DEVASTATING DECISIONS THAT TAKE DIRECT AIM AT DEMOCRACY

As Richard Hofstadter pointed out back in 1954 in “The Pseudo-Conservative Revolt”:

“It can most accurately be called pseudo-conservative — I borrow the term from the study of The Authoritarian Personality published five years ago by Theodore W. Adorno and his associates — because its exponents, although they believe themselves to be conservatives and usually employ the rhetoric of conservatism, show signs of a serious and restless dissatisfaction with American life, traditions and institutions. They have little in common with the temperate and compromising spirit of true conservatism in the classical sense of the word... Their political reactions express rather a profound if largely unconscious hatred of our society and its ways — a hatred which one would hesitate to impute to them if one did not have suggestive clinical evidence.

“Adorno and his co-workers found that their pseudo-conservative subjects, although given to a form of political expression that combines a curious mixture of largely conservative with occasional radical notions, succeed in concealing from themselves impulsive tendencies that, if released in action, would be very far from conservative. The pseudo-conservative, Adorno writes, shows “conventionality and authoritarian submissiveness” in his conscious thinking and “violence, anarchic impulses, and chaotic destructiveness in the unconscious sphere. . . . The pseudo conservative is a man who, in the name of upholding traditional American values and institutions and defending them against more or less fictitious dangers, consciously or unconsciously aims at their abolition.”

It only took eight working days and five decisions for the six pseudo-conservatives of the Supreme Court’s reactionary super majority to destroy most of the 20th century progressive judicial accomplishments.

After spending Juneteenth holiday weekend celebrating their coming destructo derby, they gutted the Establihsment Clause the first day back to work, followed that with knocking off the “prophylactic” decisions that promote substantive due process for criminal civil rights, taking down the Fourth, Fifth, Sixth, Ninth and Fourteenth Amendments. As an aside, the kicked the plain meaning of the Second Amendment to the floor and stomped it the next day, finishing the week by returning us to a “nation divided against itself, half slave and half free.” The topper came yesterday with the announcement they are destroying the Administrative State more thoroughly than Steve Bannon and his gang of hooligans could even conceive.

From their announcement of appeals they are accepting for the next term, the next targets could include voting rights, state courts’ power over elections, affirmative action and laws banning discrimination against LGBTQ people. The court has also accepted a new Voting Rights Act challenge from Alabama, a pair of cases challenging race-based affirmative action programs in higher education and a case brought by a web designer claiming that she should be able to ignore a Colorado law barring discrimination against same-sex couples. With the sidebar comments of Thomas and Alito with the recent assaults, we can expect to see the entire 21st Century declared unconstitutional by this time a year from now.

As with many of the cases the Supreme Court decided in recent weeks, any of those cases could qualify as the most significant of an ordinary court term, but the justices have decided to hear them all.

The Pseudo-Conservatives on the Right are almost giddy with the results of the first full court-term with six conservative justices since the court struck down much of President Franklin Roosevelt’s New Deal before the court reforms of 1936 in which FDR threatened to expand the court.

The decision in West Virginia v EPA, the Supreme Court announced on the last day of this term, delivered a major setback to President Joe Biden’s ambitious climate change goals on Thursday, ruling that the Environmental Protection Agency does not have broad authority to curb planet-warming pollution from power plants. In so doing, they raised questions about other kinds of regulation in which agencies seek to use older statutes to address emerging and ongoing social problems, including in health care, telecommunications, finance and other major sectors. They are asking for appeals on cases that could allow them to deal a body blow to the Administrative State and gut the ability of the federal government to, you know, actually govern.

In a statement, Biden called the ruling yet “another devastating decision that aims to take our country backwards.”

Proving they are no longer believers in either precedent or stare decisis, they ignored the previous court’s ruling 15 years ago that EPA has regulatory authority over carbon dioxide and other types of pollution driving climate change.

Their aim is to hamstring the federal regulation of business. The core argument is known as the “nondelegation doctrine.” This holds that Congress, the legislative branch of the government, cannot delegate legislative authority to the executive branch. Since the regulatory bodies in the government are found in the executive branch, application of this so-called “nondelegation doctrine” brings the operation of the modern regulatory state to a screeching halt.

