever the conservative movement has ever wanted.”
Jon Stewart called this court the “Fox News of Justice.”
Naomi Klein wrote for The Intercept: “We have witnessed a shock-and-awe judicial coup.”
This court is another of the Roberts’ courts. Not much is remembered about his confirmation as chief justice, but during his confirmation hearing, Roberts was guilty of uttering drivel that would anesthetize the Senate Judiciary Committee. In the LA Times, Edward Lazarus writes this about a Roberts’ confirmation statement: “Judges don’t fashion the law through interpretation; they are merely impartial arbiters calling balls and strikes.” Lazarus goes on to say: “If so, it just so happens that for Roberts as ump, pretty much every legal argument that has a tendency to advance the interests of the Republican Party is a pitch right down the heart of the plate.”
The Roberts’ courts had already done plenty of damage, even prior to this term just ended.
· In 2011, in Citizens United vs. FEC, the Supreme Court asserted that corporations are people and removed reasonable campaign contribution limits, allowing a small group of wealthy donors and special interests to use dark money to influence elections. This opened the floodgates to dark money and unlimited political speeding, 24/7, 365 days a year.
· In 2013, in Shelby County v. Holder, a 5–4 majority mothballed the Voting Rights Act, Section 5, which required states with a history of racial discrimination in voting to get certification in advance (from the DOJ), or “pre-clearance,” that any election change they wanted to make would not be discriminatory. This led to multiple states passing restrictive voting laws that continue to this day. They are not done yet.
· While liberals were happy that Justice Roberts voted to uphold most of the Affordable Care Act, he also made it likely that thousands of people a year will literally die, because he re-wrote the Medicaid expansion of the Affordable Care Act to make it much easier for states to opt out. Twelve states still do not offer Medicaid, leaving 7 million non-elderly of us not covered.
· In Connick v. Thompson, the case involved an almost-certainly innocent man who spent 18 years in prison largely because the state illegally suppressed exculpatory evidence. According to a 5–4 decision written by Justice Clarence Thomas, however, nobody in the prosecutor’s office could be held accountable for this egregious, willful rights violation.
There may be other more harmful rulings, depending on what strikes a nerve.
Then came the Subversive Six and Trump’s excrement-fouling history with these three blockbusters.
Edwin Chemerinsky, dean of the Berkeley School of Law, in writing about the West Virginia vs. Environmental Protection Agency, wrote in the LA Times: “This court is profoundly pro-business, even in the face of clear threats to public health and safety.” In her dissent, Justice Kagan wrote: “The Court appoints itself — instead of Congress or the expert agency — the decision maker on climate policy. I cannot think of many things more frightening.” She added: “Whatever else this Court may know about, it does not have a clue about how to address climate change.”
The LA Times editorialized: “With the stakes so high, it’s devastating that the EPA will lose valuable regulatory tools to help slow climate change.”
This ruling will have a far-reaching affect on the authority of all federal agencies, not just the EPA.
The New York State Rifle and Pistol Assn. vs. Bruen case involved a law New York adopted in 1911 that prohibits concealed weapons in public without a permit. The 6–3 decision declared the New York law violated the 2nd Amendment. After more than 230 years of interpretation, apparently the 2nd Amendment contains the right to carry a concealed weapon outside the home, and any requirement to show need is unconstitutional.
In dissent Justice Breyer noted, “In 2020, 45,222 Americans were killed by firearms. Since the start of 2022, there have been 277 reported mass shootings — more than one per day.”
I ask this of the Supremes who ruled that open-carry without a permit is the law of the land, because of “defense?” I do not own a gun, never have, and never will. How am I supposed to feel safe from the ultra-right, angry white men, the drug-induced, the revenge seekers, and the mentally ill? What is next — mandating that all of us over eighteen must buy a gun? As I write this, seven more died in a 4th parade in a well-to-do Chicago suburb from a deranged, young, white male.
I waste my breath. They do not care. They do not think consequentially. They live in an ivory tower, protected by lifelong immunity.
In overturning Roe, women choosing an abortion will become prey, and hunted — in the 21st Century! In the rulings’ aftermath a new underground railroad system is under construction, one I wrote about in a recent blog, The Jane Crow Underground Railroad. The most bone-chilling case known-to-date involved a 10-year old rape victim. Ohio was forcing her to have the baby. She made it to Indiana and was treated. These horror stories and ensuing deaths will begin cascading like every drop in a waterfall. Supreme Court decisions have consequences.
