Party Like It’s 1868!

Our way of life is under attack — a warning that I have been shouting for some time now. While the former guy continues to push the Big Lie (in order to continue to profit off of the Big Grift), his impact on our country is more insidious and much more long lasting than just his attempts at overthrowing our government to keep himself in power. His biggest impact is the radicalization of the Supreme Court. Perhaps more correctly, Senator Mitch McConnell (R-KY) orchestrated a type of revolution when he pushed three Supreme Court nominees through the Senate while making up the rules as he went along — changing them to suit his purposes. He refused to consider President Obama’s nominee Merrick Garland because it was an election year, leaving the seat empty for almost a year. Then in 2017 he changed the filibuster rule to push Justice Neil Gorsuch through to confirmation. The nomination of Justice Brett Kavanaugh was equally rushed. Finally, Justice Amy Coney Barrett was confirmed by the Senate eight days before the 2020 election, after early voting had started in many states. So much for consistency, honesty or integrity.

Those three Justices have now joined with Justices Clarence Thomas (I should mention that his wife advocated for decertifying the election of President Biden and reinstating the former guy), and Samuel Alito, two ultra conservative Justices that have been waiting for the opportunity to undo decades of rulings. Five Justices now have a veto proof majority to decide cases for decades to come. Chief Justice John Roberts, a true conservative and not a Trumpist, has become something of a moderate vote, although in most cases he is expected to vote with the majority.

The result is a runaway court eager to execute a political agenda. Their most spectacular decision so far, of course, is to take away the Constitutional right to an abortion decided in Roe v Wade, the first time in our history that the Supreme Court took away a right. This decision will have far reaching repercussions throughout the land, many of which are yet to be understood. Many Americans are morally opposed to abortion but also believe that the government should stay out of imposing its will on women and girls’ health care decisions. Technically, the ruling did not ban abortions. It merely said that there was no Constitutional protection and it was left to the states to decide for themselves. In some states, the laws can be interpreted as preventing In Vitro Fertilization (IVF), “morning after” pills and some forms of contraception. Some states have no exceptions including the health of the woman, rape or incest. Where the health of the women is included as an exception, the wording is often vague making physicians and other health care providers reluctant, or down right refusing, to provide care for fear of prosecution. Some states are seriously considering making it a crime for a woman to go to another state for a legal abortion. Will there be pregnancy police? It is illegal in some states to gamble or solicit a prostitute, will they prosecute travelers to Nevada where such things are legal? A whole barrel of potential invasions of privacy in many aspects of our individual lives are just waiting to be unleashed by overzealous legislatures around the country.

But, wait! There’s more!

As I explained in my 5 May 2020 piece (The Minority Rules) the majority opinion overturning Roe essentially says that the Fourteenth Amendment “due process” and “equal protection” clauses do not apply to anything that was not mentioned in the original Constitution or that was unknown to the Congress and states when the Amendment was ratified. Let that sink in. Here we come 1868! All kinds of things were unknown in those days and the rights of women and minorities were nearly non-existent.

Although Justice Alito and other Justices tried to say that previous rulings using the Fourteenth Amendment, such as same sex marriage, unfettered access to contraceptives, marital privacy, mixed-race marriages, and a slew of other rulings, are not in jeopardy, several of them have voiced opposition to those rulings in the past or said that such decisions should be left to the states (more on that in a minute). More to the point, Justice Thomas in his concurring opinion expressly addressed those issues (except for some reason, mixed race marriages) as being wrongly decided. In essence, he was sending notice to the states that the Supreme Court would gladly re-adjudicate those issues if they are brought forward.

In this session the Court also weakened gun laws, narrowed the gap between church and state and crippled the federal government’s ability to regulate carbon emissions to fight climate change, among other things. Two guiding principles seem to be at work with this majority.

One is the “nondelegation doctrine.” This court used that theory to block vaccine mandates during the pandemic and now to prevent the Environmental Protection Agency (EPA) from regulating power plants. In essence, the theory holds that Congress cannot delegate policymaking authority to Executive Branch agencies. In other words, if the law does not specify the powers of a particular agency, then they are not allowed to put forth regulations or rules that govern a given activity. In the modern United States, science, technology, knowledge and innovation are advancing at ever increasing speeds. To keep up with modern advances, and unable to anticipate every development, Congress since the late 1930’s increasingly wrote laws governing federal agencies in broad terms, allowing them to operate in a particular regulatory area, precluding the need to constantly rewrite the laws. In one study, 99 percent of the laws passed since 1947 delegated some authority to a federal agency. If the nondelegation doctrine becomes the new norm for the Supreme Court, the federal government as we know it may be made impotent and unable to govern. Which, of course, is the goal of several far right conservative groups. Certainly, there will be many, many challenges to federal control.

The second aim of this Court seems to be to return as many things to the states as possible for them to legislate as they please. We see this with the abortion decision. Expect it to continue in many areas of what was once considered settled law. Where you live will dictate your rights. One might ask why have a federal government if the states will be able to do as they please? Good question. Apparently national defense and interstate commerce are the only areas of responsibility for the federal government.

Historically, “states rights” has been the cover for the Civil War, enslavement of human beings, Jim Crow laws, and preventing people from voting to name a few of the oppressive laws enacted over our history through the middle of the 20th Century. Let’s remember our history. After the Revolutionary War the colonies first banded together under the Articles of Confederation, giving great latitude to each. It did not work. With the Constitution and the creation of a federal government, we became a (mostly) united functioning country.

For me, all of the above not-with-standing, the scariest part is yet to come. The Supreme Court announced that next year they will hear Moore v Harper a case from North Carolina involving a gerrymandered voting districts map created by the state legislature that was overturned by the North Carolina state Supreme Court saying that it violated the state Constitution. The court ordered up a more fair map drawn by the court. This case involves yet another far right legal theory called “the independent state legislature theory.” Without getting too far into the legal weeds, the theory claims that the Election Clause of the Constitution says that state legislatures are the only groups with the right to decide on election rules unless Congress passes overriding legislation. In other words, an individual state could set up whatever rules it wants concerning federal and state elections and that state’s Supreme Court or governor have no say whatsoever as to how it will be done. The governor cannot veto such laws and the state Supreme Court cannot declare it as running counter to the state’s Constitution. The legislature can do whatever it wants regarding elections. Or so the theory states. Put that in the context of the 2020 election and the former guy’s attempts to overturn the election. Had states passed laws prior to the election giving themselves the sole power to choose the electors for the Electoral College they could have ignored the actual popular vote and sent a slate for whomever they want. I cannot predict what will happen when that case comes before the U.S. Supreme Court, and that’s the problem. Maybe they will make clear that state legislatures do not have that unfettered power, maybe they won’t. And that’s scary to me.

Prior to the Civil War, the correct grammatical statement was “the United States are…” After the Civil war it became “the United States is….” I fear we are moving backward in time.