gracchusdixit

The fragile political and social consensus that has precariously held our country together for decades may soon be torn apart, with consequences that could endure for generations.  If so, the blame will fall squarely on the conservative clique—though “cabal” might be the better word—that now controls the Supreme Court of the United States.  Thanks to that cabal, the court is poised to eviscerate or abolish Roe v. Wade; quash voting rights, ensuring that Republicans will exercise autocratic power in perpetuity; end affirmative action, reinstating white privilege as the litmus test of racial justice; hamstring the authority of the federal government to protect the public health; stifle the ability of states and municipalities to rein in gun violence; and all but eliminate the most basic environmental protections.  As to combatting COVID-19, well, you can forget about that.  To quote Samuel Alito, who, with the possible exception of Clarence Thomas, is the craziest of the right-wing radicals on the court:  

The pandemic has resulted in previously unimagined restrictions on individual liberty…it is an indisputable statement of fact that we have never before seen restrictions as severe, extensive, and prolonged.

It would seem that Alito’s view of “previously unimagined restrictions on individual liberty” does not include the Palmer Raids, the Alien and Sedition Acts, the incarceration of Japanese Americans during World War Two, the anti-communist witch hunts of the McCarthy era, the massacre of innocent Vietnamese civilians at My Lai, the CIA’s criminal program of torture at Abu Ghraib, or Guantanamo.  Either Samuel Alito is ignorant beyond belief or morally depraved.  In either case, he is manifestly unqualified to serve on the Supreme Court of the United States.   

None of which, of course, means that he and his right-wing co-conspirators on the court are politically stupid.  As they rip our democracy to shreds, you can be sure that they will justify their depredations by trotting out several disingenuously seductive arguments:

First, they will claim that they are merely acting as impartial arbiters of the constitution and the law, without regard for partisan political considerations.

Second, they will assert that they are exercising an authority uniquely vested in the Supreme Court, which is to check the unconstitutional excesses of the other branches of government.

Finally, they will invoke two pet theories of constitutional interpretation, “originalism” and “textualism,” both of which were championed by the feverish judicial imagination of the late Antonin Scalia and have since become holy writ on the political right.  

It would be bad enough if these spurious arguments were accepted solely by the blinkered ideologues who read The National Review or the editorial pages of The Wall Street Journal.  Unfortunately, they have also been swallowed by far too many left-leaning bien pensants who earn a living by telling the rest of us what to think.  Their tacit, sometimes explicit, acceptance of these bogus arguments makes them all the more difficult to oppose.  But oppose them we must.

To begin with, the notion that the Supreme Court is an “impartial” arbiter is preposterous, and those who make this claim are either naive or duplicitous.  The duplicitous include the current chief justice, John Roberts, his right-wing confrères on the court, and just about every Republican politician in the land.  The naive, alas, include more than a few of the otherwise shrewd founding fathers.  To cite but one example of the latter, in the Federalist Papers, Alexander Hamilton made this breathtakingly gullible pronouncement: 

It may in the last place be observed, that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is, in reality, a phantom.  Particular misconstructions and contraventions of the will of the legislature, may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. 

Those words would sound quaintly innocent today, were it not for the fact that the Roberts court is strangling our democracy to death, one lethal twist of the juridical knot at a time.  

And yet, this shouldn’t surprise us.  At various times in its disreputable history, the court has supported slavery and segregation; has denied, not only the citizenship, but the basic humanity of African-Americans; has upheld the right of employers to terrorize their workers, all the while denying those workers the right to join unions; and has done everything in its power to prevent the federal government from trying to rescue the nation from the economic calamity of the Great Depression.  Not only has the Supreme Court of the United States never been “impartial,” it has been blatantly partial from day one, and its political bias has tilted sharply to the right.  

Whatever that political tilt, the more important point is that the Supreme Court exercises too much power in our public life and far more power than it is constitutionally entitled to.  Although the principle of “judicial review” (legalese for the court’s presumptive authority to block decisions made by the two other branches of government) is now taken for granted by nearly everyone in our political establishment, this notion is a complete fabrication. 

The Constitution of the United States defines the authority of the three branches of our government clearly and specifically.  Article I dedicates 2,271 words to the legislative branch; Article II spends 1,075 words on the executive branch; and Article III sums up the judiciary, including the Supreme Court, in a mere 377 words—which tells you all you need to know about the relative importance accorded to the three branches by the founders.   Nowhere in the 377 succinct words of Article III does the phrase “judicial review” appear; nowhere is there even a hint that the Supreme Court has the authority to impose its will on the other branches of government or to preempt their decisions.

Those who assert the preeminence of “judicial review” routinely invoke supportive quotations drawn from the letters, speeches, and writings of the founders.  For every quotation supporting the supremacy of the court, however, countless others can be found to argue against it.   Most of what the founders had to say about “judicial review” was, in any event, said after the constitution had been written, with the purpose of securing its ratification by appeasing the slave states of the South, where the fear of the central government in all its parts ran deep, as it does today.

The fact remains that the founders were sufficiently learned and articulate to have stated their intentions, not after the fact, but in the constitution itself.   If they had truly intended to give the Supreme Court a veto over the decisions of the other branches of government, they could easily have written that authority into the constitution.  That they did not, cannot magically be dismissed by any amount of ex post facto rhetorical prestidigitation.

The tough-as-granite truth is that the Supreme Court granted the power of “judicial review” to itself, in what can only be described as a breathtaking usurpation of authority.  This constitutional coup d’état occurred in 1803, when the court handed down a decision in a case called Marbury v. Madison.  Not only was the case itself politically fraught, but John Marshall, the chief justice at the time, was as politically entangled as a judge could possibly be.  Although Marshall claimed that this decision was grounded in “iron logic,” Marbury was little more than a slippery quicksand of tautological arguments and circular reasoning.  That it continues to be given deference today, 200 years later, is one of the most egregious examples of intellectual folly in history.  

Even if the Supreme Court did have the authority to impose its views on the other branches of government, the two theories of constitutional interpretation invoked by conservatives—“originalism” and “textualism”—would be no less flimsy than the false logic unpinning Marbury.  Indeed, these “theories” have never been anything more than a specious pretext for advancing the preordained agenda of the political right, little of which actually appears in the “text” of the constitution as it was “originally” written. 

The actual language of the 1st Amendment, for instance, not only guarantees religious freedom, it prohibits the “establishment” of any particular religion or religious creed.  The actual text of the 2nd Amendment says nothing whatsoever about an “individual” right to own guns.  And the actual words of the 15th Amendment declare:  “The rights of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”  

You can be sure that the conservative cabal that now controls the Supreme Court will evade, ignore, or analyze that language away as they pursue their agenda..  You can be equally sure they will do everything in their power to pretend that they are precisely the opposite of what they truly are—political hacks, ideological zealots, and moral criminals.  They have conned us long enough.