Month: September 2021

THE IMPLICATIONS OF RADICAL, REACTIONARY RULINGS BY THE SUPREME COURT

Note: If you find my posts too long or too dense to read on occasion, please just read the bolded portions. They present the key points I’m making and the most important information I’m sharing.

My previous post made the case that six of the nine Supreme Court justices (Alito, Barrett, Gorsuch, Kavanaugh, Roberts, and Thomas) are radical reactionaries both in the content of their rulings and in their decision-making process. This post will outline some of the societal implications of their rulings, particularly the ruling on the Texas law prohibiting most pregnancy terminations.

As you’re probably aware, the Supreme Court blocked a lower court from delaying the implementation of a Texas law restricting pregnancy termination (aka abortion) that is clearly unconstitutional and uses a highly unusual and fraught enforcement mechanism. The Court did so without hearing any arguments on the merits of the case. Implementation of the Texas law, even temporarily, will allow nuisance lawsuits that will probably bankrupt or otherwise put out of business all abortion providers in Texas. The Supreme Court, in an unprecedent action, has allowed immediate implementation of this law despite the facts that it clearly violates a constitutional right and does immediate harm by stopping 85% of pregnancy terminations that happen in Texas.

 The Texas law allows any citizen to sue anyone or any organization that is in any way involved in a pregnancy termination that occurs roughly six weeks or more into a pregnancy. (At six weeks, most women don’t even know they are pregnant yet.) The citizen would get a $10,000 reward or bounty plus reimbursement for legal costs if they win the suit. If the defendant wins the suit, they are not eligible to recover legal costs. This makes a pregnant woman who would like to terminate her pregnancy prey for bounty hunters.

The Texas law encourages and rewards vigilantism, where neighbors sue neighbors. This is the type of “justice” system – with neighbors incriminating neighbors – that totalitarian regimes use to control people. It was used in pre-WWII Germany, in the Soviet Union, and in Iraq under Saddam Hussein, for instance.

This citizen enforcement mechanism was used – as opposed to the normal use of public law enforcement agencies – specifically to bypass federal judicial oversight and inhibit federal enforcement of a woman’s constitutional right to terminate a pregnancy as established by the 1973 Roe vs. Wade Supreme Court decision. As Justice Sotomayor wrote in her dissent, “Because the Court’s failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas, I dissent. … This is untenable. It cannot be that a state can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry.” [1]

As historian Heather Cox Richardson wrote in her blog, “The Republican Party is empowering vigilantes to enforce their beliefs against their neighbors.” [2] With vigilantism already escalating in our country, it needs no encouragement. It is occurring at school board meetings discussing mask mandates, it is being used to intimidate election and public health officials, and it was the foundation of the January 6 attack on the Capitol.

Vigilante “justice” and states’ rights (to ignore federal constitutional rights) are what was used to maintain white supremacy in the post-Civil War south. For eighty years, law enforcement in the south depended on your skin color, your gender, and whom you knew. Vigilantes kept Blacks from voting and kept education separate and unequal. Southern vigilantes could literally get away with murder up until the 1960s. [3]

The Supreme Court decision on the Texas pregnancy termination case and decisions on other cases related to religious beliefs and practices are allowing white, Christian religious beliefs to function as civil law. These decisions allow private organizations (e.g., employers and health care providers) and state governments to engage in discrimination and oppression based on religious beliefs in providing (or not providing) women’s health care and services to LGBTQ people, for example. The Texas law encourages and rewards citizens who act based on their religious beliefs about pregnancy termination and sue fellow citizens. [4]

In allowing Texas to implement unconstitutional pregnancy termination restrictions and to avoid federal enforcement of civil rights by empowering citizen enforcement of state laws, the Supreme Court has opened a barn door. This strategy, having been successful at least temporarily in Texas, will almost undoubtedly now be used by other states on this and other issues in ways that violate people’s civil rights. [5]

In summary, the Supreme Court is failing to enforce federal law and uphold civil rights, giving states free rein to ignore the due process and equal protection provisions of the 14th amendment. These are the provisions that allow the federal government to ensure the protections of the Bill of Rights for people, even when a state government tries to undermine them. These Supreme Court decisions mean the federal government cannot protect the rights of people of color, women, religious minorities, or otherwise-abled people. The Supreme Court has handed power over civil rights back to the states and the vigilantes, as it was in the 80 years after the civil war. [6]

It is unclear how this door, now opened, will be closed, but it is clear that reform of the Supreme Court to disempower its radical, reactionary, and ill-gotten majority is an essential part of that process.

In my next post, I will discuss the implications of the behavior of the Court’s radical reactionaries for the legitimacy and future of the Court. I’ll also present possible solutions to the current unprecedented and undemocratic actions of the Court.

