Minority rule: How the Supreme Court upended the lives of millions
Over the past weeks, multiple crises have merged: a crisis of democracy with the most significant attack on voting rights since Reconstruction; a climate crisis with lives and livelihoods upended in the Gulf Coast and the Northeast by extreme weather events and in the West by a stunning fire season; and an economic crisis in which millions are being cut off from Pandemic Unemployment Insurance, even as August job gains proved underwhelming. There's also a crisis taking place in state legislatures with an ongoing attack on women's autonomy over our own bodies. The Supreme Court let a law go into effect that makes abortions nearly impossible in Texas and turns its enforcement over to vigilantes. And then, of course, there's the looming eviction crisis that could precipitate the worst housing and homelessness disaster in American history.
Indeed, the Supreme Court's ruling on the Texas abortion ban was hardly its only horrific decision this summer. Its willingness to end a moratorium on evictions instantly put hundreds of thousands of people at risk of eviction, with tens of millions more in danger in the weeks to come. With an unequal economic recovery, surging Covid-19 cases (thanks to the highly infectious Delta variant), and poor and homeless people disproportionately suffering the effects of fires and floods, this decision could truly prove catastrophic. Nor is it the only one likely to impact poor and low-income communities of color drastically. That stacked court, the Trump court (if you want to think of it that way), is offering a remarkably vivid demonstration of just how connected voting rights, women's rights, immigrant rights, and poverty really are.
President Biden critiqued the Supreme Court recently for its ruling on the Texas abortion case. "For the majority to do this without a hearing, without the benefit of an opinion from a court below, and without due consideration of the issues," he said, "insults the rule of law and the rights of all Americans to seek redress from our courts." And as continued injustices, especially from that court's "shadow docket," have come to light, former Wisconsin Senator Russ Feingold, now head of the American Constitution Society, tweeted, "SCOTUS's increasing use of the shadow docket to issue massive legal decisions is yet another reason why Supreme Court reform needs to be taken seriously."
In reality, the Supreme Court is an institution of minority rule. According to Ari Berman, a voting-rights expert and journalist who has tracked that court for years, "A majority of conservative Supreme Court justices were appointed by GOP presidents who initially lost the popular vote and confirmed by senators representing a minority of the population." As he's also pointed out, "No one has benefited more from minority rule — and done more to ensure it — than Mitch McConnell."
After all, McConnell blocked President Obama's choice for the Supreme Court on the flimsy pretext that it was too close to an election, only to ram through Donald Trump's pick just eight days before the 2020 election when 65 million votes had already been cast. What this amounts to is simple enough: a Supreme Court that doesn't represent the opinions or values of the majority of Americans.
As a biblical scholar and Christian pastor, I find the words of the Bible particularly relevant in a moment like this. Proverbs 22 reads, "Do not exploit the poor because they are poor and do not crush the needy in court, for the Lord will take up their case."
In these ever-less United States, of course, it's not only the Supreme Court that doesn't respect the rights of the poor. Consider housing and the lower courts. In recent studies of landlord-tenant court cases in states across the country, landlords typically won 95% of eviction cases in Oklahoma and Hawaii and, in 2017, 99.7% percent of those in Kansas City. According to the ACLU, "Eviction proceedings historically have been unfair and imbalanced. In the courts, the odds are stacked against tenants: 90% of landlords are represented by legal counsel in evictions, but fewer than 10% of tenants have representation."
Eviction in a Pandemic
Recently, as Ivana Saric pointed out at Axios, a new report from Goldman Sachs predicted significant hardship because of the way the Supreme Court upended the moratorium on evictions. As she wrote, "Roughly 2.5 million to 3.5 million American households are behind on their rents… They owe landlords between $12 billion and $17 billion… Evictions are likely to be 'particularly pronounced in the cities hardest hit' by Covid-19 because they have stronger apartment rental markets."
Even more dire, reports CNBC, "The coronavirus pandemic could result in some 28 million Americans being evicted… By comparison, 10 million people lost their homes in the Great Recession." These predictions come, in part, from Emily Benfer, the chair of the American Bar Association's Task Force Committee on Eviction and co-creator with the Eviction Lab at Princeton University of the Covid-19 Housing Policy Scorecard. As she points out, "We have never seen this extent of eviction in such a truncated amount of time in our history."
