A Supreme Disappointment

I have written extensively about the Supreme Court in the past.  I criticized the dehumanizing "money is speech" decision that has led to ludicrous amounts of dollars choking our political system and privileging corporations as people.  

I dreamt of a liberal Court because I think liberal courts are more conducive to the needs of our changing, contemporary society than conservative ones, which basically try to slow the pace of legal and political change at a time when such change is accelerating.  

The most important vote by the Court during the span of this blog was its decision on the Affordable Care Act mandate (posted in two parts here and here).  While I think Obamacare is bad policy, I also believe the Court's interpretation was correct.

But I haven't written anything about the disappointing Right-wing turn of the Court, with the tragic, untimely death of Ruth Bader Ginsburg, which allowed Donald Trump to appoint a total of three Justices to the Court for a 6-3 conservative majority.  This is probably the most damaging and lasting of all of Trump's many failures during his term as our so-called president.

Ginsburg was a brilliant liberal jurist; exactly what a nation facing racial issues, environmental issues, gender issues, and future issues regarding the use of technology for human longevity and for artificial existence needs.  Her replacement, Amy Coney Barrett, is no less intelligent and informed in the constitution.  But she also is the polar opposite of Ginsburg.

She represents a step backward in terms of interpreting the framework of our forefathers.  The continued advancement of human rights and how our society works could well be stalled in favor of "the way things used to be."  The constitution will now be largely interpreted in terms of States' Rights, with preference for Christian values over secular values.

This will not stop the inevitable unfolding of American culture into a future that is radically different from our past.  But it will lead to a number of decisions down the line that are disconnected with contemporary life.  It will lead to a constitution that is more of an antiquated drag on evolution than an instrument that is alive and enabling of the unstoppable future.

So, over time, this will create problems at the level of society as a whole.  Conservatives obviously hope the Court will now, somehow, overturn Obamacare, halt any possible climate change legislation, undo gay marriage, and, most especially, make abortion illegal again.  The Court is staffed to take American back constitutionally to the 1950's when pollution was rampant, secularism was often condemned, poverty and disenfranchisement were constitutionally enabled.

This is now the most conservative Supreme Court in history, exactly the opposite of what I had hoped.  Since 1960, a total of eight liberals and 15 conservatives have been appointed to the Court.  This reveals a disturbing trend that does not reflect the overall direction of American society.  For example, the Voting Rights Act of 1965 would probably be held as unconstitutional today, allowing the States to effectively discriminate and suppress voter participation just as they did before the Act's passage.  Conservatives would love to see this law overturned in the years ahead, so that the votes necessary to keep people like Trump out of office won't be cast in the first place.

The Court has always been political to some extent. Never more so than in 2016 when Merrick Garland's nomination was held up nine months by the Republican controlled senate.  The Court position remained unfilled until Trump became president and began his conservative choices with Neil Gorsuch.

The politics are clear when the death of Ginsburg led to the Republican controlled senate replacing her seat with the conservative Barrett in near-record time of a matter of a few weeks.  No clearer contrast nor evidence of the Court's political nature can be found than comparing how the Republicans failed to move on Garland while they raced to get Barrett seated under almost exactly the same circumstances.

At the time of Garland's nomination, Mitch McConnell stated: “The American people should have a voice in the selection of their next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president.”  This sounds like McConnell was acting on principle.  But that was not the case.  The voice of the American people was irrelevant in the case of Barrett, who would have never been appointed by president-elect Biden.  Political principle is a moveable feast, a matter of convenience.

In the Court's most recently completed term there were no fewer than 14 decisions by a vote of 5-4, with only two of them in favor of the liberals.  So, in a sense, the Court has been conservative already.  Now, it will be even more so.  No liberal positions are likely to win their hearing in Court today.  Effectively, liberalism is over in terms of the federal judiciary of the United States.  As I said, this is Trump's most damaging legacy.

I've already mentioned several broad areas where this will lead to a regressive Court as American culture continues to progress.  Others include: Affirmative action, immigration, discrimination on the basis of religion (religion favored over secularism), and police rights.  The Trump Court will now make sure that no new rights are bestowed upon anyone and, as much as possible, existing rights will either be curtailed or the legal power for them will be shifted away from the central government back to the States.

In most matters I am in favor of States' Rights.  I believe gun control, for example, should be at the discretion of the States.  After all, the Second Amendment mentions States as the basis for "the right of the people to bear arms."  It is intended to aid the formation of State militias.   That's what our constitution actually says.

But States' Rights is not a conservative thing for me.  States also have the right to control marijuana as they see fit.  Federal laws should not apply there.  The strength of the States' Rights system is basically Federalism.  We can have 50 different ways to approach a problem.  States can learn from one another and alter their courses appropriately.  It is a dynamic system of governing.

But some things should not be dynamic.  They should be unilateral. Environmental policy, for example, affects all States and should be handled at the Federal level.  Interstate trade is another area where a central governing authority is necessary.  These are among the cases where we most need the US Supreme Court to ensure best practices for our democracy are kept across all 50 states.  This is why I prefer a liberal Supreme Court.  It offers the broadest possible interpretation of the constitution and, therefore, the most versatile and applicable to a changing world.  The conservative approach favors Federalism but it also favors a narrow reading of what could become an antiquated text.

A liberal interpretation of the constitution is the most applicable to our reality.  Is the Court going to take away abortions?  Is it going to take away the broader definition of "marriage" in favor of the Judeo-Christian one?  Most likely, it will merely hand these circumstances back over to the States.  But, if there is a full reversal of, say, gay marriage in the United States when most of the civilized world already legally accepts it, that will be a step backward, obviously.  

If you take enough steps backward with our constitution and the world keeps becoming more inclusive, more diverse then it will only serve to make the document ultimately irrelevant.  Outside of Federalism (where conservatives, say, want big government to outlaw abortion, period) a conservative interpretation of our constitution nails it to some past and fading value system.  

It will take a liberal Court to keep the document alive because it is not, as many might want to believe, an eternal text.  Every nation transforms sooner or later, even the oldest nations like China.  It is the way of history.  You might hate that historical fact but you can't stop the tide of history.  So my goal in life now is to live long enough to see a liberal majority return to the Court.  I plan on living a looooong time.