[1]      Sotomayor, S., 9/3/21, “Sotomayor’s defiant dissent,” The Nation (https://www.thenation.com/article/society/sotomayor-abortion-dissent/)

[2]      Richardson, H. C., 9/1/21, “Letters from an American blog,” page 2, (https://heathercoxrichardson.substack.com/p/september-1-2021)

[3]      Richardson, H. C., 9/1/21, see above.

[4]      Hubbell, R., 9/2/21, “Today’s Edition: Susan Collins should resign in disgrace,” (https://roberthubbell.substack.com/p/todays-edition-susan-collins-should)

[5]      Hubbell, R., 8/31/21, “Today’s Edition: The U.S. war in Afghanistan is over,” (https://roberthubbell.substack.com/p/todays-edition-the-us-war-in-afghanistan)

[6]      Richardson, H. C., 9/3/21, “Letters from an American blog,” (https://heathercoxrichardson.substack.com/p/september-3-2021)

REPUBLICAN HYPOCRISY ON THE FEDERAL DEFICIT

Note: If you find my posts too long or too dense to read on occasion, please just read the bolded portions. They present the key points I’m making and the most important information I’m sharing.

The Republican Party is guilty of lots of hypocrisy these days, some of it new and some of it old. One of the older elements that’s resurfacing today is concern about the federal government’s annual budget deficit and its overall accumulated debt. One of my real frustrations with the mainstream media is that they rarely call out Republican hypocrisy. They typically report the Democratic and Republican rhetoric as a he said / she said conflict without any historical or factual context.

Therefore, I was pleased to see a front-page story in the Boston Globe on 9/17/21 explicitly calling out the Republicans’ current hypocrisy on the federal deficit. The title and subtitle, no less, highlighted the hypocrisy: “Democrat in office, GOP focuses on the debt; But true to form, Republicans were silent as Trump ran up spending.” [1] What follows is a summary of the article.

Republicans are trying to build support for their opposition to President Biden’s and congressional Democrats’ infrastructure investment bills by saying they’re concerned about the federal budget deficit and overall debt. This is hypocritical because congressional Republicans remained largely silent as the debt grew by $8 trillion (40%) under President Trump in just four years. It’s also inaccurate because the Democrats are planning to pay for most if not all of the costs of the bills with tax increases on wealthy individuals and corporations, along with other revenue increases, so the deficit and debt would not grow as a result.

The hypocrisy is quite blatant because congressional Republicans pushed through a tax cut in 2017 that increased the debt by about $200 billion a year. Trump’s hypocrisy was stunning, given that he had promised during his campaign to balance the federal budget in four or five years. Instead, his four budgets ran deficits of an average of $2 trillion per year! Voters appeared to believe his campaign promise, in part because the mainstream media didn’t provide the context that would have shown it was a lie, particularly in the context of his other promises.

Republicans are saying they won’t vote to increase the federal government’s ceiling on its total amount of debt. However, they raised or suspended the debt ceiling three times when Trump was president. Moreover, most of the increase in the federal debt that has occurred since the debt ceiling was last raised in 2019, occurred under President Trump. Republicans are resurrecting their opposition to increasing the debt ceiling that they exhibited when Obama (a Democrat) was president. Then, they pushed the government to the brink of defaulting on its debt, which would create an unprecedented economic crisis.

This hypocritical opposition to increasing the debt ceiling and to increased spending because it might increase the annual budget deficit reflects a 40-year pattern of Republican presidents and congresspeople creating large budget deficits and then leaving a fiscal and economic mess for Democratic presidents to deal with and clean up. Brian Riedl, a senior fellow at the Manhattan Institute (a conservative, free-market think tank) and a Republican economic and tax policy expert, is quoted in the article as saying, “Republicans are absolutely guilty of hypocrisy in that they focus on the debt during Democratic presidents and then run up spending during Republican presidents.”

[1]      Puzzanghera, J., 9/17/21, “Democrat in office, GOP focuses on the debt,” The Boston Globe

THE RADICAL, REACTIONARY MAJORITY ON THE SUPREME COURT

Note: If you find my posts too long or too dense to read on occasion, please just read the bolded portions. They present the key points I’m making and the most important information I’m sharing.

You’ve almost certainly heard about the Texas law prohibiting most pregnancy terminations (aka abortions). It’s blatantly unconstitutional and also radical in multiple ways. I’m not going to discuss the law itself in any detail, rather I want to focus on the behavior of the Supreme Court’s six radical, reactionary justices on this case and others.

Many people refer to the five Supreme Court justices (Alito, Barrett, Gorsuch, Kavanagh, and Thomas) who allowed the Texas law to go into effect and Chief Justice Roberts (who dissented in the Texas case for procedural reasons) as “conservative.” This is not accurate. Although they do fit with political conservatives in favoring free enterprise and private ownership, they do so in a way that ignores the whole post-Depression and post-WWII form of managed capitalism. Somewhat similarly, they only uphold traditional values and social norms if one turns back the clock at least 50 year and probably closer to 100 years. Finally, they are not conservative in terms of being averse to change or innovation, rather they are radical, judicial activists ignoring longstanding precedents and creating wholly new judicial theory and reasoning.

