The GOP legislative agenda may be stalled, but they shouldn’t worry—over at the SCOTUS, it’s full steam ahead with implementation of their fascist platform. We’ve recently seen the spectacle of Mitch McConnell and Neil Gorsuch taking another victory lap—they know what’s coming. Gorsuch knows the score—Trump proved that ethics don’t matter. And even if they did, Gorsuch also knows he can rig the rules so that only Republicans can be elected. Sociopaths like that believe there is no such thing as right and wrong—it all comes down to what you can get away with.
As Michelle Goldberg brilliantly explained in the NYT recently, the U.S. is barely a democracy anymore. And to the Republican Party, which has essentially become a neo-fascist cult of criminals, that’s exactly as it should be. And this upcoming term, the five Republicans on SCOTUS have the power to administer the coup de grace, and essentially make elections irrelevant. Consider:
Democracy on Life Support—can it survive the political equivalent of stage IV cancer?
The case of Gill v Whitford, probably the most important case of the term—upholding the partisan gerrymander will essentially lock Republicans into power forever. The numbers don’t lie—with current maps, Democrats can’t win back the House unless they win *at least* 54-55% of the popular vote, thanks to gerrymandering. We have to win elections to change the gerrymander—which of course has basically made it impossible for us to win elections. To which Neil Gorsuch would say: I know, right?! Hahahahahahahahaha!!
Hugh Janus v AFSCME, with apologies for the descent into middle school humor. Kill off labor unions and thereby destroy one of the Democratic Party’s most important constituencies and ground games. It’s no coincidence that blue states tend to be union-friendly, while so-called right-to-work states tilt heavily Republican. We saw this before—Wisconsin was a swing state, with a slight blue tint. Then Scott Walker destroyed the unions and Democrats haven’t been able to win anything in that state since. Sure, Obama carried the state in 2012, but it’s continued lurching hard right with no sign of reversal. Tammy Baldwin is more endangered in 2018 than Scott Walker, who is virtually unbeatable.
Masterpiece Cakeshop, granting conservative Christians the right to discriminate against the LGBT community, eviscerating virtually every non-discrimination law in existence. This is a logical extension of Hobby Lobby.
Ohio’s voter purges, which of course targeted Democrats/black voters much more than Republicans.
These cases are shaping up to be the final nail in the coffin of our anemic “democracy.” We all can see the implications—basically they’d entrench conservative white Christian power for the rest of our natural lives and longer. That, of course, will just be the start—they’re gearing up to neuter federal agencies, declare any liberal legislation unconstitutional, etc. They have the power to make it completely impossible for Democrats to win elections—and then, if the Democrats accidentally win one, they won’t be allowed to govern.
There are 3 “justices” who I could picture endorsing anti-Muslim or anti-black genocide if the GOP filed a brief on the matter. Then there is John Roberts. Think of him as Jeff Flake or Ben Sasse or Lindsey Graham—somebody who puts on an air of respectability, tut-tuts about the Donald, but always votes the party line.
So, the fate of democracy rests in the hands of one 81-year-old Republican—Anthony Kennedy. Do we get fair districts, or does the GOP get to stay in power forever despite losing the popular vote? Do we keep a secular, pluralistic society, or do conservative Christians get to impose their religion on everyone else, indefinitely? How about other GOP vote suppression tactics? All up to him. He alone will decide whether America can survive and bounce back, or whether it will become a corrupt, fascist dystopia like The Handmaid’s Tale or Brave New World.
And initial signs are not encouraging—he voted to stay the rulings against the Wisconsin and Texas gerrymanders, indicating he sees nothing wrong with them. He voted in favor of Trump’s Muslim ban. He voted previously to kill the unions, so they’re dead, for all intents and purposes, unless a miracle occurs and he changes his mind. The very fact that SCOTUS took up the religion-as-license-to-discriminate case is a bad sign—no lower court anywhere had ruled in favor of the religious bigot, and in fact SCOTUS itself had declined to hear a virtually identical case back in 2014. Something happened in the meantime to change somebody’s mind.
Ian Millhiser: Lose our independent judiciary or our democracy?
Which brings us to Ian Millhiser’s depressing, and masterful, piece in ThinkProgress. Millhiser has written extensively about the Supreme Court, including a book sharply critical of the Court’s history: www.amazon.com/… In his recent article, Millhiser goes into more detail about the problems I’ve described, starting with Gorsuch’s flagrant flouting of judicial ethics:
“On Thursday, Gorsuch will speak to a conservative group at Trump’s D.C. hotel. By headlining this event, Gorsuch will personally enrich the very man who appointed him to his lofty position. And he will enable the very mechanism that allows Trump to profit off the presidency. It is unlikely, to say the least, that conservative groups favor Trump’s hotel as a venue because they are fond of its $24 cocktails.
...
