Tag Archives: Supreme Court

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Monday Musings: Contemplating Our Republic As July 4th Approaches

This is a holiday week and Nancy’s first week as FORMER acting-president of the university. And so I am feeling lazy and rather unmotivated. I can think of lots of stuff to write about, but those thoughts have been slow to coalesce into a coherent post.

I find myself drawn to the idea of commenting on the July 4th holiday. Our nation is two hundred and forty-seven years old and while I’m sure the founders would be heartened, and probably somewhat amazed, that their experiment in representative government has lasted so long, I am also certain they would be troubled by the strength and prevalence of anti-democratic forces in today’s society. Rarely in our history has our republic appeared so frail.

I could go on for pages and pages about the damage the Supreme Court has done to racial progress in this country with its rulings in the Harvard and UNC cases. Affirmative Action, though demonized on the right for decades, was the single most valuable tool institutions of higher education had at their disposal to rectify racial underrepresentation at elite schools caused by historical and systemic socio-economic inequality. Without it, lingering inequities in our society will only get worse. In the name of “leveling the playing field” the conservative majority on the Court has actually allowed existing structural inequalities — better funded schools in White communities; standardized tests that have been shown again and again to favor White students of means; access to tutors, college admission consultants, and other resources that only the wealthy can afford — to be determinative factors in college enrollment.

But I could also go on and on about the Supreme Court’s ruling in the Moore v. Harper case, in which it rejected a fringe conservative interpretation — the so called “independent state legislature” theory — of the Constitution’s mandates regarding the administration of federal elections. Basically, the decision rejects the notion that state legislatures can do anything they wish, without being subject to state judicial overview, with regard to the creation of Congressional maps and the implementation of election lawse. This decision was a victory for democracy and it offered some hope that this Supreme Court conservative majority, while willing to ignore precedent in cases addressing abortion, Affirmative Action, and other long-established principles, is not simply a jurisprudential arm of the Republican National Committee.

I could lament the fact that for four years we allowed our nation to be hijacked by a venal, narcissistic, kleptocratic, authoritarian thug, who very nearly destroyed our system of government.

But he didn’t destroy it. Instead, he was defeated, soundly and legitimately, and his defeat was affirmed by Congress and the courts. Moreover, we can take satisfaction in seeing his legal chickens come home to roost, and I am hopeful that he will spend the bulk of his remaining years fighting off one well-deserved indictment after another.

And so it goes; so it has always been in this country. Dreams of progress are tempered by signs of retrenchment. Frightening assaults on the norms of a democratic society are countered by reassertions of our shared values. Our imperfect union stumbles forward and teeters back, lurching toward an uncertain future. There is an elegant simplicity to the system set up in our Constitution, one for which I gained enormous appreciation as a student of U.S. history. That simplicity, however, masks an unfortunate truth: ours is an inherently conservative system. I don’t mean this in a “progressive-versus-conservative” context, though often the mechanisms of our government do seem to favor political conservatism.

Rather, I mean that our Revolution was essentially a rebellion of the upper middle class. Learned elites threw off a monarchical system that had outgrown its usefulness and replaced it with a system designed to preserve the social order as it was understood and valued at the time, and to slow-walk any possible radical change that might be contemplated in the future. In essence, the founders sought to alter completely America’s governing realities with as little disruption as possible.

And so, in a sense, the system they created is intended to be frustrating to those of us who wish for systemic reform. That stasis, the founders believed, was a reasonable price to pay for stability. One could argue that a more flexible, change-friendly system might NOT have survived the last Administration. On the other hand, such a system might have allowed us to address decades ago problems of racial and economic inequality that have proved historically intractable.

What’s my point?

I’m flattered that you think I have one.

I suppose I am reminded of the Winston Churchill quote: “Democracy is the worst form of government, except for all the others.” It is easy on this Fourth of July to lament all that is wrong with our country. And no doubt there is a lot to lament. But it’s not all terrible, and the alternatives — some of which we glimpsed as possibilities just a few years ago, much to our horror — range from “not ideal either” to utterly unthinkable. All of which leaves me thankful for the republic we have, even as I chafe at the stubborn pace of progress that it allows.

I hope you have a great week. Enjoy your holiday.

Blogging, D.B. Jackson, David B. Coe, Not at all Writing Related

Monday Musings: Midterms Round-up — Orange is the New Blech!

This time last week, I was lamenting the what I saw as inevitable advances by anti-democratic forces in this year’s midterm elections. Yes, I was worried my party would take a drubbing, but more, I feared elections in Arizona, Nevada, Pennsylvania, and elsewhere might put in power election deniers, people more wedded to party and certain personalities than to the founding principles of our republic.

