Handcuffs on Democracy: When a court sworn to uphold the law becomes a threat to the rule of law
America is not just a country. It is an idea. But whose idea is it anyway? Peering through the mists of time, the current right-wingnut majority of the U.S. supreme court believe they can divine the original ideas of some very dead White men. On that flimsy basis, they rule by fiat.
They order states to remove sensible gun safety measures. Then they deny women reproductive rights by pretending that states can do whatever they want. They say that presidents cannot limit carbon emissions to tackle the climate crisis. And now they are ready to change the way we elect presidents.
Whatever you call the current crusade of this supreme court, their approach is not conservative. There is nothing stable or traditional about throwing out a half-century of civil rights and quite possibly a century of democratic practice.
This is a radical bunch of ideologues who have spent years projecting themselves onto their critics. For decades, the Republican party has picked activist judges while pretending to correct the notion of activist judges on the other side of the divide.
It is the same excuse that Fox News used for decades as it cosplayed the shows of an actual news division: it was just correcting the bias on the other side. If you can convince the suckers that the other side is misbehaving, you can justify pretty much anything.
That little ruse is the last refuge of scoundrels, dictators, and bankrupt real estate developers. It’s lovely to see the supreme court following their logic.
Which brings us to one of their last decisions in a very long list of reactionary and repressive opinions last month: their willingness to hear arguments about the fringe notion that state legislatures can set their own rules for federal elections. That includes picking whoever they want for president.
This just happens to have been the big wet dream of one Donald Trump in the weeks after he definitively lost the presidential election of 2020. An amazing coincidence that this group of eminent jurists should glob on to the electoral priorities of a comically incompetent sociopath who just happened to appoint three of them to a lifetime of unchecked power.
Who needs messy democracy when you can just have Republican rule?
Since most of the state legislatures have been gerrymandered into huge Republican majorities – and the electoral college skews power towards smaller states – this wonderfully undemocratic and un-American idea is now perfectly in line with the original intent of the founders and ratifiers.
The constitution may say that states can pick their own presidential electors however they want. But the electoral college has been decided by the popular vote since the 19th century when the states realized early in the nation’s life that all the other methods of picking electors led to widespread corruption.
So to return to the original intent of the founders just ignores more than a century of democracy – and the very idea that the United States somehow leads the free world.
To be frank, the threat to democracy posed by this supreme court is clear and present. But it did not start with Donald Trump. And it will not end with his shuffling off stage, in handcuffs or disgrace – if either are possible in this multiverse of madness.
Two decades ago, another supreme court took it upon itself to steal an election for the Republican candidate. That court decided to ignore all its own high-minded principles about state rights as it shut down a state-ordered recount of votes in Florida in 2000.
Its reasoning was so blatantly corrupt, the rightwing majority even declared that its own decision could not stand as precedent.
The “winner” of that stolen election was George W Bush who went on to appoint two of the justices who just voted to end abortion rights as we know them: Samuel Alito and John Roberts. According to a study commissioned by major news organizations, a full statewide recount would have handed Florida’s electoral college votes – and the presidency – to Al Gore.
That was, as they say, the tipping point that led to our current supreme state of upheaval. Once the court became just another political tool, it began its death spiral. No amount of novel legal fantasies about the founders’ ideas can paper over a rightwing putsch.
For all those many things that are not mentioned explicitly in the constitution – like abortion, marriage, the internet, or a democratically-elected presidency – our rightwing supremes have taken it upon themselves to imagine anything they like about what the founders were thinking.
Coming out of the July 4 holiday, it might seem churlish to observe that many parts of what we now see as the American idea were not, in fact, the favorite ideas of the founding fathers.
Their notion of a democratic republic was what you might expect from a men’s club whose property – landed and human – allowed them to define freedom for themselves.
They preferred presidents to be picked by an electoral college made up of men just like them. The people could pick the House, but real democracy would be easily demagogued by someone just like Donald Trump.
If we’re going back to their original intent, let’s try to be a little consistent, shall we?
The founders didn’t explicitly give the supreme court the powers this particular bunch of rightwing radicals has assumed for themselves. They didn’t say there should be only nine of them, or that they should serve until they die.
So if Democrats, and a handful of Republicans, are truly interested in defending democracy, it’s time to rein in the rightwing supremes who have used the court to grab power for themselves, ignoring their own court precedents and culture.
At the very least, they could introduce term limits and allow each president the pick of two justices in each term. The preamble to the constitution talks about “a more perfect union”, as if the American idea is a work in progress, not regress.
It is time for fundamental reform of American democracy – including the supreme court – before the radical right steals that democracy away forever.