When I think about our current predicament in the United States, the lyrics of the late, great Amy Winehouse come to mind, “What kind of fuckery is this?”
A catastrophe looming on the horizon will be more devastating than any airborne virus. COVID-19 has been the most catastrophic medical and economic crisis our country has experienced in a century, but this other crisis destroys even the illusion of maintaining our democracy. The principles, institutions, and norms that were supposed to protect us from attacks against our democracy have been exposed as inadequate to fend off the concerted efforts of malicious actors. The cast of villains is long but let’s start with the courts.
Republicans have infested our Supreme Court and the lower federal courts with people that have the potential to dismantle democracy for the next generation. The Republican Party has unleashed right-wing activist Jurists onto our courts for the primary purposes of protecting plutocrats, racists, and religious zealots. The current Republican wing of the Supreme Court has a mission (1) to empower predominantly White property owners (sound familiar?), (2) weaken and destroy the separation between church and state, and (3) render citizens, especially Black citizens, defenseless to fend off this injustice by suppressing their right to vote and casting doubt whether that vote would be counted. Let’s start calling a spade a spade. John Roberts has had an agenda to decimate voting rights and the Voting Rights Act of 1965 since he arrived in Washington to clerk for Rehnquist in the early 1980s. His cynical umpire analogy used during his confirmation should evoke chants of “Kill The Umpire” (figuratively) based on his body of work as a Chief Justice.
Clarence Thomas is a walking-talking posterboard of corruption and conflicts of interest. Too bad “Me Too” wasn’t around back in 1991. It was disgusting and despicable to see him and the Republicans fend off legitimate complaints about his suitability for the Court by misappropriating the image of “Black bodies swing in the southern breeze” (Billie Holiday). I will also note that in his first 25 years, he had never written an opinion for the majority. You blew this one, Joe.
Samuel Alito, who, according to scotusblog.com, concurred with Antonin Scalia 86 percent of the time recently backed up over the Voting Rights Act of 1965 after Roberts committed a vehicular assault on the landmark legislation. The decision in the Brnovich V Democratic National Committee case has neutered one of the last tools available to voting rights advocates. Roberts’s rationale for disabling Section 5 of the Civil Rights Act of 1965 made as much sense as a Facebook posting from a QAnon fanatic. According to Roberts and his band of right-wing activist justices, racism is no longer an issue. We can dispose of the requirement of pre-clearance of changes to states voting systems. Look, we elected a Black President. These two decisions super-charged Republican legislatures’ efforts to put laws in place that create obstacles and barriers to their right to vote. Voter Suppression and Subversion are the goals, and the far-right activists on the Supreme Court are part of this attack on a pillar of democracy.
Then we have what I call the “Trump Trio,” Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. The shameless group of Justices appointed by a lunatic President. Gorsuch is an illegitimate appointment to the Supreme Court. According to norms and precedent, this was a political hijacking of a Supreme Court appointment that belonged to President Obama. Then we have Brett Kavanaugh, who, despite allegations of rape, apparent gambling issues, and potentially perjuring himself in testimony to Congress, still sits on the highest Court in the land. Any one of these allegations makes him unfit to rule on issues that impact our democracy in over 300 million Americans. Finally, we have Amy Coney Barrett, who I would say should be ashamed of herself for accepting the nomination less than two weeks after Justice Ginsburg’s death. She accepted it despite being aware that the process of her nomination not only flew in the face of what Mitch McConnell declared when it came to Judge Garland’s nomination, but it also was a despicable display of disrespect and ambition.
As perilous as things may seem, there are things within our grasp that could reverse this freefall from democracy. With all due respect, Justice Breyer, you must retire. Your term on the Court has been in Admiral role one, and we thank you for that, but I disagree with your contention that the Supreme Court is not a highly politicized institution. Practically every case adjudicated by the Supreme Court is heavily influenced by political ideology. I will say that a significant difference between the Republican Justices and the Democratic Justices is that the Republican Justices don’t give a shit about protecting our democracy or improving the lives of the citizens that are affected by their decisions. Then they feign righteous indignation when you expose that their dedication to originalism is nonsensical and a selective one at that. The Founding Fathers believed that corporations should serve a minimal and temporary role in our country’s development and governance (What The Founding Fathers Really Thought About Corporations, Justin Fox, Harvard Business Review). If they were so devoted to originalism, wouldn’t the result in Citizens United versus Federal Election Commission turned out differently? Yeah, originalism, my ass.
There is nothing sacred or magical about having nine Supreme Court Justices. As I proposed in an earlier article, I believe we should expand the Supreme Court to as many as 27 Justices. The Court would randomly select Nine Justices each term to review that session’s cases. Consultations with non-participating Justices would be encouraged. This is not packing the Court. It would be modernizing the Court while also combating the political agendas that influence so many decisions. I’ve said it once, and I’ll repeat it, lifetime appointments do very little to shield justices from influence. It potentially does just the opposite. Human nature being what it is, an individual is liable to say, “why should I regulate my behavior if I’m shielded from consequences for that behavior?” In some ways, it mirrors the debate about qualified immunity for police. They’re practically bulletproof.
It is widely supported that Congress has the authority to expand the size of the Supreme Court. It is also in their power to institute laws such as the John Lewis Act and the For The People Act to ensure that voting rights are not obstructed. The legislation will restrict dark money contributions. It would also push back on the influence of corporate donations and outlaw gerrymandering. The primary issue standing in the way of achieving any of this is the dedication to a Senate rule that was enacted and utilized to block civil rights legislation. Democratic Senators could be the heroes of this story, but will they? It is entirely in their power to arrest this steep descent into the abyss. If they don’t, instead of being the heroes of this story, they will be the villains.
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