What a difference one week can make.

Incredibly, miraculously, astoundingly, this year’s midterms turned out to be a reaffirmation of America’s commitment to democracy and those aforementioned founding principles. Yes, Democrats are poised to lose control of the House of Representatives, though only by five seats or fewer. Republicans might — might — get to 221 seats (leaving Democrats with 214). But I think it’s more likely they’ll have 220 or 219, which would constitute a razor thin majority, one of the smallest in the last century. Actually, I just looked it up. It would be the smallest majority since the 65th Congress of 1917-1919. It would likely be a recipe for infighting, and for repeated failures and embarrassments for new Speaker Kevin McCarthy and his buddies.

The Senate remains in Democratic hands. Remarkably, incredibly, astoundingly, miraculously. By the time the Georgia runoff is done, Democrats might well have 51 seats, a PICKUP of one. Now this assumes that Joe Manchin (D-West Virginia) and/or Kyrsten Sinema (D-Arizona) won’t jump ship and switch parties to swing the majority to the Republicans. But I don’t believe either is likely to do so. Certainly Manchin won’t do that before the Georgia runoff. If the Democrats win in Georgia, he won’t switch at all. And Sinema has to be looking at fellow Arizona Democrat Mark Kelly’s reelection victory, at the Arizona Governor’s race, which Democrat Katie Hobbs currently leads, and also at other down-ballot races. Being a true Democrat in today’s Arizona has proven to be a pretty good thing electorally speaking. Moreover, as a Republican she would absolutely face a right-wing primary challenge. She would likely lose her seat months before the general election. I believe it’s more likely that over the next two years, her Senate voting will trend leftward — slowly, cautiously, but inexorably.

The most important results from Tuesday night, though, had far less to do with Congress, and far more to do with the sanctity of America elections. ALL the MAGA loonies who were running for Secretary of State positions in key battleground states lost. Every one. Including the biggest loony of all, Jim Marchant in Nevada. And with the temporary exception of Kari “Wackadoodle” Lake in Arizona, all the election deniers running for governor in key battleground states also lost. And Lake is trailing and may be on the verge of being declared the loser in her race.

Make no mistake, this election was a repudiation of a soiled Republican brand. It was a rejection of election denying. It was an endorsement of free and fair elections. And, by the way, it was also an expression of outrage at the overturning of Roe v Wade, the 1973 ruling that for nearly fifty years provided national legal protection for women’s reproductive freedom. Constitutional bans on abortion were defeated at the polls in the ruby-red states of Kentucky and Montana. Constitutional guarantees of abortion rights passed in California, Michigan, and Vermont. Opponents of the right to choose had a very, very bad night. Indeed, early evidence suggests that young voters, especially young women, were motivated to vote this year to an extent rarely seen in midterm elections, their activism fueled by outrage over the Supreme Court’s reversal of Roe as well as by opposition to anti-democratic candidates.

Most of all, last week’s election serves as a reminder that a certain former President is NOT the most powerful force in American politics. He is the loudest certainly, the most dangerous beyond any doubt. But he is weak, driven by ego and pique more than by any true political skill or insight. He is a drag on the Republican party. He is a has-been.

Already he is tearing his party apart from within, attacking both Florida Governor RonDeSantis and Virginia governor Glenn Youngkin, who have emerged as his chief rivals for the 2024 Republican nomination. (He said Youngkin’s name “sounds Chinese” — a quote. I swear to God. And he claimed he sent the FBI to Florida in 2018 to save DeSantis’s flagging gubernatorial campaign, which, if true, would be something worth investigating, to say the least.) The former guy intends to go ahead with an announcement of his 2024 Presidential bid, but now it will be welcomed only by his most rabid supporters.

Across the country, again and again in high profile races, his hand-picked candidates lost. More than anything else, this election was a repudiation of Trumpism. Twice now he has lost the popular vote while running for President, and now twice in midterm elections that were in large part all about him, the Republican party has underperformed. In 2018, the GOP suffered historic losses. And this time, in a midterm that should have provided his party with a bonanza, the country instead gave its votes to the party of an unpopular President who has (through no fault of his own, I should add) presided over high inflation and rising gas prices. The Republicans should have kicked butt this year. They didn’t, and it is largely because of the orange has-been. Everyone knows it. Even Rupert Murdoch is rethinking his support of the man. When a Republican leader has lost Fox News, he has lost everything.

I don’t know what will happen in two years. None of us knows. Two years in politics is like ten lifetimes. But I do know this: Donald Trump’s attempt to elect a state-level MAGA infrastructure that would steal the 2024 election for him has failed utterly.

