After a few thoroughly depressing posts heralding the End of The American Experiment, I sat down to contemplate how we could possibly survive the sweltering venom of the boiling witches’ brew in Washington, DC.

“Double, double toil and trouble; Fire burn and caldron bubble.”

Unfortunately, in our 21st century American version of a 17th century Shakespearean tragedy set in 11th century Scotland, the three witches have morphed over time into six.

The more I consider both the text and tone of the recent Supreme Court rulings, the more I am convinced that they are mere harbingers of even more partisan incantations yet to come.  With each term, the Mad Majority will increasingly envision their spells as being so divinely inspired that any supporting “Constitutional” arguments will be mere afterthoughts.

“By the pricking of my thumbs, something wicked this way comes.”

Indeed.

Okay, perhaps I should move on before my vague Macbeth analogies become…

“…a tale told by an idiot, full of sound and fury, signifying nothing.”

And… NOW I’ll move on.

I’ve been asked why I haven’t devoted multiple posts to the January 6 committee’s work to-date.  It’s certainly important, fascinating, and worthy of review.  I’d personally like nothing more than to see the immediately former President and his co-conspirators indicted, convicted, and thrown in jail.

But here’s the deal:  They are surprisingly not our biggest concern at the moment.

Our immediate focus must be on protecting our democracy by guaranteeing that Americans can freely and fairly elect their own leaders.  We cannot allow the Supreme Court and rogue Secretaries of State to put their thumbs on the scale to favor the Republican party in perpetuity.  I don’t want them to favor Democrats, either.  I just want them to stay the hell out of politics.

So how do we do this?  I think there’s a path, but it’s not an easy one.

Several members of Congress and the President have proposed a Senate filibuster carve-out to place abortion protections into law.  While well-intentioned, this is a short-sighted approach.  It’s extremely doubtful that all 50 Democratic Senators would support this carve-out and, even if passed, a subsequent change to Republican party control would simply see the law repealed.  Executive actions protecting medication abortions would seem to be much easier and just as long-lived.

Other members of Congress want a Senate filibuster carve-out to expand the Supreme Court.  This is also short-sighted.  The Court would need to be expanded from 9 to 13 in order to change the 6-3 Republican majority into a slim 7-6 alternative. It’s even more doubtful that all 50 Democratic Senators would support this carve-out and, even if passed, a subsequent change to Republican party control would simply see the Court expanded yet again from 13 to 17 to restore the Republican advantage.

Any Democratic weakening of the Senate filibuster – even for one carve-out – would without question be answered by a complete elimination of the filibuster whenever Republicans retake majority control.  They’ll likely eliminate it anyway, but this would just make it a done deal.  Thus, if Democrats are going to tweak the Senate filibuster, they’d better make it damn worthwhile.

My first preference would be to just go ahead and ditch the Senate filibuster altogether.  In the worst case, Democrats would have until January 2023 to pass as many laws as they could.

Until just last week, I would never have supported such a drastic measure as I’ve always held onto the notion that the filibuster forced the parties at least try to work together.  I’ve now sadly closed the book on that fairytale view of the world.

Unfortunately, Democrats certainly don’t have the 50 Senate votes to completely eliminate the filibuster.

So.  What to do?  Well, whatever it is, it has to be something that has a prayer of garnering the support of all 50 Democratic Senators.  It will have to be a carve-out and I can think of only one that might get the necessary support and be meaningful.

Most high school government students know that there is absolutely nothing in the Constitution that explicitly names the Supreme Court as the final arbiter on questions of constitutionality.  In 1803’s Marbury v. Madison, the Supreme Court gave themselves that power and it has been accepted ever since only by mutual agreement.

Was the power of judicial review implied by the Constitution?  Sure.  But just as the Court has now ruled that the right to privacy doesn’t exist since it wasn’t explicitly written into the Constitution, the concept of judicial review also doesn’t exist.  Furthermore, whatever weight might have been given to the long-standing precedent of Marbury v. Madison can now be similarly discounted.  See how that works?

