The Folks in Black Robes

American myth assigns a status to Supreme Court justices akin to wisemen. Historically, they have been seen as being above partisan motivation and immune to the pressures of popular passion. Our myths are usually wrong to some degree, but in this case night and day is inadequate to describe the gulf between myth and reality.

CITIZENS UNITED

Their latest travesty dealing with presidential immunity is only another in a long list of destructive decisions, new law, given to us by the Roberts court. Going back a few years, with a slightly different cast of characters, they told us that money was speech. That decision, which addressed topics not even brought before the court, opened the way for massive contributions to political campaigns. Since Citizens United, politicians from both parties have become totally beholden to the hoarding class. How can we expect our elected people to respond to the needs of the poor farmer in Southwestern Wisconsin or the factory worker in Austin when their survival requires them to suck-up to hedge fund managers, tech gurus, and business CEOs? The hoarding class is now clearly and fully the ruling class. This decision alone inflicted a near mortal wound to our democracy.

VOTING RIGHTS ACT

But they were far from done. The next major blow to democracy came when they struck down the heart of the Voting Rights Act. The preclearance provision, which required states with a history of voter suppression to get federal approval of changes to voting laws, the court found to be no longer needed. We apparently had grown beyond any voter suppression. As Chief Justice Roberts wrote in his decision, “the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions…”  Almost immediately, several states that previously would have had to get preclearance made major changes in their laws that had the effect of making voting harder, especially for those who had traditionally been marginalized.

But not to worry said the court, those who felt they had been the victims of discrimination could go to the federal courts under a remaining provision of the law. That was shortly before, the 8th Circuit in another case, significantly limited the range of folks who had standing to bring such suits. Through this action, the parties who had brought most of the suits under the statute lost standing.

Then Justice Alito, in a case from Arizona, seemed to say that some discrimination was inevitable, and that voting was hard and required some efforts. He then offered guideposts that the courts should consider when dealing with racial gerrymandering cases. The result makes it much harder for anyone to win such a case. In a recent case, the court apparently applied these guideposts to find that moving thousands of black voters from a Democratic leaning district to a Republican leaning district was not racial gerrymandering, and therefore, very constitutional.

UNIONS

The Court also took a swing at labor. In Janus they found that requiring non-union members to pay a representation fee to unions that represented them in a workplace was a violation of the First Amendment. They did not find that the now uncompensated unions could decline to provide representation services to non-members in their workplace. This was a blow to the treasuries, and therefore, the political power, of public sector unions.

REPRODUCTIVE RIGHTS

Then came reproductive rights. For fifty years our constitution protected the right of women to have abortions, until it suddenly didn’t. The Court overturned Roe, saying that the states appropriately had the authority to regulate abortion. In reaching this decision, some justices hinted that other applications of the privacy doctrine might also be questioned—same sex marriage, or contraceptives.

Later they punted on procedural grounds in a case that fundamentally challenged the approval process of the Food and Drug Administration that would have removed the most widely used abortion drug from the market. They also punted on a case that would have not required emergency rooms to perform life-saving abortions, as federal law would mandate. The drug and emergency abortions, at least in one state, remain available, but with different plaintiffs, the arguments will almost certainly come back.

CHEVRON DEFERENCE

Then we have the deep state, otherwise known as a state, staffed with dedicated professionals with expertise. For decades, under what was known as the Chevron deference, the court held that courts should defer to the reasonable interpretations given a statute by the administering agency. For example, if the EPA had reasonably interpreted the Clean Air Act with definitions of clean air and methods of determining when standards of clean air were met, the court would defer to the expertise of that agency and not entertain challenges to those findings. This concept of letting the experts decide, unless they are clearly off-base, has allowed administrative agencies to implement a host of statutes, often having the result of regulating the actions of industry, without the threat of lawsuit. Now that doctrine is overturned. The result will be full employment for lawyers and slow, chaotic, implementation of laws passed by congress. It will also offer the chance for the expert opinion of Justice Alito to be substituted for that of Dr. Fauci.

AFFIRMATIVE ACTION

Recently, they turned their attention to affirmative action, or as it is more euphemistically called, race-based admission policies. This concept has been around since the Kennedy administration. It was intended to help correct the lingering effects of past discrimination. But the court now finds that it is reverse discrimination. Now most efforts to achieve racial balance or diversity are being eliminated. To paraphrase the Chief Justice, the way to end discrimination is to ignore the impacts of previous discrimination.

STORM, BUT DON’T SLEEP

Then we have two cases that have been characterized as making it OK to storm the capitol, but not to sleep on its grounds. The first found that the people who had stormed the capitol and stopped the actions of congress in finalizing the election were not appropriately charged with disrupting an official proceeding. The second found that it was OK to fine homeless people for sleeping in public places.

STATE ELECTION RESPONSIBILITY & PRESIDENTIAL IMMUNITY

This brings us to two cases that end the tail of the Roberts court—for now. The first found that the states could not exercise their constitutionally-assigned responsibility to administer elections by deciding who could be on the ballot and the second elevates the president above the law with unconditional immunity from prosecution for acts taken in his—ill-defined—official capacity.

To summarize, these black-robed folks have:

• Elevated in the interests of money over the interests of people.

• Sanctioned efforts to suppress votes, largely at the expense of marginalized citizens and to the benefit of Republican candidates.

• Made it more difficult for labor unions to survive.

• Undercut the importance of expertise in implementing federal law while making it more difficult for federal agencies to implement laws passed by congress.

• Undercut the authority of the states to decide whose name should appear on the ballot—without offering an alternative source of that power, except the court.

• Eliminated efforts to redress the impacts of centuries of racial discrimination.

• Stripped women of basic human rights they had had for fifty years.

• Made illegal the most basic right of homeless people to sleep. 

• Gave deference to convicted January 6 rioters.

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• Made our president more akin to a king.

When the full impact of these actions is felt, our form of government and our way of life will be hanging by a thread. That thread will be the collective ability of voters to understand the danger we face and their resolve to vote for people who will return power to the people and the institutions that act on their behalf.