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The Perversion of the Supreme Court

The Supreme Court is supposed to be in its essence an anti-majoritarian institution. This simply means that the Court must protect the rights of minorities of any type against an overreach by the popular will. In other words, we have legislatures, Congressional or state; and we have executives, president or governors. And they make and pass laws.

The executive and legislative branches are supposedly making laws to represent the views of their constituents, although we are now seeing that through devices such as radical gerrymandering, there are laws being passed which do not reflect the opinions of the populace. This is even a greater reason for the Supreme Court to be there to protect the rights of individuals, who otherwise would be subject to the power of the majority will, or even a minority who are maneuvered into a position where they can push unpopular laws through.

The Supreme Court takes cases for various reasons. But I want to focus on the time-honored concept that the Court is supposed to rule on whether various state or federal laws overreach, and rob people of rights which have been guaranteed under the United States Constitution, as enumerated in the Bill of Rights, and possibly refined and expanded by previous Court decisions, which have long been held to have great power under “stare decisis,” which literally means, “to stand by that which is decided.”

In England and then the United States, the Common Law has traditionally adhered to principles that decisions in earlier cases are to be followed in later ones, unless it can be found that there is a substantial difference in key facts. Without stare decisis, we would have a system where a defendant would be at the mercy of the vagaries of individual judges. We do not have a immense system of codified laws, we have some of those, and then hundreds of years of history of judicial decisions and principles.

In Roe v. Wade, originally heard in 1971 and not decided until 1973, the Supreme Court ruled 7-2 that states had no legal right to pass any laws restricting abortions in the first trimester of pregnancy. This was the wonderful period when the Court mostly had Justices who were deliberative, humane, and thoughtful.

Of the seven justices who affirmed in Roe, there was Bladkmun, who wrote the majority opinion, and who was appointed by Nixon, intended to be a conservative, but who, as many justices then did, evolved in terms of judicial thinking. There was Stewart, appointed by Eisenhower. He wrote a concurring opinion. Chief Justice Burger, also appointed by Nixon.. Justice Douglas, perhaps the most liberal member of the court, wrote another concurring opinion. The two justices who dissented were White, appointed by Kennedy, who had been the most conservative member of the former Warren Court, and Rehnquist, the foreboding spectre of what the Court would eventually become.

The decision did have concurring opinions, with the justices somewhat differing on where the woman’s right to abortion was derived from. The majority decision pointed to the 9th Amendment as expanded though the 14th Amendment, where the rights afforded to citizens were not specifically limited to only those enumerated in the Bill of Rights. In Griswold v. Connecticut, the Court had held that these included a right to privacy, through the First Amendment. That concept was also a part of the Roe decision; that a woman has a right to not have the state force her to carry the pregnancy, at least while she is in the first trimester.

This decision infuriated some people, who believed that there was no legal right to have an abortion. And for fifty years they have done everything possible to overturn it. And eventually they managed to put enough people on the Court who were guaranteed to overturn Roe, in direct contravention of two key principles; first, stare decisis; and second, that the Supreme Court has virtually never taken away a right which they had previously granted. The Court is expected to expand rights, but not take them away, once given. This is not a rule, of course, but it has been central to our entire legal and governmental system.

But now, the Supreme Court is going to take away the right of a woman to have a legal abortion within the first trimester of pregnancy. They are going to do this because they don’t believe that a woman has a right to abortion. They will cloak this in various meaningless phrases. The Mississippi law will stand, limiting the period to 15 weeks, even in cases of rape or incest. This will invite other states run by the Religious Far Right to pass other such laws, maybe limiting the period to eight weeks, or four, or two days. Unless the Court specifically states that fifteen weeks is the furthest a state can go in limiting the right to abortion, the decision will simply allow the Mississippi law to stand, and then make it murky enough that other states can go further.

And if a state limits the period to four weeks or one day, the Court does not have to hear it. It never heard the challenge to Texas law which limited it to six weeks, but insidiously kept it away from the state police system to regulate, and gave it to “vigilantes” to enforce by suing anyone who helped procure the abortion. The Supreme Court, in now typical cowardly and duplicitous fashion, refused to hear the challenge to the law, saying that it was too complex, brought up too many issues, to deal with. They could similarly refuse to hear any challenges to even more draconian state laws.

There are actually people with access to microphones, who think they are saying something significant when they state,”There is no mention of abortion in the Constitution!” No, there is not There is also no mention of computers, broadcast media, corporations, professional sports, the internet, space travel, assault weapons, social media, or liquor. So then none of this can be ruled upon, or monitored by the courts? It is a point far beyond obvious, but these people proudly say it anyway.