While I don’t propose a complete elimination of judicial review, I do propose that we limit it.  And I propose that we do it now.

Article III, Section 2 of the Constitution gives the Executive and Legislative branches, acting in concert, the power to strip the Supreme Court of appellate jurisdictions.  They can thus declare that specific laws and/or entire issues are beyond the scope of judicial review.

I thus propose a Senate filibuster carve-out to:

1. Pass a new version of the Voting Rights Act guaranteeing nationwide voting rights.  Versions of this already exist.  Pick one that all Democrats can accept.  It doesn’t have to be perfect but it should not remotely appear to be partisan.
2. Pass a law removing the new Voting Rights Act and all issues related to redistricting from the jurisdiction of the Supreme Court.  The upcoming case in North Carolina would be immediately removed from their docket.

To be sure, if Republicans win the Presidency, the Senate, and the House in 2024, they could repeal both laws.  But would they?  It’d be a tough political sell to repeal a sane Voting Rights Act and an even tougher sell to essentially remove power from state courts.

Could Democrats get all 50 Senators on board with this idea?  That’s the tough part.  Manchin and Sinema are the most likely to balk, but both might be convinced to support this particular effort purely on the basis of their own political survival.  Actually, given the importance, I’d also be in favor of giving them pretty much anything they want.  If bribery works, bribery it is.

In any case, if Democrats don’t do something now, their losses in 2024 will be absolutely guaranteed and permanent.  It’d be nice if they could just level the playing field and make the 2024 elections a fair fight.  Of course, Democrats will still need to get their act together and play offense for  a change.  Personally, I’d make this swipe at the Court the center of both their 2022 and 2024 campaigns.  But that’s a topic for another day.

“Tomorrow, and tomorrow, and tomorrow, …”

Three Supreme Court posts in a row.  This may be the start of an unfortunate trend.  While the Court’s decisions can be very difficult to parse, they are nonetheless very important.

As a prelude, I’ll note that Ketanji Brown Jackson was sworn in this week as the first black woman on the Supreme Court.  While we should celebrate the elevation of a well-qualified justice who also happens to be a member of a heretofore unrepresented minority, we must also mourn the loss of Stephen Breyer’s voice on the Court.  Breyer has been a fair and articulate jurist who has calmly and honorably defended the Constitution for 28 years.

Unfortunately, we must also mourn the fact that this change does not alter the ideological lock that the pseudo-conservative (read: blindly Republican) majority now has on the Court.

While news cycles have been focused on Dobbs, it is also worth paying VERY close attention to other recent and upcoming actions of the Court.  Some are obvious intrusions on democracy; others are more subtle yet even more insidious.  Below is a brief rundown of some of the cases decided by the Court’s new owners in their very first term.

Dobbs v. Jackson

I’ve already weighed in on Dobbs.  This 5-1-3 decision overturning Roe v. Wade does seem to stand above all of the horrible decisions rendered by the Supreme Court this term – not just for the massive ramifications that are being immediately felt throughout the nation, but for all of the harrowing decisions that will undoubtedly follow both directly and indirectly from the public assassination of a long-standing precedent and the evisceration of the right to privacy.

New York State Rifle & Pistol Association v. Bruen

In a 6-3 decision, the Supreme Court decided that states can’t place limitations on individuals carrying guns in public.  While New York is likely to test the boundaries of the decision, the text of the ruling seems crystal clear:  Reason is off the table.  There can be no limits and all challenges will fail.  Wanna carry your AR-15 onto a children’s playground?  State laws can’t stop you.

So much for states’ rights.  Apparently, such rights are only valid when they don’t conflict with the opinion of the Supreme Court majority.

West Virginia v. EPA

While the case itself may seem a bit boring, the decision is definitely not.