“But even if Gorsuch’s actions don’t violate any explicit prohibition, they are certainly bizarre. Judges typically do not spend their early months on the bench conspicuously doing favors for the political actors who helped place them there. As the Atlantic’s Garrett Epps writes, “having decided to accept a nomination so befouled by politics, Gorsuch might have displayed a sense of humility.” Instead, “he will not even pretend to care about how the losers in the process see either him, or the Court.””
I’ve italiczed because block-quoting won’t work properly. I’d only add: most judges also aren’t malevolent sociopaths, and Gorsuch doesn’t have to care. He’s shown time and again his utter contempt for democracy, and has the power to destroy it once and for all. The only real difference between him and Trump is mouth control.
Millhiser continues, addressing the impending demise of democracy:
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During the Supreme Court term that begins Monday, justices could either end the era of partisan gerrymandering or deeply entrench it. They could breathe life into what remains of the Voting Rights Act or gut the law even further. They could dismantle much of the Democratic Party’s grassroots infrastructure.
Gorsuch, along with four of his fellow Republican appointees, have the power to set into motion a downward spiral in which the Supreme Court enhances the GOP’s ability to win elections, thereby entrenching the Court’s Republican majority — and undermining the legitimacy of what’s become an increasingly partisan institution.
Gorsuch owes his job to a fundamentally undemocratic system.
The man who appointed him won nearly 3 million fewer votes than the winner of the popular vote. The senators who opposed Gorsuch represent over 18 million more people than the ones who supported him. Meanwhile, President Barack Obama, a man who won two popular elections, did not get to fill the seat that Gorsuch now occupies.
So there’s a devilish symmetry about the fact that Gorsuch is likely to spend his first full term on the Court fighting to make America even less democratic.
Can’t argue with any of that. Millhiser later adds:
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It is reasonably likely that Wisconsin’s voter ID law cost Hillary Clinton the state. It is also possible that such laws could reelect Donald Trump, if the Supreme Court allows them to stand.
And if Trump retains the White House, that means more Gorsuches — possibly as many as three or four more. A majority of the Court could be stocked with young, die-hard Federalist Society stalwarts. And, at that point, it may not matter much who wins future elections.
Emphasis mine. It won’t matter—because any liberal law enacted will be immediately challenged and struck down by fascists who see no difference between a Trump-Koch dictatorship and the Constitution. Remember, the Constitution is what the judges say it is. With 5 votes on the Supreme Court, you can do whatever the fuck the you want.
Millhiser helpfully provides some details:
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While Klein accurately describes the militant unwonkishness within the White House and the GOP caucus, that does not mean that the Republican Party lacks innovators. To the contrary, the GOP boasts some of the most technocratic, creative, and radical thinkers in the United States — men and women whose ideas are transforming the face of American law and reshaping everything from our health care system, to our rights in the workplace, to where Americans are and are not allowed to shop.
They work in the federal courts. And they work in some of the wealthiest law firms in the nation. Even as Trumpcare flounders against the rocky shores of the legislative wonk gap, the Republicans on the Supreme Court are pushing an innovative and deeply conservative policy agenda on the nation.
The Federalist Society’s annual gatherings, for example, obsess over one idea — dismantling federal agencies’ ability to regulate. Implicit in this vision, which is shared to at least a limited extent by all five Republicans on the Supreme Court and passionately embraced by Neil Gorsuch, is a sweeping, deregulatory agenda.
Any effective system of environmental regulation, for example, depends on dynamic agencies that can keep abreast of new technologies and adapt regulations accordingly. Much of our health care policy, including much of Obamacare, relies on health regulators being empowered to tweak various policies as new developments arise within the health and insurance industries. By stripping power from federal agencies, five Republicans on the Supreme Court can completely rewrite America’s social contract, and effectively move major segments of entire industries beyond regulation.
Decisions like Burwell v. Hobby Lobby, meanwhile, rest on the innovative and, until recently, largely unheard of idea that a religious objection can be wielded to restrict the rights of third-parties. Religious conservatives now hope to extend that idea to permit violations of anti-discrimination law.
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These are bold, transformative ideas — far more thought out than anything emerging from Congress or the White House. And, unlike Trumpcare or whatever tax reform idea ultimately emerges from the GOP’s elected leaders, Republicans on the Supreme Court have actually been effective in turning their ideas into law.
Meanwhile, the Court’s right flank seems eager to push an even more ambitious agenda. Justice Clarence Thomas, for example, appears to believe that child labor laws and the federal ban on whites-only lunch counters are unconstitutional. And, while Gorsuch has not yet weighed in directly on child labor or racist dining establishments, his record so far suggests that he holds very similar views to Thomas.
And finally, what’s to be done? The Supreme Court has evolved to become almost a group of nine appointed dictators, and under our constitutional structure, what they say goes and there’s very little that can be done to stop them. Millhiser concludes his piece by asking this exact question:
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If the Court continues to move in the direction that men like Neil Gorsuch will take it, then the difficult question future lawmakers may need to address is whether Carolene Products’ framework should work in the other direction. If Carolene Products calls upon the courts to nurse our democracy back to health when lawmakers infect it with a virus, what is the legislature’s duty when such a virus arises from the judiciary itself?