The goal of the Radical Religious Right Supreme Court (and they should be called that), is to have all abortions be outlawed. But they will do it by degrees. They are apparently going to rely on an argument which no decent law school student would ever give: that there are two competing interests (a pregnant woman and the fetus, in this case), so it must be up to the states to decide how much weight each will be given.

This is a pathetic excuse for getting o the result the Court wants, but not actually stating it, leaving it to the states. Like slavery was. And further, one could make such an argument about leaving every such decision to the states, but the Far Right doesn’t want that. What if a state decided to outlaw assault weapons? Two competing interests, gun owners and potential victims, so let the state decide. But no, the Court vigorously protects the rights of gun owners and the gun lobby, by saying the right to buy and use any number of assault weapons is provided by the Second Amendment,, under an argument that Burger wrote later was absurd and completely fabricated.

So the Court will decide that states can’t regulate things that the Right doesn’t want, maybe like mandating vaccines, but they can certainly write laws to ban abortions. Maybe a state can write laws to mandate Christian prayers in every school? Two competing interests there, fundamentalist Christians, and those who are not, or who think that it would violate the separation of church and state. Can a state ban all smoking? Very likely not, if it ever came to that; the Court would say that this is an overreach, and violates…the right of privacy. I don’t see cigarettes mentioned in the Constitution, so why do people have a right to smoke them? What if they are pregnant? It can do great harm to the fetus.

So they have completely negated the concept of stare decisis, and they have taken away a right which women had for fifty years–simply because they chose to. Justice Sotomayor said this expressly in arguments, that how can the Court now ever remove the “stench” of making it clear that the only thing which changed from 1973 was the makeup of the Court; i.e. that decisions will from now on just be seen as a function of the political viewpoints of the justices, “partisan hacks,” which Barrett tried so hard to argue was not the case, because it is.

These justices are not conscientious judicial thinkers, who are fully cognizant of the fact that the Supreme Court is supposed to be there to protect individual rights. They are literally political operatives carefully chosen by Leonard Leo, who has been determined to turn the Court into a rubber stamp for Extreme Far Right philosophies, no more independent than the high court in Russia, Iran, or any totalitarian state.

Where once nominations were mostly made based on a respected history of judicial opinions or background, now the Heritage Foundation carefully vets to make sure that no one gets on the Court unless they are guaranteed to vote the way they want them to. How can they guarantee that? By combing over every opinion, every statement, and every detail of background of these people, who almost all worked as political operatives for the Republicans, working on election oversight, denying the right to vote to minorities.

And they interview them, and carefully analyze them. Pay off their debts, as with Kavanaugh. They own them. That is why you see Barrett making her statement about “we are not political hacks” at a facility named after Mitch McConnell, with him looking on approvingly. That is why Gorsuch and Kavanaugh lavished praise on Trump for appointing them. That is why Kavanaugh sneered at the Senate, saying “what goes around, comes around.” They are “made men” (and a woman), and you can’t touch them.

And of course the Republicans would not hold hearings on Obama’s moderate nominee, Garland, because McConnell had the power not to, though no party had done that since one time right after the Civil War. And the media, either in the pocket of the Republicans, or too vacuous to understand, said things like, “Well, McConnell is playing hardball here, using clever tactics, which he has the right to do.” The fact that no one had done this in 150 years; the fact that the Republicans were desperate to keep majority control of the Supreme Court with a guaranteed rubber stamp majority for Far Right policies,, including overturning Roe, was not something that they talked about at all.

And of course we can excoriate Susan Collins, who is either stupid or a liar, who insisted that neither Kavanaugh nor Barrett would overturn Roe. Unless of course it was another verbal game to fool naive people, that the Court will never say, “We overturn Roe v. Wade,” so that is okay. Those nominees lied about it, too, but all’s fair, right, media, except for Hillary’s emails? Or the other Republican senators who either wanted this, or like Romney, shrugged their shoulders and said, “Well, Trump has the right to pick,” whereas apparently Obama didn’t. And some Republican senators said that if Hillary won, they would block all of her nominees to the Court. They actually said that.

The Supreme Court has lost all of its legitimacy, but the Republicans don’t care. They don’t believe in legal principles, they only believe in getting everything they want. To them, the Court is a figurehead, just there to give their positions the pretense of justice, just like the British Parliament and courts in the Middle Ages always did what the king wanted, under penalty of expulsion or torture and execution.

And I will not go on at length about all those stupid or arrogant or willful people who refused to say,
“We must all vote for Hillary Clinton, if for no other reason than to save the Supreme Court from being turned into a direct arm of the Far Right, only judicial in name, not reality.” From Sanders, whom I cannot even bear to look at, to Sarandon, about whom I feel the same, and so many others, they fought and fought against Hillary even up until the convention and after; some saying that she was worse than Trump, that people should throw away their votes on third or fourth parties, or not vote at all (yes moral lecturer of everybody, Eddie Glaude, said exactly that, that he would not vote in the election) they caused this.