The boring part:  The Court just took away the EPA’s power to regulate carbon emissions at power plants under the Clean Air Act as passed by Congress in 1970.  That act gave the EPA the power to regulate any substance that “causes, or contributes significantly to, air pollution” and that “may reasonably be anticipated to endanger public health or welfare.”   The EPA’s regulations have always been subject to the desires of the resident administration and, indeed, such regulations have changed as expected over time.  Whether it was a good idea or not, Congress unquestionably empowered the EPA to make and enforce environmental regulations.  Or not.

A 6-3 Supreme Court majority, however, decided that the Biden administration’s EPA no longer has the right to regulate CO2 emissions.  Their legal argument is based upon an expansion of the Court’s “major questions doctrine.”  That “doctrine” – invented by the Court out of thin air and found nowhere in the Constitution – contends that the Court can strike down any regulatory action of “vast economic and political significance.”  Since the definition of such significance is entirely up to the Court itself., Justice Kagan’s dissent rightfully called out this “frightening” new judicial power.

The Court’s majority just gave themselves the unilateral authority to cherry-pick which administrative regulations they like and which they don’t – not just within the EPA but across the whole government.  This effectively takes regulatory power out of the hands of agencies of the executive branch – staffed with professionals in their fields and overseen by elected officials – and migrates that power to a handful of unaccountable justices with no expertise at all in the related fields.

Children, can you spell “Activist Court”?  I knew you could.  Welcome to Mister Robert’s Neighborhood!

Kennedy v. Bremerton School District

This 6-3 decision is simply bizarre.  The ruling ostensibly finds in favor of a high school coach who was fired for exercising his own personal right of religious freedom to silently pray at the 50-yard line after football games.  Gorsuch’s opinion for the majority claims that the coach “offered his prayers quietly while his students were otherwise occupied.”  Few could or would reasonably argue with the ruling given that scenario.  Cool.

Well, except that Gorsuch’s description of the case is not at all consistent with the facts.

I don’t doubt that the coach is sincere, but his prayers were definitely not offered privately nor in silence.  Nor were the prayers offered by spontaneous gatherings of students.  As photographs and videos clearly show, these were large, public, non-silent Christian devotions taking place on school grounds that were organized and led by an employee of the school who had both real and perceived power over the participants who knelt around him.

Sure, the coach claims that player participation was entirely optional – and that could well have been the case.  However, the possible perception – as verified by the students’ parents – was that those students who didn’t participate in the prayers might be ostracized and/or might get less playing time as a result.  While your boss likely wouldn’t require you to buy Girl Scout cookies when he brings his daughter by your office, raise your hand if you would feel no pressure whatsoever to smile and buy that box of Thin Mints.

“Pray to Play” is not only a bad school policy.  It’s an insult to anyone whose moral compass compels them to pray in silence.  And it most certainly should not have been enshrined as a Constitutional right.

Carson v. Makin

The specific state program in question paid the private school tuition for those students in rural areas who did not have easy access to public schools.  While the program did not exclude religious schools, it did require that all eligible private schools provide students with an education that aligned with secular state standards.

In a sweeping 6-3 decision (you may notice a trend…), the Court effectively overrode decades of precedence supporting the separation of church and state.  The overly broad ruling not only permits the use of state money to fund religious schools, it now requires it – even if such schools do not meet state standards and even if such schools are openly institutions of religious indoctrination.

Around 37 state constitutions prohibit their state governments from funding religious institutions, including schools.  This ruling invalidates all of those bans.  As Justice Breyer noted in his dissent, the majority opinion has the potential to completely dismantle secular public education in the United States by enabling parents to bail out of the public school system and demand public tax money for a parochial education free of any standards.

If the Three R’s all stand for Religion, we’re not going to have to worry about losing world leadership to China.  The next generation won’t even be able to find it on a map.  Or spell it.  Or count the number of ways we’re gonna get screwed.

Biden v. Texas

What, you say?  The Biden administration actually won this case!  Yeah, but it was a 5-4 decision when it should have been 9-0.  The case was specifically about whether the Biden administration had the power to end the previous administration’s “Stay in Mexico” immigration policy.  While I understand the political preferences on both sides of the argument, the legal issue was incredibly simple.

