A CONDITION OF MARAUDING REACTION

Chris Hayes got it right. For most of its history, the Supreme Court has been a force for marauding reaction in American political life. For every period of social advance, which the court always opposes and only ever cooperates with when faced with power that can thwart its actions, there is always a period during which the court becomes a vehicle for overturning and setting back that progress, led by “marauding reactionaries.”

Outside of the fluke period of the past 68 years that began with the appointment by President Eisenhower of California Governor Earl Warren as Chief Justice - the last time a court appointment was made of a lawyer whose background was primarily in government and politics, rather than the law, which distinction has much to do with the kind of jurisprudence he was responsible for initiating, a period that largely ended 20 years ago when the first of two conservative Republican Presidents who failed to take office through a majority vote was able to appoint two of the six conservatives on the court now finally taking the steps of reaction to the previous legal and societal progress the court is traditionally there to stop.

Let us remember that five of the present six activist reactionaries - they are far from conservative! - on the court were appointed to their positions by the two conservative Republican presidents who lost the popular vote. As a result, the court has resumed its role as a main part of the anti-democratic minority rule that has traditionally split this country between progress and reaction. The marauding reactionaries have been put in power.

It cannot be stressed to strongly that the most important words in the majority opinion that today overturned fifty years of legal precedent are these:

"IN FUTURE CASES, WE SHOULD RECONSIDER ALL OF THIS COURT’S SUBSTANTIVE DUE PROCESS PRECEDENTS, INCLUDING GRISWOLD, LAWRENCE, & OBERGEFELL.”

This result is the work of a campaign by the far right to undo progress that began the day Franklin Roosevelt took office in March 1933. While the supporters of progress have sat back fat dumb and happy at the results of court decisions supporting the New Deal and thought that everything fought for had been won for all time, the conservatives never forgot what they were working for the overthrow of all of that.

Last July 27, Senator Sheldon Whitehouse explained what he called The Scheme—the long-march campaign to buy a hardcore conservative majority on the Supreme Court.

“You may recall that dark money emperor Charles Koch made waves when he told his right-wing network he could support neither Hillary Clinton nor Donald Trump in 2016. But the house of Koch and the house of Trump soon reached an accommodation. The house of Koch decided on a grand Trump gesture for their scheme donors—let their operative, Leonard Leo, handpick a list of Supreme Court nominees for Trump to announce early in the general campaign. For the price of known, scheme-approved Supreme Court prospects, peace might be acquired between house of Koch and house of Trump. Trump announced the list. For what it is worth, I think the rest of the accommodation was for house of Trump to turn over all energy and environmental positions in government to climate change deniers approved by house of Koch, and at the end of the day, it was probably a lot of the same dark money behind both of those accommodations…

“…Leo and the Federalist Society's control ran deep. In Leo, the donors controlled an agent to orchestrate every aspect of Supreme Court judicial battles, and they provisioned him with dark money beyond imagining, and with a devious structure of front groups to hide behind while effectuating their scheme.

“We are still learning about the scope of Leo's covert funding and influence, but a 2019 Washington Post expose painted a remarkable picture: a vast network of Leo-affiliated front groups; shell entities with no employees and vague connections to Leo cutouts; shared post office boxes; common contractors and officers across nominally separate entities, even some sharing Presidents; dark money funders, anonymous advertising, and enormous pay packages for operatives. It has the earmarks of a covert operation of the sort that is run by hostile countries in the intelligence arena. But this covert operation was run in America against America by Americans. By the Post's reckoning, $250 million in dark money flowed through this apparatus. Testimony before the Senate Judiciary Committee's Courts Subcommittee, which I chair, has since updated that number to $400 million.”

BY THE POST'S RECKONING, $250 MILLION IN DARK MONEY FLOWED THROUGH THIS APPARATUS. TESTIMONY BEFORE THE SENATE JUDICIARY COMMITTEE'S COURTS SUBCOMMITTEE, WHICH I CHAIR, HAS SINCE UPDATED THAT NUMBER TO $400 MILLION.

$400 million to overturn the desires of two-thirds of the country, to install minority rule by less than one-third of the country.

