Tag Archives: RBG

The People And The Court

Joseph Margulies has made a counter-intuitive argument at the legal publication Justia. The crux of his opinion is that liberals have misread the Supreme Court’s history, and as a result, have placed far too much reliance on the judicial branch.

As I recall, this was also an argument advanced by Kieth Whittington, a legal scholar, a few years back. As I remember the book–and my memory is definitely hazy– Whittington felt that over-reliance on the courts to protect individual liberties led to flaccid and apathetic political participation.

Justice Ginsburg has given the left a great gift, if it knows how to use it. Finally, and none too soon, the popular infatuation with the Court as the Great Protector of Individual Rights can be laid to rest. We will now see the Court for what it has been for most of its history—a reactionary branch committed to the preservation of wealth and the status quo. With the exception of a brief and unrepresentative period from the mid-1950s to the early 1970s, the Court has not been an agent of progressive change. Quite the contrary, it has been decidedly unkind to claims pressed on behalf of underrepresented minorities and the poor. Outside of two short decades, the Court has been timid and conservative, lending its support for progressive policies only after they have already won widespread approval. By the time the Court managed to recognize a right to same-sex marriage in Obergefell v. Hodges, for instance, it was already the law in 37 states and the District of Columbia

The Court that liberals lionize (or, as Margulies would have it, the myth of the Court that they have constructed) is, as he argues, a product of what he calls “the golden years” that produced cases like Brown v. Board of Education (1954), Roe v. Wade (1973), Miranda v. Arizona (1966) and and Gideon v. Wainwright(1963).

But what so many fail to appreciate is that all the rights and protections established during this period, literally without exception as far as I can tell, have been substantially diluted by the same Court that created them, some nearly to the point of elimination.

It’s hard to disagree with this analysis. The Court has blessed “school choice,” which has accelerated the re-segregation of schools, and has made abortion nearly unobtainable by upholding medically unnecessary and burdensome regulations. Margulies concludes that there is no judicial substitute for the hard work of political activism.

The practice [of taking matters to court] supplants democracy and sidesteps the people. It imagines that there is a substitute for politics, a shortcut that will allow us to achieve an enduring progressive vision without having to engage in the protracted ugliness of partisan politics. We point to past cases because we think it has happened before, but overlook the fact that these decisions did not endure. We put our faith in Oracles who stand atop politics because we are sickened by the emergence of a world in which facts no longer matter, science is ridiculed, and jack-booted racism is on the march. So we look to the Nine for our salvation. But they are not—and in truth have never been—our Saviors.

Win or lose in November, we need to heed this call to arms. Margulies predicts that we will:

As political campaigns well know, nothing motivates a constituency like a sense of threat. After the election of Barack Obama, for instance, the NRA parlayed fear of the new President into “a dramatic increase in membership,” and gun sales surged 60 percent.. ..The same thing happened on the left after the surprise result in 2016. Within months of Trump’s election, membership in the ACLU skyrocketed from around 400,000 to more than 1.8 million and contributions ballooned by $120 million. In the same way, the knowledge that the Court is lost to the left should trigger a groundswell of political and financial support for progressive and liberal candidates, lest the entire architecture of government be controlled by the right. In politics, threat leads to action, and after Friday, the sense of threat has never been so real. The ships have been burned; there will be no retreat to the Court.

Just as [RBG”s] death should invigorate the left, it will enervate the right. Campaigns articulate a vision of success and promise their supporters that all will be right with the world once that goal has been achieved. For the right, success has meant control of the Court. For decades, the right has struggled to achieve a secure majority on the Court, only to suffer one disappointment after another…. Now that victory is at hand, a letdown is inevitable. While threat produces action, victory leads to quiescence.

As my grandmother would have said, “From his mouth [okay, word processor] to God’s ears…”

 

What White Supremicists Are Also Voting Against

There’s a theme emerging in the depressing story of current American political behavior. Call it karma, irony or profound stupidity leading to a boomerang effect.

A couple of days ago, I described a local election campaign in which the dishonest and unethical efforts of a State Senator who had previously had a reputation as one of the more honorable contemporary Republicans had instead brought disrepute on a family name that, until now, had identified admirable members of a Hoosier political family.

Tuesday, Paul Krugman pointed to yet another example of probable karma–in their determination to re-elect Donald Trump and their haste to co-opt the Supreme Court (ostensibly to “save”  babies they refuse to feed once they’re born), the GOP is facilitating the death-knell of Obamacare and the ability of both Republican and Democratic Americans with pre-existing conditions to obtain health insurance.

If you or someone you care about are among the more than 50 million Americans suffering from pre-existing medical conditions, you should be aware that the stakes in this year’s election go beyond abstract things like, say, the survival of American democracy. They’re also personal. If Donald Trump is re-elected, you will lose the protection you’ve had since the Affordable Care Act went into effect almost seven years ago.

The death of Ruth Bader Ginsburg has made this even more obvious. In fact, it’s now possible that coverage of pre-existing conditions will be stripped away even if Trump loses to Joe Biden, unless Democrats also take the Senate and are prepared to play serious hardball. But health care was always on the line.

Naive members of the GOP base either don’t understand this, or don’t care, or believe Trump’s repeated promises to issue a “wonderful plan” that will replace the Affordable Care Act and protect those with pre-existing conditions.

As Krugman points out, we’ve been hearing about how imminent that plan is for four years, and there’s still no sign of it. (Krugman suggests that  administration officials may have been” too busy botching their response to the coronavirus” to get to the task of crafting a healthcare plan. “Did I mention that, as we pass the 200,000 deaths mark, cases appear to be rising again?”)

In 2017, the last time Republicans did offer their own health care plan, the Congressional Budget Office calculated that it would cause 32 million Americans to lose health insurance, and others would face much higher premiums. That calculation didn’t come from “fake news” sources, but from the budget office of a Republican administration.

And what about that promise to people with pre-existing conditions?

The Trump administration is backing a lawsuit, now before the Supreme Court, claiming that a fairly minor provision in the 2017 tax cut somehow rendered the whole Affordable Care Act unconstitutional. It’s a ludicrous argument — but Republican judges in lower courts have backed it anyway, and a court without Ginsburg is more likely to let partisanship override any pretense of respect for logic.

The odds that the court will destroy Obamacare, and with it protection for pre-existing conditions, will obviously go up if Trump is able to install a right-wing partisan to replace Ginsburg.

For many members of the Trumpian base, loss of their health insurance would be karma– their overwhelming desire to hurt people who look, love and pray differently would have brought disaster on themselves. Much like the situation with masks–if the only people being hurt were the selfish know-nothings and bigots refusing to be inconvenienced to save the lives of their neighbors– the rest of us could probably live with that result. (I know–that’s horrible. But I never said I was nice.) Unfortunately, however, the trite sentiment is also true: we really are “all in this together.”

Dishonesty, stupidity and bigotry do come back to bite their promoters–the problem is, they get the rest of us, too.