Axios reports: “U.S. women already were likelier to die during or after pregnancy than anywhere else in the developed world.” Adding: “Arkansas, Kentucky, Alabama, Tennessee, Louisiana and Mississippi top the CDC’s list of states with the highest maternal mortality.” All red states.
If fifty years after Roe, we are told by Alito that “Roe was egregiously wrong from the start,” and if the Voting Rights Act has been gutted, one wonders how this court would rule, if given the chance, on Plessy vs. Ferguson (upheld the constitutionality of racial segregation under the “separate but equal” doctrine) or Brown vs. Board of Education?
While most of the damage, and threats to life, was done by the three rulings on guns, climate change and abortion, there were other rulings infringing our rights or our health.
The Court blocked a Biden administration’s effort to stop the spread of Covid-19 with a vaccination rule, directing employers with 100 or more workers to require vaccines or weekly testing. The Court ruled 6–3 that “Although Covid-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most.” It was not signed. Tell that to my Target-employed son who just came down with Covid-19, infected at work. Tell that to the current 100,000 new cases daily in the United States. Now, they are doctors.
They narrowed the gap between church and state with two rulings, (1) a 6–3 ruling where they allow public money to fund a private religious school, holding that not having the public pay for religious education when it pays for nonreligious education violated the Constitution. I am not a Constitutional scholar, but show me where it says that? (2) They allowed formal prayer on public school property. One wonders if they will allow Muslims to kneel towards Mecca each day? Justice Breyer noted in his dissent that the United States has 330 million people who ascribe to over 100 religions.
The LA Times noted that nearly 30% of U.S. adults don’t identify with any religion at all, and added these quotes in an editorial: “Ruling last week in favor of a football coach who insisted on praying on the field, the U.S. Supreme Court threw out 60 years of legal precedent.” And this: “Justice M. Gorsuch so badly twisted the reality of the case, he could join Cirque du Soleil as a contortionist.”
Thomas Jefferson is turning over in his grave.
They are chipping away at the soverengty of tribal lands, ruling that a state could intercede if a non-Indian on an Indian land perpetrated a crime. Heretofore, the tribes handled this.
This court also recently shielded police officers from being sued for Miranda violations — translation — not being read their rights.
This court also interceded in several gerrymandering cases, oft times using the “shadow docket.” Is that something like a shadow government? In each case the majority favored Republicans in Alabama, Louisiana, and Wisconsin. There will be others prior to 2024.
The Court did choose to not intercede on behalf of Republican challenges to state court rulings in North Carolina and Pennsylvania. But three judges made it clear that they would have granted hearing the case and a fourth issued an invite to push the issue with a petition to the court. So it shall be done.
This court continues to champion rule by corporations and the minority of voters. As Jessica Levinson, a professor at Loyola Law School, said, “The beliefs espoused by the conservative majority of the court are not just different from but in fact are diametrically opposed to those of a least half the country.”
For the past three decades, the conservative majority is Jekyll and Hyde when it comes to conservative’s historical position of protecting state’s rights. They do it when the end justifies the means. In Bush vs. Gore, they overruled the state of Florida’s ruling to keep counting. Why? They wanted Bush to be president — score one for Republicans. In the recent ruling expanding gun rights, they ruled against state’s rights. Why? Because Republicans are owned by the NRA — score one for Republicans. In over-turning Roe, they ruled in favor of the states. Why? Because the abortion laws in many states are draconian and they wanted to plant the flag — score one for Republicans. To be clear, the goal is to ban abortion nationwide, as McConnell has already promised, if Republicans take back the White House and Congress in 2022
The court’s approval ratings have been tanking, and were even before this latest slew of rulings. Last September, Justice Barrett told an audience, “My goal today is to convince you that this court is not comprised of a bunch of partisan hacks.” This sounds akin to when Richard Nixon proclaimed, “People have got to know whether or not their president is not a crook. Well, I am not a crook.”
I wrote in a recent blog, American Exceptionalism — By The Numbers, that our exceptionalism is a myth, and mostly propagated by white supremacists. The only thing exceptional about this court is their marching us backwards, maybe purposely, towards a time when women, minorities and non-cisgender people were powerless. It has that stench.
President Biden, expand the court. Save democracy.