HUMANITY'S DEATH WARRANT?

My thoughts on the federal judiciary.

“These young ultra-right lawyers will be around for a long time. So how will progressive legislation—including legislation that’s needed for survival—make it past this obstacle that the GOP has put in place?”

“As the far right careens rightward it seems to them that center-right Democrats are far left—this is an optical illusion.”

“There’s a struggle ahead in America—which way America goes will determine America’s fate and the world’s fate as well.”

It looks like SCOTUS will overturn Roe v. Wade—I want to comment on the federal judiciary, which is a really important thing that might even determine whether global civilization collapses due to global heating.

First I’ll comment on:

• SCOTUS reform

• whether SCOTUS is the main threat that we face when it comes to the federal judiciary

• the extent to which right-wing politics has shifted

Then I’ll comment on three criticisms regarding SCOTUS’s right-wing justices:

• (1) that these justices are radical regarding the federal government

• (2) that these justices are radical regarding unenumerated rights

• (3) that these justices didn’t obtain their seats through democratic means

I should note that—on 13 January 2022—I emailed my left-wing friend the following:

Overall, haven’t these right-wing SCOTUS judges been less dangerous than many had feared? 

For example, would these right-wing SCOTUS judges actually strike down Roe? 

And my left-wing friend wrote—on the same day—this response to me:

Give them a chance. Today’s ruling is a stepping stone towards dismantling the federal government.

I doubt that Roe has long to live.

My left-wing friend was clearly right to be worried about Roe—it’s not 100% guaranteed that Roe will fall, but there’s every reason to expect that it will.

SCOTUS Reform

Let me briefly share some ideas about SCOTUS reform—check out this piece:

• “Reform the Court, but Don’t Pack It” (8 August 2020)

Here are some notes that I took on the 8 August 2020 piece:

• “Progressives are taking the idea of reforming the Supreme Court seriously.”

• “Donald Trump has stocked the federal bench with conservative judges”

• Trump has also “guaranteed a clear conservative majority on the Supreme Court for decades to come”

• this “Republican capture of the judiciary” poses a “severe threat to any progressive legislation in the foreseeable future”

• “There are two basic types of reform.”

• “One type adjusts the personnel of the Supreme Court by adding justices, choosing them differently, or shortening their terms of office.”

• “The second kind disempowers the institution itself—removing certain cases from its jurisdiction, requiring a greater number of justices to agree in order to interfere with democratic choices, or letting Congress override any glaring mistakes.”

• the authors “argue in a new paper” that “this second brand of reform is best”

• the “first sort of fix may serve the Democrats in the short term, but at the price of naked partisanship and possible blowback”

• “the second facilitates progressive ends and, just as important, reinvigorates American democracy”

• the best move is to disempower the judiciary—this would transfer the “underlying political disputes to the democratic process, where they belong”

• “conservatives have complained about the antidemocratic power of the Supreme Court for generations”—this places conservative in the “hard spot of explaining why they are against its reform now”

• “it is fair to worry that Congress is dysfunctional” and that “shifting more power to it is merely a recipe for more inaction”

• “progressives know” that “legislative power is the sole means of political reform of the country”

• you can see that progressives understand this when you look at progressives’ “recent proposals of a Green New Deal and an ambitious H.R. 1”

• “No court will enact these sorts of policies if Congress doesn’t” and “too powerful a Supreme Court will pose an existential threat to any policy if Congress does”

• “creating a progressive coalition takes time and work”

• it’s a “better choice” to force ourselves to “come to terms with one another as fellow citizens” than to invite a “judiciary to do the job of democracy”

• the latter situation means “packing our energies into debating which judges should determine our common fate”

So you can see that there are interesting ideas about how to reform SCOTUS—I just wanted to introduce these ideas for people who not be familiar with the possibilities that exist regarding SCOTUS.

Of course, the type of reform that the 8 August 2020 piece argues for won’t be relevant until you have a situation where progressives control Congress and SCOTUS is blocking legislation—right now you have 100% GOP obstructionism and a few right-wing Democrats.