Chief Justice Roberts, clinging to his philosophy of inflicting death by a thousand cuts rather than a thrust to the hear, makes the decision on the basis of the “major questions” doctrine, which Roberts wheeled out and used for the first time in a majority opinion in this case. This “doctrine” holds that Congress cannot delegate the power to deal with “major” issues to an agency, since such “major issues” are the responsibility of Congress. In practice, this means that the Republican abuse of the Senate filibuster prevents any such laws passing.

Thus, with this decision, the Court has stopped the federal government from responding effectively to the existential crisis of climate change. This will have international repercussions since the inability of the U.S. government to take necessary action means that opponents of taking action in other countries will likely prevent progress in this as well.

Given the way the decision is written, the decision will apply not just to the EPA, but to the rest of business regulations as soon as the appeals the court invited can be created.

Demonstrating how radical this court is, this decision overturns Judge Scalia’s 2001 9-0 majority decision rejecting the nondelegation argument on the grounds that the court must trust Congress to take care of its own power.

Justice Elena Kagan’s dissent, joined by Justices Sonia Sotomayor and Stephen Breyer, argued that Congress in fact had properly given the EPA authority to act, on the basis that Congress had recognized agencies need to be able to respond appropriately to new and big problems. “Congress knows what it doesn’t and can’t know when it drafts a statute; and Congress therefore gives an expert agency the power to address issues—even significant ones—as and when they arise.” She referenced the 1992 decision, further noting that “[t]he Clean Air Act was major legislation, designed to deal with a major public policy issue.” “This is not the Attorney General regulating medical care, or even the CDC regulating landlord-tenant relations. It is EPA (that’s the Environmental Protection Agency, in case the majority forgot) acting to address the greatest environmental challenge of our time.” She concluded: “The Court appoints itself—instead of Congress or the expert agency—the decision-maker on climate policy. I cannot think of many things more frightening.”

Kagan went on to note the hypocrisy in the claim of the pseudo-conservative reactionary justices that they are “originalists” when in fact they are busy inventing new doctrines to achieve the ends they have already decided on. “The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get-out-of-text-free cards. Today, one of those broader goals makes itself clear: Prevent agencies from doing important work, even though that is what Congress directed.”

Of course Senate minority leader/chief congressional arsonist Mitch McConnell applauded this steaming pile of shit, saying it limited the power of “unelected, unaccountable bureaucrats.”

Demonstrating the new super-majority’s belief that “too much is not enough,” the court also announced it will hear Moore v. Harper next term. This is a case that will allow them to announced that state legislatures alone have the power to set election rules even if their laws violate state constitutions.

In case you don’t understand how important this is, state courts have played an influential role in the congressional redistricting battles following the 2020 Census. Judges reined in Republican gerrymanders in North Carolina and Pennsylvania, for instance, and rejected maps drawn by Democratic-led legislatures in New York and Maryland.

North Carolina is a purple state, with a legislature controlled by Republicans, a Democratic governor and an elected state Supreme Court with four Democrats and three Republicans. Trump won the state in 2020 by a margin of 50 percent to 49 percent over Joe Biden.

Analysts said the map created by Republican legislators after the 2020 Census would have given the GOP an edge in 10 of 14 congressional districts. Democratic justices on the elected state Supreme Court said the redistricting maps had a partisan tilt “not explained by the political geography of North Carolina.” They concluded the maps “are unconstitutional beyond a reasonable doubt under the free elections clause, the equal protection clause, the free speech clause, and the freedom of assembly clause of the North Carolina Constitution.”

The state’s Republican legislative leaders told the Supreme Court in their petition that state courts have no power to second-guess the legislature.

“By its plain text, the Elections Clause creates the power to regulate the times, places, and manner of federal elections and then vests that power in ‘the Legislature” of each State,’ ” they wrote. “It does not leave the States free to limit the legislature’s constitutionally vested power, or place it elsewhere in the State’s governmental machinery, as a matter of state law.”

But the state’s department of justice said North Carolina presents a poor example for the Supreme Court to examine the issue. That is because the legislature itself granted state courts a role in redistricting, they say.

“Two decades ago, the North Carolina General Assembly passed a law expressly codifying the state courts’ authority to review legislative redistricting efforts,” the state’s brief says. “At the same time, the legislature specifically authorized the state courts to ‘impose an interim districting plan’ in situations like the one giving rise to this appeal. The North Carolina state courts thus have not ‘taken it upon themselves to set’ federal elections rules — the state legislature itself designed a statutory redistricting regime that expressly contemplates the courts’ involvement.”

