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.

The Fun Continues

 

So, now we have yet another SCOTUS opening about to appear.  Justice Stephen Breyer will retire at the age of 83. He may offer President Biden his only opportunity to affect the Court, as none of the other justices are at or near retirement.

The essential question here is whether Biden will be allowed to appoint a new Justice to replace Breyer. It seems clear that McConnell and his republican allies will do everything they can to interfere with or outright prevent Biden from making such an appointment.

The fact that McConnell prevented Obama from making an appointment with nearly a full year left in his term, whereas he allowed Trump to make an appointment within months of the end of his term suggests that McConnell has no ethics and knows only power, of the sort that the fascists of the Land practice.  Given that McConnell oversaw three Trump appointees, each immeasurably worse than the last, it seems clear that there will be a fight.

And so it may come down once again to Manchin and Sinema. In fact this may be the last test of that wannabee Democratic duo. Should they fail this final test, they can expect no further support from the Democratic Party, and will slink into the gutter of republican politics forever.

It is widely rumored that Biden will nominate a Black Woman to the SCOTUS post. Who are the possibilities? The following candidates are at least high on the list:

Political pundits suggest that Ketanji Brown Jackson is a potential front-runner, if there is a SCOTUS vacancy during Biden's presidency. Biden appointed Jackson last spring to serve as a federal appeals court judge in an effort to leave his legacy on the courts after former president Donald Trump appointed white men as judges at the highest rate in decades.  Jackson was also on president Barack Obama's Supreme Court shortlist in 2016. 

 

Among the other names being circulated as potential nominees are California Supreme Court Justice Leondra Kruger, prominent civil rights lawyer Sherrilyn Ifill and U.S. District Judge Michelle Childs, whom Biden has nominated to be an appeals court judge.  Childs is a favorite of Rep. James Clyburn, D-S.C., who made a crucial endorsement of Biden just before South Carolina's presidential primary in 2020.

 

Oddly perhaps, Kamala Harris is also on the list of potential candidates. And yes, it is apparently possible to appoint a sitting Vice President to the Court, and she certainly fills the “Black Woman” criterion. But here, the question is Why? Why would Biden appoint Harris who is at least nominally in line to become President should he die in office from aging or simply retirement.  The rumors apparently at least suggest that Biden and Harris are less than the “perfect couple” in the White House.

 

So Harris??? That would be odd, at best from my perspective. Harris is a pretty fair candidate to run for the Presidency in 2004 or 2008, so I assume she might prefer to place her bets there.

I actually wondered about Obama as a SCOTUS candidate. But again, he is a retired President and can still claim the public’s attention whenever he chooses. Oh and there’s that “Black Woman” thing. Since Obama is a Black Man from Kenya, he probably won’t make the cut  (hahahahahahaha).

 

It’s really interesting how American politics has changed over the very long period of my lifetime. While it has always been the case that conservative (Republican) presidents largely have appointed conservative justices and more liberal presidents  the opposite, there used to be vocal arguments, but, until Obama, at least civil behavior by the Senate. But a Black President, coupled with the Power-mad hunger of the McConnell crowd of near fascists combined to reverse the apparent course of history. It is no longer the case that civility continues to prevail. Mitch McConnell now assures that rabid discourse will forever govern American politics in our Capitol. When he refused to allow Obama’s appointee, Merrick Garland to move forward, while accelerating Trump’s appointees (think hard about McConnell pressing forward with someone as awful as Brett Kavanaugh), suggests that no ethics exists within the McConnell court.

And so it comes down, once more sadly, to Manchin and Sinema. If they cannot even support this action by Biden, they surely do not deserve any further support from the Democratic Party.  And so we will see how far down to the path to our demise America will move with this process.  That old Doomsday Clock is ticking guys, and there ain’t much time left.  

SCOTUS

Wow, a truly historic and amazing decision. With Roberts siding with the four thinking justices, they have now accorded constitutionality to Obama's health care law. How good must that be for the 40+ million previously uninsured? Maybe now, Mr. Scalia will take EJ Dionne's advice and retire from the court to resume his political career out of the closet--he may be the first openly "closet-republican" now outed.
But enough of the SCOTUS dregs (aka Big Tony). We must applaud Mr. Roberts and his four colleagues for considering the totality of the issues facing the Nation and come down on the side of rationality, as well as the ultimate good of the American people. Perhaps now we can consider moving the issue along to begin thinking of a true single payer system, in which we move insurance companies out of the decision mix. Now that would be truly monumental.
But, for the moment, we should take our wins as they come.
Thank you Mr. Roberts and your thinking colleagues.