SCOTUS Is NOT the Main Threat

It’s crucial to recognize that SCOTUS’s right-wing justices aren’t the main threat to progressive legislation. According to Noam Chomsky, the main threat is that Mitch McConnell—with a lot of help from President Trump—stacked the federal judiciary from “top to bottom” with young ultra-right lawyers who “should be able to safeguard the reactionary Trump-McConnell agenda for a generation, whatever the public wants, whatever the world needs for survival”.

This is horrifying stuff—the GOP has cemented young ultra-right lawyers into the judiciary, so how will we pass legislation on global heating in order to make sure that global heating doesn’t kill our kids?

These young ultra-right lawyers will be around for a long time. So how will progressive legislation—including legislation that’s needed for survival—make it past this obstacle that the GOP has put in place?

Careening Rightward

People should remember what US politics used to be like—look at this article from the WaPo archive:

• “Guns: A Second (Amendment) Look” (10 May 1995)

Here’s an excerpt from the 1995 article:

President Clinton promotes it. The National Rifle Association preaches it. And pollsters say the public believes in it.

But the judges who interpret the nation’s laws say the Second Amendment to the Constitution does not guarantee an individual’s right to bear arms. In fact, no federal court has ever ruled that the Constitution guarantees Americans the right to own a gun.

In few areas of law is there such a vast gulf between what people think the Constitution protects and what the nation’s judges say it protects. The difference between belief and reality infects the country’s perennial gun control debates and exacerbates tensions after incidents like the 1993 shootout near Waco, Tex., and the Oklahoma City bombing last month, which put new attention on citizen paramilitary groups.

The Second Amendment “has been the subject of one of the greatest pieces of fraud, I repeat the word fraud, on the American public,” former chief justice Warren E. Burger said in a 1991 interview on PBS’s “MacNeil/Lehrer NewsHour.” Burger has said often that the “right to bear arms” belongs to the states, and he has attacked the NRA for fostering the opposite view.

The Second Amendment says, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

The widespread legal and judicial view is that the Second Amendment guarantees a state’s right to be armed—for example, in today’s National Guard.

Let me emphasize this part:

The Second Amendment “has been the subject of one of the greatest pieces of fraud, I repeat the word fraud, on the American public,” former chief justice Warren E. Burger said in a 1991 interview on PBS’s “MacNeil/Lehrer NewsHour.” Burger has said often that the “right to bear arms” belongs to the states, and he has attacked the NRA for fostering the opposite view.

Just to be clear, Warren E. Burger was a conservative chief justice—in 1991 he emphatically referred to the “fraud” that was going on in which people were trying to say that the “right to bear arms” somehow had to do with the individual American’s right to own a firearm.

As the far right careens rightward it seems to them that center-right Democrats are far left—this is an optical illusion. And it’s really odd to talk to right-wingers today who have absolutely no understanding of how far rightward the GOP has moved and how far rightward America’s political spectrum has shifted.

Regarding the rightward shift, it’s shocking to look at global heating—the GOP’s 2008 presidential candidate had a climate program:

• “McCain Differs With Bush on Climate Change” (13 May 2008)

And the GOP’s insanity when it comes to global heating isn’t a funny joke when it means that global civilization will probably collapse—this insanity could terminate us.

Are These Justices Radical Regarding the Federal Government?

There’s a concern that these justices are radical regarding the federal government—see the following 7 January 2022 piece from Kim Wehle:

• “The Vaccine-Mandate Case Is About So Much More Than Vaccine Mandates” (7 January 2022)

Here’s an excerpt:

If Congress is hindered in its ability to employ agencies to fill in the details of its broad mandates, life in the United States could change dramatically. Agencies make rules and regulations affecting stock markets, consumer-product safety, the use and trafficking of firearms, environmental protection, workplace discrimination, agriculture, aviation, radio and television communications, financial institutions, federal elections, natural gas and electricity, the construction and maintenance of highways, imports and exports, human and veterinary drugs, and even the licensing and inspection of nuclear-power plants.

And another excerpt:

If only Congress can pass laws, then thousands of federal laws known as “regulations” could either become immediately unconstitutional or be read so narrowly by courts that they become ineffective.