A number of court observers and journalists have taken to calling them “reactionary.” A reactionary holds political views that favor a return to a previous state of society, which they believe possessed positive characteristics that are absent from contemporary society. For example, these justices apparently want to return to the days when:

  • Abortion was banned and women’s roles and decisions were controlled by husbands, restrictive societal norms, and, in some cases, laws.
  • State governments were much more powerful and the federal government couldn’t enforce national laws protecting individuals’ rights, including the rights of people of color, women’s rights, immigrants’ rights, and others’ civil rights.

To call those six justices “radical” also seems appropriate as they are clearly upending fundamental principles, precedents, and processes of the Supreme Court and our system of jurisprudence. They have repeatedly shown a lack of respect for precedents that don’t fit their ideology.

Their radicalism isn’t limited to the Texas case or the substance of their decisions, but is also evident in the processes they have used to make numerous significant rulings. For example, rulings in three recent cases were made without hearing the merits of the cases:

  • The Texas pregnancy termination case: failed to stop implementation of a clearly unconstitutional law with a highly unusual enforcement mechanism – deputizing private citizens to sue – that is intended to evade federal judicial oversight.
  • The case on forcing asylum seekers to stay in Mexico: required the Biden administration to enter into an agreement with Mexico on asylum seekers, despite the fact that the Court has no jurisdiction or way to enforce Mexico’s participation. In addition, for the Court to direct the foreign policy of the U.S. is completely unprecedented and does violence to the separation of powers in the Constitution.
  • The termination of the eviction moratorium case: overturned a CDC-driven executive order that will impact the housing and health of millions of people in the face of a pandemic.

In these three cases, and in numerous others, the Supreme Court has issued rulings with significant effects based on procedural matters without the normal full briefing and arguments, which would provide them vital information needed to make an appropriately considered decision. This seems to be the Court’s new strategy for deciding major cases – ruling on procedural motions without hearing the merits of the cases. These rulings are typically unsigned, which is also unusual. Even Chief Justice Roberts, normally part of the radical, reactionary cabal, criticized the rush to judgement in the Texas case without consideration of the merits of the case, writing in his dissenting opinion, “We are at this point asked to resolve these novel questions … in the course of two days, without the benefit of consideration by the District Court or Court of Appeals. We are also asked to do so without ordinary merits briefing and without oral argument.” [1]

The lack of hearings also avoids a public airing of the issues, arguments, facts, and implications of a case and the Court’s decision. This and the fact that a number of the rulings have been issued outside of normal business hours seem to indicate a desire to minimize news coverage, public awareness, and public discussion of cases.

Both the substance of these rulings (and numerous others) and the Court’s failure to hold hearings make it appear that these decisions are based on ideology and politics, not legal precedents, the law, or the merits of the cases. As Robert Hubbell, a retired lawyer writes: “the Supreme Court has dropped all pretense of due process or respect for precedent … to implement the conservative social agenda … without regard to logic, precedent, or the Constitution.” [2]

Another indication that these decisions are partisan is that the Court had no problem with President Trump’s dramatic and sweeping executive orders but finds President Biden’s less dramatic orders unconstitutional. In the Mexico asylees case, the Court ordered Biden to reinstate an agreement with Mexico that had expired in 2020 before Biden was elected. However, the Court didn’t order Trump to reinstate it. [3] The six radical, reactionary justices appear to be acting aggressively to exert their power in support of a partisan, ideological agenda.

All six of these justices, unless I’m much mistaken, pledged at their confirmation hearings to abide by legal precedents, including previous Supreme Court decisions such as the Roe v. Wade decision, which made it a constitutional right to be able to terminate a pregnancy before fetal viability at about 22 – 24 weeks of pregnancy. It now seems clear that they all lied, meaning they committed perjury given that they were testifying under oath.

In a future post, I’ll review the implications of the radical Texas pregnancy termination law and the Supreme Court’s failure to delay its implementation to allow time for judicial review. I’ll also discuss ways to respond to the Court’s radical, reactionary behavior.

[1]      Hubbell, R., 9/3/21, “Today’s Edition: A judicial coup d’état,” (https://roberthubbell.substack.com/p/todays-edition-a-judicial-coup-detat)

[2]      Hubbell, R., 9/2/21, “Today’s Edition: Susan Collins should resign in disgrace,” (https://roberthubbell.substack.com/p/todays-edition-susan-collins-should)

[3]      Hubbell, R., 8/27/21, “Today’s Edition: The backbone of America,” (https://roberthubbell.substack.com/p/todays-edition-the-backbone-of-america)