The case boiled down to whether or not a new administration can reverse an executive policy implemented by a previous administration.  Regardless of one’s political leanings, the answer should be resoundingly affirmative.  That’s kinda what elections are all about.

While there was some legal crap in the dissent, the minority’s opinion was unabashedly political – arguing the merits of the immigration policy and not the legality of its suspension by a new administration.  Seriously?  Even worse, Kavanaugh wrote a separate, narrow concurrence with his deciding vote that fully agreed with the minority’s political stance but begrudging acknowledged that maybe this wasn’t the Court’s issue to sort out.

So, by one vote, the Supreme Court decided that elections matter.  Woo hoo.

Moore v. Harper

Sure.  This case doesn’t come before the Court until this fall.  The likely outcome, however, is grim enough to warrant an early review.

The issue comes to the Court after the North Carolina State Supreme Court ruled that the NC legislature’s gerrymandered congressional map violated the state’s constitution.  The gerrymandering was obvious and not itself contested.  NC is fairly equally divided between Democrats and Republicans but the Republican-drawn map would likely give Republicans 10 of the state’s 14 congressional seats.

The NC legislature is going to the Supreme Court with a radical theory that they alone have the power to fully regulate NC elections – with no oversight whatsoever from state or federal courts.  They don’t argue that their map isn’t a gerrymander; they argue that they can do whatever the hell they want.

If the Supreme Court rules in their favor, the gerrymandered NC map will prevail.  That, however, won’t be nearly the worst of it.

If state legislatures are given sole and absolute power over elections in their respective states, they can quite literally guarantee their own eternal hold on political power.  They can draw whatever maps they want.  They can decide who can vote and who can’t vote.  They can – and will – ignore any popular vote in Presidential elections (or perhaps not even hold them) and send their own slate of Electors to the Electoral College.

Note, of course, that any ruling will apply to all 50 states.  Since Republicans fully control the legislatures in 30 states – including most of the current swing states – the Democratic party could cease to be a factor and elections as we know them in America could cease to exist.

Given the blatantly partisan Supreme Court majority, anyone wanna place a bet here?

 

Well, great.  I’ve now managed to even depress myself.  I think I’ll go read something a bit more uplifting.  Like “The Grapes of Wrath” … or “Flowers for Algernon” … or ”Lord of the Flies”…

For the five people on the Supreme Court who are unilaterally turning back our societal clock, I’ve resurrected a few real ad campaigns from decades past…

My father taught me that it was always best take a breath and calm down before responding in the moment out of anger.  It was good advice and it still is.  But, well, I’m absolutely livid.  And I have this blog.  Sorry, Dad.  I did at least edit my first draft to remove (most of) the expletives.

Five justices of the Supreme Court just overturned Roe v. Wade and Casey v. Planned Parenthood, reversing a 50-year-old precedent.  While it wasn’t a surprise, it was still a gut punch.  As of today, roughly 40 million women no longer have the right of autonomy over their own bodies.

The majority‘s claims of states’ rights on the issue of abortion is a sham, particularly when the same jurists just signed another opinion – in the same week – telling states to take a hike by overruling long-standing state-level concealed-carry gun laws.  Again unsurprisingly, the current Supreme Court majority has made it clear that they recognize states’ rights only when they feel like it.

On the issue of abortion itself, there was a middle ground – favored by Chief Justice Roberts – that would have weakened Roe & Casey but would not have overruled them.  While not a perfect solutions for anyone, it would have been a reasonable compromise.  This, however, was not nearly enough for the five justices.

Ignoring the essential judicial concept of stare decisis and completely discounting the fact that 80% of Americans were in favor of retaining Roe in some form, five people summarily imposed their will upon everyone else in the country.

And, as bad as the decision is, the downstream reality is actually much, much worse.

Make no mistake:  This ruling was a purposeful middle-finger by five individuals to the Constitution, to their judicial oaths, and to the American populace.  And this is just the beginning.