Add to that something else: this eviction crisis is happening at a moment when there's already an existing population of 8 to 11 million homeless Americans who have only been thrown into a deeper set of crises during this seemingly never-ending pandemic. Although some homeless families received relief during the pandemic, homeless assistance funding was based on a count of only half a million homeless Americans and so, was woefully inadequate. Worse yet, sweeps and evictions of homeless encampments continued even during this crisis, while the limited protections won by housing activists — including, in some places, hotel rooms for those previously living on the street or in shelters — have, in many cases, been rolled back.
To put the eviction moratorium in perspective: Initially, it was instituted as part of the CARES Act that Congress passed in March 2020. Although limited in its reach and scope, it did indeed protect hundreds of thousands of people from homelessness at a moment when, in some places, landlords were flocking to eviction court in the middle of a pandemic to get rid of tenants. The CARES moratorium expired in July 2020. That September, in the absence of any further Congressional action, the Centers for Disease Control and Prevention (CDC) stepped in to extend the moratorium to December 31st as a public-health measure to prevent an even greater spread of the virus. Then, in January of this year, the moratorium was extended by the new Congress until July when the CDC again intervened to extend it through October 3rd at least in areas where pandemic cases were high.
Many are familiar with the stand Congresswoman Cori Bush took in early August when the congressional moratorium expired. As someone who had experienced homelessness herself, she camped out on the steps of the Capitol to call attention to the looming housing disaster. Her actions, combined with powerful organizing by grassroots groups, called attention to the eviction crisis, but more is now needed.
The average household debt burden has only grown during the pandemic and no legislative action has been taken to relieve such a rent or housing crisis. The stimulus payments, unemployment insurance, and an expanded child tax credit were simply not enough. As a result, more than 10 million households are now estimated to be behind on their rent. Rather than bailing out renters and homeowners by canceling such debts or even efficiently distributing the $45 billion in rental assistance that has largely languished in a bureaucratic hell, Congress failed to extend the eviction moratorium, paving the way for disaster.
Homeless, Not Helpless
Over more than 40 years, while a crisis of homelessness has exploded, a narrative has been popularized that sees it largely through stereotypes. For a wealthy elite that's advanced a generation of neoliberal reforms, it's been critical to cast homelessness in this way — as an aberration on the margins of an otherwise healthy society, rather than as a startlingly visible indictment of a political and economic order in which homelessness and poverty are at the very core of society.
In the late 1970s and early 1980s, major structural shifts in the global economy were accompanied by deep tax cuts, the deregulation of banking and the financial markets, the privatization of public utilities and services, and anti-labor measures. In the midst of all this, homelessness grew, as the government demolished public housing while investing in private urban development projects that fueled gentrification and pushed poor families from their homes.
Up from the streets and out of the shelters, poor and homeless people began organizing themselves into communities of mutual-aid and solidarity. In just a few years, the National Union of the Homeless (NUH) broke into the national narrative, challenging the prevailing notion that its members were poor and homeless because of bad personal decisions and moral failures in their family lives. Instead, they targeted the systems and structures that produced their poverty.
Recently, images of the flooding of Tompkins Square Park when what was left of Hurricane Ida hit downtown New York City received significant attention. Over the summer, the number of homeless people living in that park increased strikingly and neighbors began organizing mutual-aid projects to help the unhoused. Such conditions and projects of survival connect this particular moment to the past — specifically to a time decades ago when homeless and formerly homeless organizers from Tompkins Square first helped form the National Union of the Homeless. In the late 1980s and early 1990s, the NUH would organize 25 chapters in cities across the United States representing thousands of homeless people. Its slogans then included "Tompkins Square Everywhere," "No housing, no peace," and "You only get what you're organized to take" — and they still resonate today.
The NUH was known for coordinating housing takeovers: those lacking housing moved into abandoned, government-owned dwellings in a politicized and organized way. The spectacle of homeless people directly challenging public property in the name of survival was striking. In fact, in the 1980s and 1990s, these bold actions resulted in the union winning the right of the homeless to vote, setting up housing programs run by the un-housed themselves in nearly a dozen cities, and so shifting the national narrative on poverty and homelessness.
In the midst of the present pandemic and the eviction crisis that now goes with it, the National Union of the Homeless is taking to the streets again. Indeed, its leaders know that it will take the concerted action of the poor and dispossessed continually putting pressure on the powers that be for the legislature and courts to do what's right.
After all, history shows that social transformation happens when those most impacted by injustice band together with people from all walks of life and build the political will to push through change. Perhaps this is what Abraham Lincoln meant when he said, "Public sentiment is everything. With it, you can accomplish almost everything. Without it, practically nothing." It's what the Reverend Martin Luther King emphasized in 1968 shortly before his death. "Power for poor people," he said, "will really mean having the ability, the togetherness, the assertiveness and the aggressiveness to make the power structure of this nation say yes when they may be desirous to say no."