And yet another excerpt:

the tea leaves suggest that the administrative bureaucracy is in for an overhaul with this Supreme Court majority. Justice Clarence Thomas has taken the position that “certain core functions…require the exercise of legislative power that only Congress can perform.” Justice Samuel Alito has similarly emphasized that “the principle that Congress cannot delegate away its vested powers exists to protect liberty.” And Justice Brett Kavanaugh has quietly endorsed Justice Neil Gorsuch’s opinion that Congress cannot delegate to agencies the “authority to decide major policy questions—even if Congress expressly and specifically delegates that authority.”

Nothing in the actual text of Article I distinguishes between “major policy questions” that Congress cannot hand off to agencies and, in Kavanaugh’s words, “less-major or fill-up-the-details decisions” for which Congress, in his view, can invoke agency support. This distinction is relatively new, devised by judges. If the Court uses some version of this concept to constrain Congress’s constitutional authority to delegate lawmaking power to agencies, it would at the same time be aggrandizing its own authority to oversee Congress’s work—a function established in 1803’s Marbury v. Madison that is hardly self-evident in the Constitution’s text.

Once again, it’s fair to say that the political right’s mantra of judicial conservatism may soon stop at the courthouse doors of this Supreme Court. Buckle up.

So regarding a potential “overhaul” of the “administrative bureaucracy”, the questions are:

• (1) how radical are the positions that Clarence Thomas and Samuel Alito and Brett Kavanaugh and Neil Gorsuch have taken on this front?

• (2) how radical are the positions that Amy Coney Barrett—Wehle’s piece doesn’t mention her—has taken on this front?

• (3) will any radical positions that the right-wing justices have taken on this front actually lead to any real-world consequences?

I assume that there’s a distinction between:

• the extent to which a right-wing justice takes a given radical position

• the extent to which that radical position ends up having real-world consequences

And global heating is the biggest fear when it comes to constraints on the federal government’s ability to regulate—Chomsky said the following about Amy Coney Barrett, since Barrett said some shocking things about global heating:

She not only said that it is “contentious.” She said, “I’m not a scientist. I don’t really know about it.” Unless she is a hermit living in Montana without any contact with the outside world, it is inconceivable that anyone could even be considered for a Supreme Court position who doesn’t know about the most significant environmental issue.

We have to worry about our survival when it comes to global heating—it’s terrifying that Amy Coney Barrett actually said that she somehow isn’t familiar with what’s going on regarding global heating.

Are These Justices Radical Regarding Unenumerated Rights?

There’s enormous outrage and fear and concern regarding the recent bombshell. And this is obviously a major attack on women’s rights, so people obviously regard the attack on Roe as radical in itself before you even discuss unenumerated rights more broadly—take a look at this piece:

• “If the Supreme Court Can Overturn Roe v. Wade, It Can Ban Interracial Marriage” (4 May 2022)

Here’s an excerpt:

By overturning Roe and Casey, America will join only three other backsliding democratic countries in the past 30 years to restrict a woman’s right to abortion. Meanwhile, 59 countries have expanded access.

The opinion of four men and Justice Amy Coney Barrett will lead to a likely prohibition on abortion in 26 states. In Texas, for example, a doctor could go to prison for life if they perform an abortion on a woman who was raped by a family member.

And another excerpt from the same article raises the fear that this is only the very beginning of a much broader assault:

If the court upholds the law, and overturns Roe and Planned Parenthood vs. Casey, which affirmed that the state is prohibited from banning most abortions, the ruling will allow its right-wing majority to zero in on marriage equality and the use of contraceptives, which will be next on the chopping block.

And look at this excerpt too from the same article:

In the leaked draft opinion, Justice Alito justifies his ruling by claiming abortion isn’t an unenumerated right, and “the Constitution makes no reference to abortion and no such right is implicitly protected by any constitutional provision.” Well, same-sex marriage and the right to contraception are also unenumerated rights. The draft opinion assures us that overturning Roe would have no such impact on these other rights. However, by the right-wing majority’s very own logic used to dismantle Roe, these unenumerated rights don’t have any protection. But, hey, moderate Republican Sen. Susan Collins trusts these justices, so we should too!

So there are fears about a much broader assault, but the leaked draft contains the following reassurance:

We emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.