Am I gloating? Yeah, a little bit. Where Trump is concerned, more than a little bit. But the fucker deserves it.

God bless America.

Have a great week.

Blogging, D.B. Jackson, David B. Coe, Not at all Writing Related

Monday Musings: We Are Broken

On Friday, I grieved.

Today I’m just ticked off.

Every approach to the subject I attempt feels inadequate. Our nation is broken and I despair of seeing it repaired in my lifetime or even that of my children.

When six deeply flawed human beings, driven by their religious beliefs and their disregard for the plights of anyone other than themselves, can set back the cause of human rights with such ease, we are broken. When legislators in two dozen states, the overwhelming majority of them white men, can deny adequate health care to forty-five million women, we are broken. When a U.S. President elected by a minority of the voting public, and a U.S. Senator elected by voters of one state, can twist the Supreme Court nomination process to place three ideologues on the bench in four years, we are broken.

When voters on the left can become so obsessed with a single candidate that they reject the party’s eventual nominee out of pique, thus enabling the election of a man who should NEVER have been President, we are broken. When two naïve, foolish, or perhaps just deeply dishonest “centrist” Senators can be duped by Supreme Court nominees into believing said nominees will “respect precedent,” and that’s enough to put those nominees on the bench, we are broken. When, after a four-year reign of corruption, white-supremacy, and wanton cruelty, ending in a violent insurrection and conspiracy aimed at undermining the very foundations of our Republic, people still need to be convinced that yes, there really are substantive differences between the two parties, we are broken.

When our nation’s political system can be manipulated to enable one-party rule in states that are evenly split between the parties, we are broken. When one party can win the national popular vote for the Presidency in five of six elections, but be declared the loser in three of those elections, we are broken.

When guns kill more than 40,000 Americans a year, we are broken.

When unarmed people of color are murdered in the streets by police again and again and again and again and again and again and again, while armed white suspects are routinely subdued and taken into custody, alive and well, we are broken.

When one’s skin color is a primary determining factor in one’s chances of finding and keeping a job, being able to buy a house, having access to health care, enjoying a comfortable retirement, living to our country’s average life expectancy, we are broken. And when one’s skin color is also a primary determining factor in one’s risk of contracting a disease, of being a victim of crime, of being poor, of being unemployed, of being homeless, of being incarcerated, of being pulled over by police, of being beaten by police, of being killed by police, we are broken.

When things we thought were settled law, like marriage equality and abortion rights and legal protections for suspects and availability of contraception and the freedom to love who and how we wish in the privacy of our homes, are all suddenly at risk again from a judicial system that responds not to legal doctrine, but to the vicissitudes of partisan politics, we are broken.

When elected officials treat educators and librarians and trans children like they’re criminals, and work harder at banning books from our schools and libraries than they do at banning weapons of war from our streets and classrooms, we are broken.

When global climate change is convincingly linked to exploding incidences of catastrophic floods, devastating storms, historic droughts, and hellish, record-setting fires, and still our body politic consistently proves itself incapable of doing anything to save our planet, we are broken.

When economic inequality in our country continues to grow, building on a forty-year trend, with no end in sight, and no true remedial steps under serious consideration, we are broken.

When our problems are so very easy to list, and our progress so very hard to maintain, we are broken.

I resist the urge to leave this post at that. I am weary and angry and despondent. But I am also a father, and someday I expect to be a grandfather. Which means I cannot and will not give up. Barack Obama famously said to an enthusiastic campaign crowd booing a certain 2016 Presidential candidate, “Don’t boo! Vote!” He also famously said, “Elections have consequences.”

Some look at the problems facing our country and say “Burn it all down.” As if that is a solution. As if that isn’t what the other side wants. As if with all their guns and their survivalist shit, the other side isn’t better prepared for such a scenario than we are.

No, the answer isn’t to boo or to burn. It’s to work and to vote and to never forget the anger so many of us feel right now.

Have a good week. Keep fighting.

Blogging, D.B. Jackson, David B. Coe, Not at all Writing Related

Monday Musings: Roe, Griswold, and the Danger of Getting What You Wish For

At the risk of wading into very dangerous political waters, I feel I must weigh in publicly on the recent leak of the Supreme Court’s draft decision in Dobbs v. Jackson Women’s Health Organization, the Mississippi abortion case, which effectively seeks to overrule Roe v. Wade. Based on the text of the leaked draft, at least five of the Court’s six conservative justices are poised to put an end to Federal protection for reproductive freedom in this country, despite assurances several of them (Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett) gave during their confirmation hearings to the effect that they would respect precedent, that they viewed Roe as settled law, and that claims they intended to overturn the 1973 decision were based in groundless left-wing fears.