How Congress Must Act
I started working with the National Union of the Homeless and other organizations led by the poor in the early 1990s. It was about the time that spell check became commonplace on personal computers. I remember then writing papers and articles on homelessness, which was growing rapidly at the time. But as the word wasn't yet in the spell-check dictionary, my computer tried endlessly to correct me. One reason for that: economic homelessness — people being downsized from their jobs or paid too little to pay their rent — was then a relatively new phenomenon in this country. In the last three decades, however, it's grown so commonplace that most of us consider it both age-old and inevitable.
So, it's worth saying what should be but isn't obvious: that poverty, eviction, and homelessness are not eternal, that life truly does not have to be this way. Although in the recent eviction-moratorium debacle the Supreme Court, Congress, and the White House have all tried to shift the blame elsewhere, solutions do exist to address deep-seated, as well as emergency-induced, poverty and deprivation. After all, the very existence of a moratorium on evictions proves that ending them is possible.
The Supreme Court rationalized its decision by claiming that the CDC had overstepped its authority and that it was up to Congress to resolve the eviction crisis through legislative action. In its majority opinion, the judges highlighted the "irreparable harm" suffered not by the poor but by the association of realtors that brought the case. They wrote, "As harm to the [realtor's association] has increased, the Government's interests [in maintaining the moratorium] have decreased."
Of course, the genuine irreparable harm suffered in this moment by millions of families facing eviction in a country that has more abandoned houses than homeless people should be obvious. At the same time, a court that increasingly denies people the right to vote and women the right to health care and control over their own bodies should be the definition of "harm." A government more interested in placating the real estate industry than ensuring that its people are housed should be challenged.
In fact, at this very moment, grassroots groups have come forward with solutions to just such harm. We would do well to attend to them. They include:
- Making evictions from any dwelling, including cars, tents, and encampments, illegal.
- Canceling the housing and rental debt that has been accumulated during the moratorium period.
- Ending predatory speculation that raises rents and makes housing unaffordable in every state in the country.
- Ensuring living wages and a guaranteed income so every American can afford a decent place to live.
- Protecting and expanding voting rights including for the poor, homeless, disabled, and elderly so people have the right to vote officials into office who will represent the interests of the unhoused, the temporarily housed, and those facing evictions.
- Ending the Senate filibuster that's preventing the passage of bold and visionary policies, including the expansion of health care, the raising of wages, the introduction of new anti-poverty programs, and so much more.
Those facing eviction, those underpaid and excluded, and many of the 140 million people who are poor and low-income can't wait for those in power to act (if they ever do). Grassroots efforts like the National Union of the Homeless, Housing Justice for All, Cancel the Rents, Homes Guarantee, and other networks promoting rent strikes and eviction resistance will continue to organize to ensure that all Americans have a place to live, thrive, and build the sort of society we know is possible.
In early September, the National Union of the Homeless put out a statement for Labor Day in which they wrote:
"Our Union members include autoworkers who spent decades on the assembly lines only to end up in the soup line, who built cars only to end up sleeping in them. Our members include former construction workers and farmworkers who provided real homes and grew food for the world but now can't afford to buy or pay rent in the houses they built or buy the food they harvested…
"We challenge the false narrative, the mythology that we are an 'underclass,' a dredge on society, helpless, deserving only pity or scorn, to be corralled into mass congregant shelters (read: homeless internment camps), and pushed into the 'Homeless Management Information System' just to get a few crumbs at the cost of our dignity and our political rights… We reject the false narrative that our plight is the result of our 'bad choices' when it's really about a system that builds for the rich at the expense of the poor, where everyone who works for a living is only one paycheck, one family medical crisis, one eviction away from becoming homeless… Together we can survive today to build a new, fair, and equitable world tomorrow."
May it be so.
Copyright 2021 Liz Theoharis
Liz Theoharis, a TomDispatch regular, is a theologian, ordained minister, and anti-poverty activist. Co-chair of the Poor People's Campaign: A National Call for Moral Revival and director of the Kairos Center for Religions, Rights and Social Justice at Union Theological Seminary in New York City, she is the author of Always With Us? What Jesus Really Said About the Poor and the soon-to-be-published We Cry Justice: Reading the Bible with the Poor People's Campaign. Follow her on Twitter at @liztheo.
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