Is court-packing — adding additional seats to the Supreme Court to dilute the vote of its illegitimate member — an acceptable solution? What about controversial proposals to strip away parts of the Court’s jurisdiction? Could a Democratic Congress deter partisan court decisions by inserting triggers into legislation that Republican judges won’t want to set off (“if any portion of this act is declared unconstitutional, then the marginal tax rate on incomes exceeding $1,000,000 shall be 99 percent”)?
The ultimate danger of a judiciary that reaches beyond its legitimate bounds is that it encourages the other branches to test the scope of their own legitimacy — and potentially forces us all to confront a terrifying question: What is worse, losing our independent judiciary or losing our democracy?
That is indeed the question that all of us on the left need to start thinking about. We need to confront the likelihood that even if we can win elections in 2018 and 2020—which is far from certain—we won’t be able to govern because five appointed dictators will decree that we can’t. I, personally, would endorse court-packing—it’s preferable to submitting to illegitimate rule by fascists. Should the court insert right-to-work into the Constitution, I’d favor changing labor law so unions don’t have to bargain for free riders. I haven’t thought much about the other solutions Millhiser posits—anyone else have ideas there?
I have heard the idea that justices should be term-limited—that’s not happening. Would require a constitutional amendment. Also, Neil Gorsuch will not be impeached—for one, Democrats are too bipartisan to ever attempt such a thing. For another, he hasn’t (so far as we know) committed any crimes. And even if he did, Democrats are not going to have 67 senators any time soon.
Also, Democrats need to get over bipartisanship and grow a fucking spine. Incredibly, after the GOP rammed Gorsuch through, Ed Markey (no Blue Dog, he!) said that Democrats would restore the SCOTUS filibuster upon regaining power. Apparently, requiring 60 votes for Dem nominees but 50 for GOP ones is an acceptable trade-off to pursue bipartisanship, according to Markey. And while someone like Bernie Sanders wouldn’t care much about bipartisanship, he often seems wedded to the misbegotten view, popular on the left, that protest politics will cure everything. No, it won’t. It’s lost on many people, but the civil rights movement would have come to nothing if we’d had a president like Barry Goldwater and congressional majorities of Jesse Helms and Strom Thurmond.
Scott Walker, in many ways, was a precursor to Trump—an aggressive conservative who provokes intense backlash but is largely successful at implementing his agenda. He’s still very polarizing but appears virtually untouchable politically. As of now, it seems more likely that Tammy Baldwin loses reelection than Scott Walker does. And a large part of Walker’s success has depended on his control of the Wisconsin judiciary, which has signed off on everything he wants. This is going national and we need to be ready. FDR had his reasons for going after SCOTUS—we’re getting a taste of them firsthand.
Unless…
Unless Anthony Kennedy does the honorable thing and votes to save democracy instead of destroying it. Kennedy is in a position not unlike that of Horace Slughorn in the Harry Potter franchise. For those who don’t recall, Slughorn was one of young Tom Marvolo Riddle’s teachers. Slughorn provided Riddle with information on creating Horcruxes—objects that house fragments of one’s soul, which can only be split by committing murder. Riddle intended to create them to achieve immortality and become the most powerful wizard of all time, and Slughorn’s information gave Riddle the last bit of knowledge he needed to do so—and then, of course, Riddle became Voldemort, who we can think of as wizard Hitler. Here is where things tie back to Kennedy—Riddle could have made the Horcruxes without Slughorn’s info, but Slughorn certainly helped him on the way. Gorsuch could have become a prominent, cold, barely human sociopathic judge regardless of whether he got to clerk for Kennedy—but that clerkship certainly fueled his rise. And Neil Gorsuch reminds me a great deal of Tom Marvolo Riddle—chillingly sociopathic, quite intelligent, skilled at using personal charm to hide his hateful nature.
But in Harry Potter, Horace Slughorn redeems himself. He is appalled by Voldemort, and, though he’s embarrassed by the fact that he aided Voldemort’s rise, he reveals to Harry Potter what he did, giving Harry info that proves crucial to his ultimate destruction of Voldemort. Kennedy has a similar chance—he can save democracy from his vicious protege, or acquiesce to the destruction. (Heck, if Kennedy wanted, he could make his likely retirement contingent on Merrick Garland being named to succeed him; that would solve a few issues, though I don’t see this happening ever.) Even if Kennedy does the honorable thing, the fact that one man has the power to save democracy or kill it off for generations to come, if not forever, says a lot about the shortcomings of our system of government.
Initial signs are not promising at all, and we have to accept that it will likely take drastic measures to revive democracy in America. I come back to the same question as Ian Millhiser—what measures should we consider? Court packing seems like a logical step—add seats to dilute Gorsuch’s illegitimate vote, and also to diminish the importance of any one justice. That would probably require killing off the rest of the Senate filibuster, but on the whole I wouldn’t be sorry to see that go. Other ideas?