SCOTUS v. America

 Well, that was certainly a week of SCOTUSIANA. Let’s see, they crushed abortion rights, removed the ability of EPA to regulate the environment, and trashed New York gun regulations.  So, what’s next? I assume someone will go after the FDA’s ability to regulate food and drugs. Can’t have the government messing with our food supply. And why would we ever want the government to oversee our drugs? I’m sure the money managers at all the large drug and food chains are our best guide to safety, right??

And guns . . . I mean why would anyone want to mess with the public’s ability to buy, sell, and use guns? We have such a good record, right? So, of course SCOTUS would intervene. They of course know so much about the quality of food and drugs. And who else but SCOTUS could possibly understand the social and physiological complexities of pregnancy? I’m sure that Brett and Amy will be our best guides.

And, what happens should one or both of the other two branches decides that the crew at SCOTUS has overstepped?  Is there actually a fix for having someone like Brett Kavanaugh overseeing our American system of Democracy for the rest of his natural life?  Our founding fathers decided that SCOTUS should be different from the other two branches.  Mainly, it would seem that SCOTUS is intended to serve as a check on the other two branches.  The Executive and the Legislative branches are both fairly explicitly political.  Over time, those two branches are elected by the people, based at least partly on what each branch promises to do for the people who elect them.  And those promises tend to follow political party dogma. Republicans today seem to favor relatively minimalist government prescriptive and oversight policies. They seem to want private capitalists to run our country via money channels. Democrats are perhaps a bit more mixed in what they favor, but generally want more public investment in things like health care and public assets (like roads, parks, public waterways), plus relatively greater oversight of private sector business practices. They also favor paying for government services through public taxation, whereas republicans seem to disfavor taxes, at least of their ruling classes.  Ronny Reagan, for example, seemed to believe in the theory of the Laffer Curve:

The Laffer Curve is a theory formalized by supply-side economist Arthur Laffer to show the relationship between tax rates and the amount of tax revenue collected by governments. The curve is used to illustrate the argument that sometimes cutting tax rates can result in increased total tax revenue.

Reagan was mocked greatly, since he managed to produce some impressive national deficits. The federal deficit went from about $78.9 billion at the beginning of Reagan’s presidency to $152.6 billion at the end of it. At points between 1983 and 1986, the deficit was actually more than $175 billion. Now, to be fair, the two Bush’s managed to produce even larger deficits than Reagan.

Now, the Court has relatively little to do with any of that, except to the extent that individual justices might favor one party’s policies over the other.  But at least in theory, SCOTUS is intended to rise above the mud of electoral politics and decide cases based on law, the Constitution, and our system of democracy.

But if we assume that individual justices are appointed by the political creatures who lead our government, we can see that those justices will be viewed by the folks appointing them as either friendly or not to the policies of the appointing crowd.  Largely we have been relatively fortunate in that regard.  But like many things, SCOTUS appointees have been increasingly politically biased towards one party or the other, but mainly republican. Trump, managed to get three appointees approved, whereas McConnell refused to even review Obama’s choice, Merrick Garland. So, because Trump is Trump, we now have three justices who seem highly questionable. And with Clarence Thomas reliably ultra-right wing, the Court has suddenly swung to hard core right wing republican. With the latest three decisions –killing Roe v. Wade, opposing New York gun regulation, and opposing the workings of EPA, we now seem to have a Court that is borderline out of control.  It is now to the point where opposing folks are at least examining alternative strategies.

And what are some of these strategies?  Well, one is to kill the legislative tactic of filibuster.   With filibustering, passing a law requires 60 Senate votes, which neither party has.  So, it would seem natural to at least turn to this practice in an attempt to return to a system in which the majority (i.e., 50+%) can in fact pass laws.

But the other approaches being examined now are looking to modify the Supreme Court itself.  Several approaches include:

1.       Add more seats to the Court. Under one proposal known as the “balanced court solution,” the court would be expanded from 9 justices to 15. 10 justices would be selected through the existing process, but would be split evenly between Democratic and Republican appointees. Those 10 justices would then select 5 judges from lower courts for the Supreme Court to serve with them for a year. This solution would make the confirmation process less partisan and insulate the Court from politics. 

2.       Alternatively, the Supreme Court could be comprised of a rotating panel of appeals court judges, who would cycle through the Supreme Court on a scheduled basis. Federal judges already serve on rotating panels on lower courts. Doing the same for the Supreme Court would eliminate the current high-stakes nomination process, and make the Supreme Court less partisan. 

And some are looking to methods whereby justices who have some vested interest in an outcome could be forced to recuse themselves. For example, Clarence Thomas’ wife was an active participant in Trump’s attempt to overthrow our government on January 6^th. Thomas should not be anywhere near any proceeding that involves the insurrection.

Now revising the Supreme Court at all is one of the most difficult challenges facing any government legislators. So, it will be at the least fascinating to see whether any government we elect is capable.

However, it begins to look like we face a crisis in the actual continuation of our system of government. For reasons I cannot fathom, our republican party seems to have moved far in the direction of neo-fascism. With Democrats blocked at one level by the filibuster, and at the other by a “bent”, if not fully corrupted SCOTUS, it will be interesting I am sure to historians to see how all this turns out. WE may be witnessing the beginning of:

The Decline and Fall of the American Empire.

I am sure some historian has already begun his first chapter. Stay in tune and watch your neighborhood book stores.