Alito has been an unapologetically angry jurist for decades, railing against any and all social or cultural changes that, in his mind, diminish the predominance of the straight white male with a gun that his version of the Founders so obviously wrote the Constitution to protect.  Thomas and Kavanaugh are still pissed off that Democrats had the gall to even listen to women who felt harassed by them – and the two are positively orgasmic over any opportunity to remind their tormentors that they were confirmed anyway.  Barrett, a Scalia wanna-be without the intellectual heft, has consistently shown her preference for deciding cases based upon her personal worldview and only then searching for legal justifications – or, more likely, simply latching onto the justifications of others.  Gorsuch, another Scalia wanna-be, but with considerably more intellectual prowess, is generally more subtle with his Constitutional interpretations, but is still predisposed to invent justifications to impose his own version of morality upon others.

Thomas Jefferson himself understood that interpretations of the Constitution would need to be dynamic or could otherwise be likened to requiring a man to wear the same coat he wore as a child, disregarding any concept of growth.  Scalia, on the other hand, championed the concept of originalism – favoring an interpretation of the Constitution based solely on the words as written.  While a young Scalia was at least consistent in his philosophy, he modified his approach over time to suit his own preferences.  In turn, the majority of current jurists have further morphed the concept of originalism into a pseudo-intellectual cloak to restrict government actions that they don’t personally favor and to enable government overreach when it suits their purposes.

Related to the issue of bodily autonomy as just trashed by the Court, there will now undoubtedly be countless new laws and rulings to restrict or eliminate access to medication abortions, access to contraceptives, interstate commerce for pregnancy-related medications, interstate travel to obtain reproductive medical care, third-party assistance to individuals who seek such care, a woman’s conduct during pregnancy, and even access to related information.  The floodgates are now open for all manner of intrusive measures to make women considerably less than second-class citizens.

Women, however, are definitely not the only people impacted by this remarkably broad ruling.  By limiting the application of the Constitution’s due process clause, a vast number of other Supreme Court rulings are now in question.  And, lest anyone believe that to be an overly dramatic concern, Thomas took the time to make damn sure we didn’t miss it.  In his concurring opinion, he specifically stated that this ruling should now be applied to overturn other Supreme Court decisions related to the right to privacy – which, apparently, no longer exists.

Note that “decisional privacy” has long been considered an implicit right derived from other rights that are explicitly enumerated in the Constitution.  The number and scope of rulings based upon the right to privacy are truly massive and the potential impacts of overturning them could seriously transform American society.

A short list of rulings that are now directly on the table include decisions that allowed same-sex marriage, same-sex sex, consensual extramarital sex regardless of orientation, the use of contraceptives, marriage outside of one’s race, refusal of unwanted medical treatments, and the implementation of numerous data privacy laws related to healthcare records, online search histories, cell phone location data, etc.

Indirectly, the decision by the majority to easily disregard precedent upon precedent also signals their willingness to do so for other Supreme Court rulings unrelated to privacy.  In their dissent, Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan wrote that “the Court betrays its guiding principles” and that the decision “undermines the Court’s legitimacy”.

Or, to put it another way, the Supreme Court is now officially just another bunch of partisan hacks – but with lifetime appointments and unchecked power.

This is a sad day for America.

There are many stories in the news these days that irritate me.  It’s not a particularly high bar.  One story, however, struck a particularly raw nerve.

Back in 2016, the so-called “Religious Right” made a bargain with the devil to flush any pretense of spiritual convictions and offer their unqualified support for the former President – an individual who could not be remotely mistaken as having any moral compass whatsoever.  In return, they asked for a Supreme Court majority that would overturn Roe.  And their bargain appears to have paid off.

And now, rather than perhaps regretting the consequences of electing a wanna-be despot as the leader of the free world, they are now drooling over what other freedoms they could possibly trample under the blasphemous cover of religion by taking control of Congress and the White House in 2022 and 2024.

