If you are one of the many disenchanted on the political left these days, and I’m one, you are extremely disappointed in the latest rulings of the Supreme Court of the United States (SCOTUS). If they only ruled in a way that you disagreed with, your ire would raise but you would begrudgingly accept that they weighed the case and decided in contradiction to your views. Many of their rulings, however, have undone precedent. The concept of stare decisis, meaning that prior decisions generally stay as originally decided, was one that all of the reactionaries on the court said they supported during their confirmation hearings. They merely repeated the status of the rulings at the time and lied by omission, obscuring their ultimate intent to mislead inquiring Senators.* Then they were confirmed, overturned precedent and erased rights and freedoms people built their lives around and upon. Many of the justices also were discovered receiving gifts from those benefitting from their rulings.
In the wake of this judicially induced upheaval of people’s lives, many of us on the political left are outraged and want sweeping changes brought to the court. Expanding the bench is one. There are calls for congressional introduction of a strict ethics code to reign in lavish gifts, like those uncovered to Justices Thomas and Alito. Many of us want impeachment of those same greedy justices. Stricter recusal standards are mentioned. I can’t say I disagree with any of these proposals in principle but what will be gained, even if all of these items are passed?
One of the unfortunate things I suffer from lately is the inability to recall titles. Titles of books, movies, short stories, articles — they all seem to escape me. I’ll remember plot points, locations, quotes, character names, nearly everything but the title. This segue has a point, I swear.
Years ago, I read a book about President John F. Kennedy, and the author and title escaped me. So I Googled and think I found it: The Dark Side of Camelot by Seymour Hersh. It detailed mob involvement in his election, Kennedy’s sexual dalliances and his medical problems at length but those aren’t the thing I’m mentioning now. In it, was mentioned the president in a planning session with his cabinet. They were discussing some point of foreign policy, it may have been the Cuban missile crisis, but don’t quote me. That point is foggy. The men in the room were arguing for a strategy and Kennedy recently finished reading a book. That book said that oftentimes we fight new wars by focusing on the challenges and tactics needed to win the last one. In essence, in every new experience, you’re fighting the last war. He was concerned that they were doing the same thing in this instance.
The time to fight for the shape, ethics and composition of SCOTUS was years ago, long before Hillary Clinton ran for president. It was Hillary that highlighted the stakes of her losing the election, namely TFG getting to name a considerable number of replacements for aging or dying justices, but this problem was decades in the making. The Republican party has been plotting, planning, Heritage Foundation-ing and stuffing lower courts with their idealogues for many years. As these folks gained experience, and the gravitas of more cases under their belts, they also distinguished themselves by how “conservative” they were. From the most reactionary of these, Republicans built their wish lists, bided their time, plotted, planned, obstructed outgoing President Obama and voila! An insurmountable 6-3 supermajority. This particular supermajority believes that you cannot interpret the Constitution for the day you’re in but that you have to look at it and divine the same intent the framers had when writing it. They also say that if a thing, like a right or protection, isn’t expressly written in the Constitution, you cannot imply that it was meant to exist.
So now that Republicans have achieved their majority, one that appears will stand for 15 - 20 years, if not more, Democrats are up in arms to wrest control back. Uhm, ok. How? Unless they have an in with a deity I’m unaware of, one who is willing to cause a significant number of debilitating injuries or deaths among reactionary justices before the 2024 election, this supermajority is locked for a considerable portion of the foreseeable future. Impeachments won’t happen, none are going to voluntarily step down so that Biden can name a progressive and they all have lifetime appointments.
So now what? Ok, pile in here class and listen up! At the risk of being pedantic, here is a simplified, a la Schoolhouse Rock, mini-edition remedial US government review. We have three branches: Executive, where the presidency sits; Legislative, where our Congress is and the Judiciary, SCOTUS. Each branch, in theory, is equal and works as a counterbalance to the others. The Congress writes the laws, the president puts them into action and SCOTUS rules on whether or not legislation is constitutional. Class dismissed. See? I said it was a mini review and I meant it.
For a long time now, the legislature has been content to bloviate for hours in empty chambers for C-Span cameras but not introduce legislation. When questions of rights, freedoms and protections have come up, and the judiciary claims the Constitution doesn’t say, instead of introducing legislation to enumerate what those are, they have been content to defer to the judiciary. Why? Passing the buck is easier and less impactful to your reelection donations. Is birth control and abortion access protected? We can pass an amendment for those rights, but then angry, chauvinistic men who fund us might get mad. Let’s give it to the Supreme Court. Lots of our citizens are killed by gun violence, should we pass a national law that limits the types of guns and ammunition people can have? We could, but then the people who manufacture guns, those who LOVE guns and the people who like to play dress-up like a soldier, but not join our military as an actual soldier, will be mad. Let’s toss it to the Supreme Court.