Yes, I support reproductive freedom for all women, regardless of what state they live in, what color their skin, and how big their bank accounts. Overturning Roe, it needs to be said, will not end abortion in this country. It will merely limit its availability to states with solid progressive majorities, and to those in conservative states with the means to circumvent their states’ laws. Put another way, abortion will remain available to wealthy white women everywhere. Women of color and poor and working class women, regardless of race, who live in red states, will be left with few options.

I should also add here that I have several friends who oppose abortion on religious grounds, and whose views on issues of “life” I find unimpeachable. They oppose the death penalty as well. They support commonsense gun control. They support increased funding for daycare, early education, family leave policies, and other initiatives that truly soften the effect of their stance against abortion. I respect their opinions and accept that well-meaning, sincere, and ideologically consistent advocates on both sides of this issue can legitimately disagree.

But I also have to say this to those who are pleased by what they saw in the Court’s draft opinion: Be very, very careful what you wish for.

Samuel Alito’s draft opinion essentially returns the Court to a stance that began to erode during the 1960s with the Court’s decision in 1965’s Griswold v. Connecticut. That case, brought by a married couple in Connecticut, overturned a state law that had rendered illegal the use of contraceptives by consenting adults. Read that sentence again. The Court overruled a state law that barred consulting adults, even if they were married, from using contraceptives. The Court, in a 7-2 decision written by William O. Douglas, held that there was in the Constitution an implied right to privacy upon which states and the Federal government could not infringe.

An implied right to privacy.

Here we see the power of precedent. Without Griswold, there is no Roe. Without Griswold, there also is no Eisenstadt v. Baird, a 1972 decision that extended to unmarried couples the unfettered right to purchase and use contraceptives. Without Griswold, there also is no Loving v. Virginia, a 1967 decision that struck down state prohibitions on interracial marriage. Without Griswold, there is no Lawrence v. Texas, a 1986 case in which the Court held that sexual intimacy among consulting adults, regardless of gender, is also protected from governmental interference and regulation. Without Griswold, there is no Obergefell v. Hodges, the 2015 ruling granting marriage equality to all couples, regardless of gender and sexual orientation.

The Griswold decision, and its establishment of that implied right to privacy, is fundamental to every decision since that has taken government oversight out of our bedrooms. Alito’s draft decision, while aimed at Roe, effectively calls back into question Griswold itself, and every case that drew upon its precedent.

Don’t believe me? Think I’m overreacting? In March of this year, perhaps anticipating where the Texas and Mississippi abortion bans would take this new conservative supermajority on the Court, Senator Mike Braun, a conservative Republican from Indiana, said he thought the Supreme Court should return to the states the power to regulate interracial marriage, the availability of contraceptives, and the notion of marriage equality. He is not the only Republican to make such a statement in recent months.

I am far from the first person to point out that the ideological Right is all for small government except when it comes to our most intimate relationships. At which point it very much wants government telling us what to do.

Connecticut, of course, is not about to start banning the sale of contraceptives. But Mississippi might. Alabama might. Utah and Wyoming and Idaho might. I live in Tennessee. I can see the Tennessee legislature being first in line to role back the clock to the 1950s.

Again, think I’m exaggerating the threat? Consider this: Brett Kavanaugh, during his Senate confirmation hearings, called contraceptives “abortion-inducing drugs.” (1)

Conservative observers assure us that while Roe may be in peril, these other decisions are not, because they are popular enough to survive challenges to them. The problem with that argument is that legal abortion is also quite popular in this country. More than two-thirds of Americans oppose overturning Roe. That hasn’t stopped the Court from stepping to the precipice of doing just that. (2)

I do believe that the Court’s impending decision, should it go as the leaked draft suggests it will, is likely to spark an overwhelming backlash from voters on the Left. Recent polls show Democratic voters lack enthusiasm about voting in November’s midterm elections, especially the young and those who identify as most progressive. Those are precisely the groups who are likely to react most passionately to the Court’s action. They will be energized by this. The political landscape, I believe, is about to shift dramatically.

But the real shock for conservatives is likely to come as emboldened legislatures in America’s red states turn their efforts to restricting more and more of our most precious private rights. Some yahoo in Tennessee or Idaho or elsewhere is bound to decide that contraception ought to be regulated, or that relationships between people of different races ought to be outlawed. And at that point, even their most conservative supporters in the electorate are going to wake up and decide they’ve had enough.

Conservative politicians who overreach in this way will get exactly what they deserve. All because Samuel Alito has given them exactly what they think they want.

