How SCOTUS wiped away progress in a single term
In this term alone, the US Supreme Court has stripped women (and anyone who can get pregnant) of their right to life and liberty (Roe). It has stripped states of their authority to regulate firearms (Bruen).
The court has hurdled over the wall separating church and state to create conditions for the rapid expansion of racial segregation (Carson). It has established a religion in public schools (Kennedy).
It has enfeebled the right to know one’s rights upon arrest (Vega).
And it has ruled that the Environmental Protection Agency does not have proper authority to protect the environment (West Virginia).
In one term, the court’s rightwing supermajority has undone a lot of what the 20th century had seen done in constitutional law. The court has unraveled the social fabric that many (white) Americans came to take for granted – that morality matters, that justice prevails and that history’s forward momentum reliably manifests a more perfect union.
This court’s rightwing supermajority has demonstrated to anyone who once believed that social and political progress, once done, can’t be undone, that social and political progress can, in fact, be undone.
If the latter half of the 20th century can be described as the great expansion of individual liberties – from 1954’s Brown v the Board of Education, which overturned “separate but equal,” thus outlawing discrimination, to 2015’s Obergefell v. Hodge, which overruled the Defense of Marriage Act, thus establishing same-sex marriage rights – the first half of the 21st century, all things being equal, might be described over time as the great recession of individual liberty.
It’s important to note that 2015 was not an arbitrary end.
During that year, operatives of the Russian government conspired to wage cyberwarfare against the candidacy of the Democratic nominee of the 2016 presidential election, thus aiding and abetting the GOP candidate. During that year, the Senate majority leader led an effort to breach the separation of powers in the federal government to violate the right of judicial appointment of the incumbent president.
That same leader, Mitch McConnell, stood aside while knowing that Russian operatives were sabotaging Hillary Clinton’s campaign, while knowing that foreign interference would advance the Republican Party’s long-sought goal of bringing the federal government to heel.
McConnell reiterated this week that holding up Merrick Garland’s confirmation was the single greatest choice he ever made. No. His single greatest choice, meaning the one with the most impact on our country, was deciding that a hostile foreign enemy, Russia, was the GOP’s friend, the same enemy committing genocide in Ukraine. If he hadn’t sided with Putanists, we’d be in Hillary Clinton’s second term.
Therefore, it should not be surprising that the previous era of rapidly expanding individual liberty ended with the GOP’s hostile takeover of the Supreme Court. After World War II and throughout the Cold War, political elites in Washington established the idea in the public’s mind that Americans constituted one nation. We were one people. We were no not “these United States.” We were “the United States.”
Thanks to the court’s rightwing supermajority, we are now returning to the time of these United States. With respect to public policy, the US has always suffered under a patchwork system. But after this latest term of the Supreme Court, that patchwork pattern will almost certainly proliferate, perhaps to the point where no one can speak for the whole. Already, Joe Biden is working against doubt on the global stage that he represents one nation on account of this court dissolving the glue that once held the states together – equality.
We don’t usually think of equality as the force that binds us to each other. That’s usually reserved for “culture,” especially the mythical “Judeo-Christian” or “Western” values that rightwingers love, which is a politically correct way of favoring solidarity among white people. In the interest of “social cohesion,” white-power propagandists like Pat Buchanan, Steve Bannon and Ben Shapiro often demand that the southern border be closed, that state laws suppress minority voting rights and that white women give birth to more white babies.
Real social cohesion arises from political equality. It transcends the “cultural” factors that inhibit Americans, especially white Americans, from finding common cause with nonwhite Americans. Real social cohesion is the result of a federal government authorized by federal law to enforce political equality by protecting individual liberty.
With Roe as the law of the land, two “culturally” different women were subject to the same law as well as equally entitled to the same degree of access to abortion. Without Roe, one of these women is, according to the law of her state, seeking health care services while the other, according to the law of her state, is committing murder.
They are unequal.
They are separate.
In that sense, we are not only returning to the time of “these United States.” We are returning to the time of “separate and unequal.” We are returning, I would say, to a two-tiered system of law in which white elites are entitled to protection while everyone else is entitled to nothing – except perhaps the blunt end of law enforcement.
As long as political equality held us together, it made sense for the Democrats to advance their interests and goals from a high perch. But now that political equality’s power to bind us together – to make us whole – is unraveling due to a rightwing court, the Democrats will need to reconsider the posture they’ve taken for a half century and more. They will need to reestablish themselves at the state level.
And they need to do it soon.
The Supreme Court is prepared to hear a case in the fall that could, in the most basic terms, give state legislatures the authority to ignore state law and state court rulings on state constitutional law.
With such power, Republican-controlled legislatures could, in theory, choose to reject the outcomes of presidential elections, assign “alternate” slates of electors and throw out the will of the people. They could make Donald Trump’s dream of insurrection come true.
And thanks to this court, it would be nice and legal.
The Democrats, since the mid-20th century, have advanced their interests and goals mostly from the top down. But in this new era, in which political equality is unraveling as a result of a Supreme Court gone rogue, the sooner they bring the fight to the states, the better.
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