Regarding this reassurance, I urge everyone to read the following piece from Charles P. Pierce:

• “They’re Coming for Griswold, and Obergefell, and Lawrence, and Loving” (3 May 2022)

Pierce responds as follows to the reassurance:

God above, what a crock.

They’re coming for Griswold, and for Obergefell, and for Lawrence, and for Loving, for all I know. I have read too many conservative essays concerning the illegitimacy of a constitutional right to privacy, all of them emerging from the same thickly manured intellectual garden that produced at least four of the justices, including all four of the justices who were appointed by presidents who were elected with fewer popular votes than their opponents. None of the four give a rip for the concept of unenumerated rights. (Justice Amy Coney Barrett wouldn’t even defend Griswold as legitimate precedent at her confirmation hearing.) And Alito’s fig leaf is shredded by its own self-contradiction. If his logic in this draft opinion regarding Roe is sound, then none of the decisions based on a right to privacy are legitimate either.

What Alito’s reassurance does remind me of is the claim within the decision in Bush v. Gore that it was “limited to the present circumstances.” As ProPublica pointed out two years ago, Bush v. Gore has been cited as precedent in nearly 200 cases. Even if I had a scintilla of trust in Alito’s reassurance, which only a fool would countenance, he wouldn’t be able to follow through on it if a state, say, wanted to outlaw gay marriage, or restrict the sale of contraception. Not without sounding like the worst kind of political hack. Which he already is anyway.

So this reaction sums up how little trust people have regarding the reassurance:

God above, what a crock.

I think that it’s very important to look into the “intellectual garden that produced at least four of the justices”—has this “intellectual garden” actually produced essay after essay “concerning the illegitimacy of a constitutional right to privacy”, and if so then shouldn’t we be extremely suspicious about the reassurance in the leaked draft?

Is Pierce correct that you can study the “intellectual garden that produced at least four of the justices” and observe that these four justices don’t “give a rip for the concept of unenumerated rights”? And is it true that “Justice Amy Coney Barrett wouldn’t even defend Griswold as legitimate precedent at her confirmation hearing”?

And to spotlight again the assault on women’s rights, take a look at this piece from Laurence Tribe:

• “The new Supreme Court’s iron fist” (3 May 2022)

Here’s an excerpt:

Some readers of the Alito opinion assume that the legal regime it inaugurates will at least leave states free to protect abortion rights. Not so. Not a word of the opinion, and nothing in its reasoning, limits the ability of Congress to enact a law banning abortion nationwide, invoking the supremacy clause to override state laws more respectful of the rights of women.

So according to Tribe, there’s nothing in the leaked draft that would prevent a nationwide ban on abortion.

Did These Justices Obtain Their Seats Through Democratic Means?

There’s a concern that SCOTUS lacks democratic legitimacy—see this piece from Jon Schwarz:

• “Roe v. Wade Is About to Be Struck Down by the Electoral College” (3 May 2022)

Here’s an excerpt:

According to Politico, the Supreme Court will soon strike down Roe v. Wade on a 5-4 vote.

While the U.S. right has organized for decades in hopes of this result, it would never have come close to success without one factor: the Electoral College. There have been eight presidential elections over the past 30 years, and also eight Supreme Court vacancies. The bizarre reality of the U.S. political system is that Republicans have won the popular vote in just one of the eight elections, but got to choose five of the eight new justices. Of these five GOP picks, four are reportedly voting to reverse Roe.

And Schwarz concludes as follows:

Of course, it’s impossible to know precisely how history would have played out if the United States had a system in which the candidate who got the most votes became president. But polls show that overturning Roe has been deeply unpopular for as long as the question’s been asked. So if the composition of the Supreme Court reflected anything close to the perspective of most Americans, this day would never have come. Now that it’s here, it’s hard to know whether the court will retain any legitimacy. The basic facts suggest that it should not.

So there’s a real crisis regarding SCOTUS’s democratic legitimacy—how can Americans take seriously SCOTUS’s decisions if the “bizarre reality of the U.S. political system is that Republicans have won the popular vote in just one of the eight elections, but got to choose five of the eight new justices”?

There’s a struggle ahead in America—which way America goes will determine America’s fate and the world’s fate as well.