Not as much as the Radical Religious Right did, but they were absolutely necessary conditions precedent to the result. Had they all supported Hillary, this would never have happened. We would have at least a 5-4 majority on the Court, and Kennedy might still have been one of the four. But they didn’t see it, or more likely, adamantly refused to see it or care about it. And so many people let themselves be distracted or misdirected by the red herrings that the Republicans threw up, as they always do. So this is what we have now. And even with all the other bad things the Republicans have caused, this specific thing, complete control of the Supreme Court, could have been avoided.

And while it really is no fun at all to write things like this, be prepared for much more of it. I am not sure at all that if the “Build Back Better” bill passes, the Radical Religious Right Justices won’t throw out parts of it; something about “an undue burden on corporations,” “government overreach”

They might actually find every single bill passed by Democrats as unconstitutional, who will stop them? They did that in the 1930’s, blocking major pieces of New Deal legislation, until FDR finally tried to add justices, which was stopped by Congress, but then finally some of them started resigning. These on the Court now were carefully chosen by age as well as ideology. The Republicans plan for everything. The only one who might leave at some nearer point is Thomas, and he will wait until a Republican is president; and even if we somehow get that seat, they still have five. The plan, as with everything Republican, is to control the Supreme Court forever.

And they might. Democrats won the popular vote for President in ’92, ’96, ’00, ’08, ’12, ’16, and ’20, and yet the Republicans own the Supreme Court. How could that happen? A very flawed electoral system, gerrymandering of House seats and state legislatures, and a disproportionate number of senators coming from small states, has set this up. It is almost hard to fathom, but there it is. And there is no chance of adding Court seats with the filibuster in place.

So what can be done? Well, first, all the idiots could apologize to Hillary Clinton, and to all of us who kept warning them that this would happen; even though it would be too late. And then have them at least mentally vow to always vote, and to vote for Democrats, which might do some good. Then, the Supreme Court, and protection of Roe, must be central to most Democratic campaigns. Now, the reality at this point is that winning seats would not change the makeup of the Supreme Court for years, but you can still run on it. If somehow Democrats ever got large majorities in Congress, as unlikely as that seems, they could add seats.

We know that these Radical Religious Right Court members seem very upset at any imputation that they are just that. Kavanaugh and Barrett have complained about it. So keep imputing it, every day. Journalists should write it, the few people on our side in broadcast media should say words to that effect. Law schools where they feel the same way, should not invite them to speak.

We are not talking about justices who just come out on a side we don’t like. We are looking at justices who obviously are deciding crucial matters based on what their donors and patrons want them to do. Who are not open-minded, but who have decided exactly what they want to do politically. And who are willing to throw out a half century or more of precedents, and then say, as incredibly stupidly as Alito said in arguments.,”We overturned the precedent of Plessy v. Ferguson.” He cannot tell the difference between overturning a decision which violated Equal Protection, and one which upheld the right of a woman to make decisions about her health, and have some right to privacy? “The Court overturned one, so it can overturn any of them,” is Alito’s position. That legal principle would even upset the Right Wing, but they know that liberal justices, if they ever have a majority, would never do it, they would have too much regard for the law and for protecting people’s rights.

Now, criticizing them, mocking them, refusing to honor them as they think they deserve, won’t change their decisions. But they won’t like it, and that is something.

And then we must take over more state legislatures, as Republicans figured out, and as Democrats didn’t do enough about it, particularly during Obama’s Administration, when we lost most of them. State legislatures are the ones making these repressive laws. They might even ban abortion in Virginia, where once again the electorate got tricked into thinking that a nonexistent thing in their state, “Critical Race Theory,” was the key issue, instead of abortion, or any number of state laws which Republicans could pass

.It is going to take an immense effort, and the ability of Democratic leaders and candidates to actually attack Republicans, and call them what they are, to get there. We know that Republicans continue to make up cultural issues which they profit by, and to demonize Democrats. We should have fought as ferociously as they have, because if we don’t, we will lose, and there are no more guardrails,for democracy or for us, as we once thought the Supreme Court was.

This Court will overturn everything, they will block every single Democratic bill, if they want to. Because they can. Because they have the power. That is what they, and all the rich and powerful and biased and selfish and rigidly doctrinaire, and ignorant and stupid Republicans are all about. All of them, and always. Was that so hard to figure out? Was it more important to punish Hillary for beating Sanders, then to save a woman’s right to have an abortion, and countless other rights they are prepared to take away?