Have a great week.

—-
1 Litman, Leah and Vladeck, Steve, “The Biggest Lie Conservative Defenders of Alito’s Leaked Decision Are Telling,” Slate, May 5, 2022.
2 Litman and Vladeck.

Blogging, D.B. Jackson, David B. Coe, Not at all Writing Related

Monday Musings: Court Wars

Sometimes I write my Monday posts on Saturday morning. It’s just a convenient time. And so right now I am at my desk, trying to marshal my thoughts, and rein in my emotions.

I am devastated by the death of Supreme Court Justice Ruth Bader Ginsberg. It pains me that her last hours were spent thinking as much about the political chaos that would follow her death as about her family and a momentous life well-lived. Within an hour of her passing, tributes to her stunning career were already being drowned out by the fight over how and when she ought to be replaced. She deserved better.

And so do we, as a nation. I am enraged by the staggering hypocrisy of Mitch McConnell and his Republican colleagues in the Senate. In 2016, after the death of Antonin Scalia, they refused to allow hearings or a vote on Barack Obama’s nominee, Merrick Garland. It’s too close to the election, they said. The new President, whoever that may be, ought to have the opportunity to fill the vacancy. No, it’s not ideal to leave a seat on the Court open for so long, but this principle is worth the risk. Scalia died in March. His seat remained open for more than a year.

We are now forty-five days from another Presidential election. If the Senate were to follow McConnell’s “rule” on allowing new Presidents to choose a Court nominee, we might have to wait a total of five months. But now Republicans say, There is plenty of time for the current occupant of the White House to select a successor. It would be dangerous to leave the seat open for so long. Fucking unbelievable.

And yet, utterly predictable. Because the real problem is that we have allowed the Court to become completely politicized. The judiciary was designed and intended to be the least political branch of our government. It was supposed to be above politics, the institutional referee between the two elected branches. How far we have fallen from that ideal. Just today, a friend asked me if I could think of any other nation on the planet whose selection of judges was more riven by politics than ours. I couldn’t.

Like everything else in our system of government, in our whole society, all matters pertaining to the courts have become hyper-partisan. It is almost impossible to believe this now, but when Scalia’s nomination came to a Senate vote, he was confirmed 98-0. Ginsberg, as liberal as Scalia was conservative, won confirmation 96-3. I doubt we’ll see another vote like that on a Supreme Court Justice in this century.

Conservatives point to Ronald Reagan’s unsuccessful nomination of Robert Bork as the start of the Court’s politicization. They claim that liberal Democrats, opposed to Bork’s ideology, misrepresented his record and vilified him. I remember that fight, which took place during my first semester in graduate school, quite differently. Bork’s very nomination was a provocation. Before becoming a candidate for the Court, Bork was best known as Richard Nixon’s Solicitor General, who, on what became known as the “Saturday Night Massacre,” fired Watergate Special Prosecutor Archibald Cox. He did this after Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus resigned in protest rather than carry out Nixon’s order. By the time of his Supreme Court hearings, Bork had long since revealed himself as a man who placed party before country, and as an advocate for unbridled executive power. He had been a villain to the Left for more than a decade. He never should have been nominated.

The fact is, it doesn’t matter who started the trend. It’s here now. And with McConnell’s brazen disregard for Constitutional norms in the case of the Garland nomination, it has been escalated to full-scale political war. If McConnell pushes through a Trump nominee before the election, or during a lame-duck session after it, and if, as polls currently predict, the election brings a Biden victory and a Democratic takeover of the Senate, I expect Democrats to attempt to change the structure of the Court in next year’s Congressional session. The Constitution says nothing about the number of justices who can serve on the Court, and it grants to Congress wide discretion in creating and maintaining all levels of the Federal Judiciary.

The problem with this is, as soon as the Democrats lose control of the Senate, the Republicans can change the composition again. And so on, until the Court becomes a caricature of itself, and one of the bedrock institutions of our republic is destroyed for all time.

One solution would be for Senate Republicans to recognize their own hypocrisy and refuse to vote on a Trump nominee. It would only take four of them, and I wish I believed that among the fifty-three members of the GOP Senate caucus there are four people of integrity. But I don’t.

That leaves few options and little hope for a near-term de-escalation of the Court battles. I am as pessimistic right now about the future of our system of government as I have ever been. Another legacy of this dark era in our history.

And I end this piece as I began it: with regret that the life of Ruth Bader Ginsberg, a gender pioneer, a brilliant jurist, a champion for the dispossessed, the disadvantaged, and the downtrodden, should be obscured by ridiculous and unreasonable political machinations.

We should be better than this. I grieve that we are not.