On and on this happens. Voting rights protections, minority rights, LGBTQ rights, — instead of passing an amendment to make clear that certain rights are explicitly stated, the legislators lean on the Supreme Court to decide and interpret whether or not the Constitution either says rights or protections exist, implies it by its silence or denies it in its silence. Yet, many of the decisions of this SCOTUS do not reflect the will or desires of the majority of the people. We are in 2023 and most of their decisions fit the thinking from 1823.
Time to move on from the Supreme Court. For a while it was a reliable and generally fair lever to use to move policy towards fairness and the inclusion of more people in the rights and protections of the Constitution. This is no longer the case and no amount of whining, whinging, hand-wringing, marching or protesting is going to change it. Other than some unforeseen misfortune to reactionary members of the court, this is the gang we’re stuck with.
It is time for Democrats, and progressives who may not identify as Democrats, to change tactics. Time to stop fighting a new war by using the battle plans that worked in the past. The landscape has changed and so has the opponent’s armory. In times past, Democrats had as good a chance as not for the court to rule in their favor. Lately, other than a few miracle decisions occurring conveniently on the heels of Thomas’s and Alito’s The Trip is Right showcase news, most of the decisions have rescinded rights codified in earlier decisions.
If the SCOTUS will only rule that something is constitutionally included or protected because it is expressly stated in the Constitution, state it there. Use the legislature to pass laws at the federal level that say clearly that thing is a right, is included and protected. Once it is passed, it is now constitutional. Justices are appointed for life but Congresspeople are elected every two or six years. Democrats and progressive independents must run for Congressional seats, and Democratic and progressive independent voters must vote them in, in an insurmountable majority. That majority can pass laws without the usual nonsense, procedural games or plainly obstinate obstruction by simpletons like Senator Tuberville of Alabama.
Finally, and most importantly, once a congressional majority is achieved, immediately pursue the policies that the majority of Americans, both Democrats and Republicans support and write them into law. FULL SPEED AHEAD! No stopping, no appeals for bipartisanship, no concern for optics. Were Republicans concerned about bipartisanship when they denied Obama the constitutional right to name a potential SCOTUS appointee months before an election, but slammed through Amy Coney Barrett weeks before the next election at a speed no stopwatch can measure? Did they strive to appeal to Democrats better angels when ramming through their deficit exploding 2017 tax cuts for the rich? Are they thinking of the good of the nation and cooperating on filling key governmental positions, including military appointments and promotions that ensure the nation’s safety and military readiness. No, no and no.
Congressional and judicial reactionaries have worked in concert to drag this country back to a horse, wagon and outhouse age, when the majority of the country likes cars, electricity and indoor plumbing just fine. Democrats enacting laws for unimpeded healthcare, the obscenely wealthy paying their share of taxes, equal rights, protections and opportunities, are not leftist or communist, they’re American. Those stands are the things the majority of this nation wants, they poll popularly, and should Democrats get an unquestioned Congressional majority and retain the presidency, they should enact those at a speed of Mach 6.
Republican reactionaries are bound to whine but when do they not? They’ve set the terms of the new battle landscape. Now that those rules of engagement are set, once you get the advantage, !#$% ‘em.
*An earlier version of this piece, when referring to the justices hearing responses, said “They lied.” They did not perjure themselves, but misled inquisitors with their answers. A sincere thank you to
for kindly correcting my understanding and my statement. Additional thanks to her for providing valuable insight into the respondents’ answers and further clarification about their reasoning in the cases cited above. I’m extremely grateful.
You should run for office.if I was still in NY I would without a doubt it's for ya.
You are so right.
Peace....T
The thing that bugs me most is the DISHONESTY of their opinions. Look at the Bremerton Coach case that said he just "prayed silently on the sidelines" while the dissent posted a PICTURE of him in mid field in a huddle with the whole team. Look at Dobbs, going on about a definition of human life that is purely religious, and citing an actual WITCH HUNTER to support that. Look at the stupidity of accepting standing in the student loans case.
Most of all, look at creative 303. In fact the owner did not actually SAY she wanted to explicitly reject gays--or at least the court, in FN 5, denied they were basing their decision on such a statement. So they came up with a "holding" that the state cannot "force" someone to sell a product that disagrees with their religious belief. Thing is, that has been the law ALL ALONG. No one has EVER claimed that a custom hijab maker has to make yarmulkes. But in their reasoning they left the door open for interpretations that you CAN openly discriminate, and those interpretations will be rampant.
If she was legally able to sell the website version of a hijab maker, there was no imminent threat of administrative action to allow her standing as the 10th Circuit did. But the court just accepted that standing.
The justices didn't actually "lie" about their into to follow precedent. If you look at what they said, they dodged the question. The senate, including above all Susan Collins, just heard what they wanted to hear.
Sometimes precedent DOES need to be challenged--Plessy vs. Ferguson is an example. But there need to be damn good reasons. Citing a particular religious belief as your reason is damn bad.