The Republican legislature appeals on the grounds the state court cannot stop their carving up of the state because of the “independent state legislatures doctrine.” This is a new idea from Conservatism Inc., based on the clause in Article II of the U.S. Constitution providing that “[t]he times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by Law make or alter such Regulations.” Those adhering to this theory ignore the second clause of that provision. They also point to another clause of the Constitution, that “Each State shall appoint, in such Manner as the Legis-lature thereof may direct, a Number of Elect-ors.”

Until now, these clauses have interpreted “legislatures” to mean the general lawmaking processes, which includes shared power with checks and balances among the three branches of state government. This radical theory now presented insists a “legislature” is the state legislature alone, with no check on its powers by state courts or state constitutions prohibiting gerrymandering. This interpretation first popped up in 2015, when Republicans in the state legilature wanted to get rid of an independent redistricting commission in Arizona that voters had approved. That year, the Supreme Court defeated that argumment, ruling the election clause did not bar Arizona’s voters from giving an independent commission, rather than the legislature, the power to draw congressional districts.

Justice Ruth Bader Ginsburg wrote for the five-member majority in Arizona State Legislature v. Arizona Independent Redistricting Commission: “Nothing in that clause instructs, nor has this court ever held, that a state legislature may prescribe regulations on the time, place and manner of holding federal elections in defiance of provisions of the state’s constitution.”

Adoption of this “theory” directly opposes the 2019 decision in Rucho v. Common Cause in which all members of the court — including Thomas, Alito, Gorsuch and Kavanaugh — agreed there was some role for state courts while rejecting a role for federal courts in settling partisan gerrymandering lawsuits. Writing the opinion, Chief Justice John G. Roberts Jr. Stated: “Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply” in policing partisan gerrymandering.

This is the doctrine that Trump and his allies pushed to keep him in power in 2020, with Republican state legislatures throwing out the will of the people over allegations of “faud” and selecting electors for Trump to send to Congress rather than the Biden electors voted for by the majority of voters in the election.

This would also give the power to state legislatures of controlling who can vote, and how and where they can do so through control over issues such as voter qualification, voting by mail and other election procedures. Elections commissions and secretaries of state would lose the power to administer an election, and state courts would lose the power to challenge gerrymandering or voter suppression.

Given that Republicans currently control 30 state legislatures due to gerrymandering and voter suppression in those states, this would give them the power to steal the 2024 election, as conservative judge J. Michael Luttig has been trying for months to sound the alarm about the threat. Luttig wrote in April, before the court agreed to take on the case, that “Trump and the Republicans can only be stopped from stealing the 2024 election at this point if the Supreme Court rejects the independent state legislature doctrine (thus allowing state court enforcement of state constitutional limitations on legislatively enacted election rules and elector appointments) and Congress amends the Electoral Count Act to constrain Congress' own power to reject state electoral votes and decide the presidency.”

In the one term Trump’s three illegitimate justices have been on the court, they have decimated the legal framework under which we have lived since the Civil War, taking power from the federal government, where Congress represents the majority, and returning it to states, where a Republican minority can impose its will. Thanks to the demographic skewing of the electoral system, Republicans in those states are now poised to take final control of the government.

Thirty-five years ago, when President Reagan nominated seminal originalist Robert Bork for the Supreme Court, Senator Edward Kennedy recognized the theory for what it was: an unraveling of the modern United States.

“Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.”

This is pretty much the state of things after the decisions announed in the past two weeks.

Kennedy concluded, “America is a better and freer nation than Robert Bork thinks.”

The Senator’s confidence may have been overly-exuberant.

A housekeeping announcement: I have a huge amount of work to do pulling together a book I have been writing that has to be turned in to the publisher Sunday night (Monday morning in Britain, where it’s headed). Thus, unless it’s announced that an asteroid is headed directly for us, this post and the others on the court posted this past week will have to do you for now. Have a happy Fourth of July and leave the fireworks for the polemical sort.

I hope all of you new free subscribers will decide to join the paid subscribers in keeping That’s Another Fine Mess operating. It’s only $7/month, less than the price of two Ventes at Starbucks.

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