When Roe was announced in 1973, it was a decision that was welcomed by people one would not expect to have been supportive, given the way politics have developed around the issue since.

Ronald Reagan as Governor of California had signed the first liberalization of abortion legislation in the country in 1967, legalizing abortion in the state if it could be shown to be in the interest of the health of the mother. In 1973, the Southern Baptists passed a resolution in favor of Roe, and stating that the church saw its interest in the welfare of children beginning when the child “took life separate from the mother.”

The opposition to abortion was created by Jerry Falwell, a pro-segregation Southern conservative, who was a leader in the “private education” movement that had spread through the South as the resistance to school integration ordered by Brown v Board of Education was finally enforced by the federal government during the civil rights movement of the 1960s. Falwell determined to change the Supreme Court to reverse those decisions.

Fallwell, one of the most cunning of the marauding reactionaries, realized he couldn’t get much public support for his opposition to racial integration; he needed a political campaign against the “usurpation of power” by a “liberal activist supreme court” that could attract the support of conservatives.

He chose abortion. Many religious conservatives had been dismayed by the court’s 1965 decision in Griswold v Connecticut that “promoted immorality” in the eyes of religious fundamentalists by “freeing” sex from procreation, something religious conservatives have been opposed to in America since the arrival of the Puritans in the 17th Century. Abortion could be portrayed as the “ultimate immoral evil”that was the result of the decision to allow “irresponsible” sex to proliferate. This had to be changed! All he needed was a public movement to place “conservatives” on the court.

As of today, the bodily autonomy of American women is now controlled by the state legislature of Mississippi, a state that has a worse rate for infant mortality than either Kuwait or Lebanon. A state legislature that still applauds itself for committing treason against this country 160 years ago. A state legislature dedicated to the suppression of majority rule since the state was created in December 1817 - 205 years of anti-democratic repression, as part of a country supposedly founded on democratic rule by the majority.

As of today, states will be in conflict the way they haven’t been since the passage of the Fugitive Slave Act in 1850. That was followed by the Kansas-Nebraska Act of 1854, which abolished the federal government’s prohibition of slavery in the unorganized territories, followed then by the Dred Scott decision declaring that an African American had no rights a white man was bound to recognize, and would never be a citizen of this country. All that led directly to civil war a decade later.

Abraham Lincoln said, "A house divided against itself cannot stand. I believe this government cannot endure, permanently half slave and half free. I do not expect the Union to be dissolved - I do not expect the house to fall - but I do expect it will cease to be divided. It will become all one thing, or all the other.”

The result of today’s decision is to place half the population of this country in servitude to a government decision, against which they have no appeal, forced to do something they might not otherwise do, if they had the choice.

That is the definition of slavery.

And this time, I am not certain that the union will not be dissolved, as Lincoln was. The difference between the “free” states and the “slave” states are more stark than they were 164 years ago when Lincoln said those words.

Today is not the result of the efforts of a political movement composed of “small government conservatives,” as they like to portray themselves publicly.

This is the result of Big Government Theocracy, a minority movement dedicated to imposing their beliefs, their political choices, on the rest of us, in the name of “religious liberty.”

Phil Ochs was right back in 1964: “Mississippi! Find yourself another country to be part of!”

UPDATE: It’s always nice to have one’s thoughts on an issue confirmed by someone who Knows What They Are Talking About because they’re in the arena. This from a “top level DC attorney”:

“This is a Court with a broad agenda to reshape America dramatically, and pre-New Deal America increasingly appears to be the legal model. That includes eliminating constitutional protections against government action recognized over the past 75 years, and greatly enhancing a few, favored constitutional rights. And, just as importantly, diminishing the federal government across the board by tying the hands of federal agencies—which, in our era of congressional paralysis, means crippling the federal government because Congress will not be able to fix the (newly-discovered) shortfalls in existing laws. 

“Progressives were unable to produce a governing coalition for the changes they seek. But it isn’t at all clear that a majority favors the very different America that the Court majority has in mind. Especially when hard-won protections disappear and new crises arise that the federal government is unable to address. But that is the America we are going to get.”

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