Ralph Reed’s “Faith & Freedom Coalition” held their annual conference last week in Nashville and the gathering was an insulting affront to both faith and freedom.  The speaker list at this particular conference was a virtual Who’s Who of pandering snakes, self-appointed morality police, demagogues, and false prophets.  Sadly, there are more far-right politicians who missed the conference itself but who nonetheless share these descriptions.  Few of these people have shown adherence to anything resembling true faith nor, given their incessant attacks on the validity of the 2020 election, have they shown any regard for true freedom.

I flatly refuse to cede any moral high ground to any of them.  While I believe that the majority of people who might tangentially align themselves therein are good people with generous hearts and the best of intentions, I also want to believe that they can recognize the dangers inherent in their leaders who use religion purely as a means to a political end.  Not only do these leaders have no monopoly on morality, they are a corruption of morality.

Below is a collection of philosophical notes that I have hesitated time and again to turn into a post.  It’s simply not a topic that I often discuss and is one that is full of landmines.  While my experience suggests that my opinions are not at all uncommon, I’ll offer them here as my own – repeat: my own – vague understanding of a completely unorganized and purposely unnamed anathema to the “Religious Right”:

• We are guided by an internal moral compass that we may each independently interpret as a religion, a philosophy, a belief system, a spiritual confluence, or whatever.  As a group, we are inclusive and not particularly interested in labels.
• Our compass is an intrinsic part of who we are and how we view the world.  We strive for it to be consistently reflected in our words and deeds.
• We generally do not wear our compass as a badge.  We can accept those who do, so long as they understand that the badge grants them no authority whatsoever, moral or otherwise.
• We are tolerant of others’ compasses and expect them to be tolerant of ours.  We are only intolerant of subterfuge and of intolerance itself.
• We strive not to force our compass upon others and we expect others not to try to force theirs upon us.
• No manifestation of any compass, particularly in terms of any formal religion, should be a requirement for an American passport.  We firmly support the separation of Church and State – not just to keep religion out of politics, but also to keep politics out of religion.  We contend that religious beliefs should never be imposed upon others via political power.  We contend that political agendas should never be advanced under the guise of religion.
• Our compass, however, certainly informs our political views and preferences.  For those of us who lean to the American political left, our desire to protect the environment is directly related to our intrinsic respect for it.  Our call for universal healthcare reflects our empathy for the sick, the poor, and the powerless.  Our advocacy for reasonable firearm regulations is rooted in our desire to protect the most vulnerable members of our society.
• We readily acknowledge that others’ compasses may sincerely lead them in different directions on the political issues of the day.  With these people, we welcome informed debate and hope that common ground can be found.
• Unfortunately, we also acknowledge that there are many people who only pretend to have a moral compass and yet present their counterfeit compass of convenience as better than others.  We consider these people to be supremely dangerous to society.
• We do not have all the answers.  We are appalled by those who claim they do.

Please note again that my obvious disdain for the “Religious Right” is most certainly not directed at Christians, nor at evangelical Christians, nor at Republicans in general.  For example, while I could fill a separate blog detailing my many issues with Mike Pence’s political views, I can still respect his general adherence to his own internal moral compass.  Indeed, all true Christians, regardless of their political affiliation, share a basic moral compass by definition – as do all true Muslims, Hindus, Buddhists, Jews, etc.  And a secular moral compass is no less valid than a religious one.

My issue is with those individuals who wield religion as a political hammer with little regard to the underlying tenets of said religion.  Whatever may be one’s personal definition of Hell, I pray that it features a dark, windowless room where these people are eternally tortured by their own hypocrisy.

Since I seriously doubt that the vast majority of speakers and attendees at the above conference have actually read the Book which they so loudly gathered to ostensibly promote, I’ll close by offering them one brief excerpt:

And when thou prayest, thou shalt not be as the hypocrites are: for they love to pray standing in the synagogues and in the corners of the streets, that they may be seen of men. Verily I say unto you, They have their reward.  But thou, when thou prayest, enter into thy closet, and when thou hast shut thy door, pray to thy Father which is in secret; and thy Father which seeth in secret shall reward thee openly.

– Matthew 6:5-6 (KJV)