Let’s face it, these have been a really sucky last few days. The Supreme Court has launched us back to our roots when the Constitution was ratified and initially amended in the 1790’s, and women were transported to 1640s Mass Bay Colony where they weren’t even second-class citizens.
Death row prisoners who have exhausted their appeals can now, thanks to this Court, literally pick their poison. Criminal defendants who’ve had their Miranda rights violated can no longer sue for damages for the violation of their civil rights unde 42 U.S.C. § 1983.
Over several days, the Court has turned our collective understanding of our common rights on its head. And. please, don’t get me started on its gutting of the Establishment Clause.
The barbarians are no longer at the gates, rather they’ve crashed through the gates and started setting the town afire.
If you can’t tell, I’m pissed and you should be too. It’s almost a cliche to say that if they go for the rights of others, and we standby silently and do nothing, at some point they’ll come for other rights. And who will be there to stop them?
Over the next few days I will comment on three cases: Vega v. Tekoh (Miranda), New York State Rifle & Pistol Association, Inc. et al. v. Bruen (Second Amendment), and Dobbs v. Jackson Women's Health Organization et al (abortion/privacy). But first, in this piece, I want to make a few general comments.
First, let’s be clear. Over two days, the Court regulated the use women’s uteruses while deregulating the carrying of firearms. Put another way, women’s status has been legally subordinated to the status of guns in our society.
Second, as has been widely reported and I’ll address when I get to Dobbs, Justice Thomas revealed his hit list of cases to be “reviewed” in the future. Chief among them is Griswald v. Connecticut, the case that established the right to privacy. As discussed in previous posts, it always seemed to me that Roe and/or Casey could not be attacked without looking at Griswald. Look for a direct assault on Griswald at the earliest opportunity.
Third, there’s little question that Thomas is calling the plays for the Court, at least on cases impacting fundamental “rights” issues. Dobbs was a 5-4 opinion with Chief Justice Roberts uphold Mississippi’s 15 week ban, the original basis of the case brought to the Court. In a case of the legal and social significance of Dobbs you’d expect that the Chief would have some influence over the final outcome. This vote shows that he has little to no influence, at least in matters such as those in Dobbs.
As long as there are four other Justices of extreme conservative or reactionary convictions, Thomas will control at least some part of the Court’s agenda. This bodes ill at least for the near future.
Fourth, as I have mentioned previously regarding Dobbs, Heller and McDonald, this Court, in order to advance an agenda, fractures, misstates or makes up history, and tortures the law. The three cases handed down on Thursday and Friday continue this approach.
Reasonable people can disagree with the holding of a specific case but we all must accept the judgment if it is based on sound law and precedent, and or if it legitimately reviews history as a tool to interpret the meaning and thus application of the Constitution in a specific instance. But as Daniel Patrick Moynihan once said, “you’re entitled to your own opinions, not your own facts.” In the cases cited above, the same Justices (save for Scalia who passed in 2016) continue to assert opinions as facts, and personal bias as Constitutional doctrine, thus reducing the authority of the Court.
Fifth, if you don’t think elections matter, or politics is “boring,” you’d better check yourself because you’re part of the problem. Gorsuch, Kavanaugh, and Coney Barrett did not materialize out of thin air or emerge from a cabbage patch. They were nominated and confirmed by elected politicians. If you don’t make the minimal effort to inform yourself and vote, then you’re not just part of the problem, you are the problem.
Sixth, Gorsuch, Kavanaugh and Coney Barrett lied under oath at their confirmation hearings. (For that matter, so did Thomas and Alito.) What redress do the people have when nominees wantonly perjure themselves to gain a seat on the highest Court in the land? And what redress do we have when elected officials knew or should have known (in the case of Coney Barrett there were years of her writings that contradicted her sworn testimony) that these nominees perjured themselves but voted to confirm them anyway?
In the 1990’s, the book “Who Will Tell The People?” was published. Written by William Greider, the book addresses the specific operations of government and the outside influences on governmental outcomes. To the question “who will tell the people what” comes the explicit answer that the “people“ count for very little if anything at all in questions about what gets done in their name.
To answer the question posed above, the people have little redress for decisions already made and implemented, but can mightily influence the future - if only we’d just act.
Seventh and finally, what happened this week was not an anomaly, but the predictable outcome of decades of incremental chipping away of American rights, values and democracy in order to create a society more to their liking. This is a society where cultural, ethnic, and racial diverse groups are subordinate to whites. A society where women’s rights are eroded (remember ERA?) to subordinate women to men. A society where voting rights are diminished for certain groups in order to protect historically dominant groups - specifically white males. A society where our governing institutions become more muscular and authoritarian. A society where specific economic winners are able to exert power over the poor and near poor.
Make no mistake, this is an effort begun over 40 years ago. Insidiously, patiently, these enemies of diversity and democracy have insinuated themselves wherever the opportunity permitted. What happened at the Court over the past few days was not a proverbial bolt from the blue, rather it was the culmination of decades of effort on the part of a group of people, some known and others less publicly seen, who have one vision and one goal: to remake an America that is antithetical to any concept of democratic values.
These decisions handed down this week, while shocking, were not surprising. While women’s liberty took the hit in Dobbs, don’t think all the rest of our liberties are off the chopping block. If anything it is painfully obvious that the liberties of all are equally at risk.
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