Tag Archives: Supreme Court

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.

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.

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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.

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.