The Supreme Court Shreds the 1st and 14th Amendments

Talked to a Republican about Trump lately? Expecting some of them are finally “getting it” about democracy, insurrection, etc.?

No. They aren’t. You’ll hear a lot of reasons they still support him. But, sooner or later, you’ll hear: “he kept his word on judges.” And, well, it’s hard to argue with that one. He promised he’d appoint justices who would repeal Roe, he got three who all went up and gave Susan Collins a sincere look and blathered about precedent. And, amazingly, they’re going to repeal Roe any day now.

It’s only a dress rehearsal. Any day now, they seem poised to make a vast expansion of open carry rights even in states that restrict it (New York State Rifle and.Pistol Association vs. Bruen).

And, on the first day of summer, out came a 6-3 decision in Carson v. Makin, which rules that a state government cannot bar granting of state aid to religious schools. In Maine, many districts don’t have a public high school and in such cases the state will pay tuition to a private school. If so, religious schools can’t be barred. Even if the school, as one of the schools in “Carson” does, says it expects its teachers “to integrate biblical principles with their teaching in every subject” and teaches students “to spread the word of Christianity” or requires all its teachers to be born again Christians. So much for Jefferson’s “wall of separation.” The reason given by our Court? Well, otherwise, the state would be interfering with “the free exercise of religion.”

Do you like that?  Well, you can confidently bet that the prohibition against public, semi-mandatory prayer in schools will be gone in a year. It's the exact same logic. It’s been coming for a while. They’re following up on decisions in Hobby Lobby that “free exercise” means denying female employees medical services and Catholic Charities says “free exercise” means it’s ok to discriminate in delivering social services.

But that’s not the end. The Trump Supreme Court is just getting started.

Think about the structure built up by the Warren Court: banning segregation (Brown; Loving; and many others); right to privacy (Griswold); restrictions on search (Mapp and others); banning mandatory Bible readings and “voluntary public prayer in schools; expansion of free speech and the “malice” clause; the Miranda warning. “But those are all part of the legal landscape,” you say? Yeah, so was Roe. Make a case for any one of them that this court COULDN’T POSSIBLY reverse it. How about a literal 10th amendment decision: the federal government can’t do anything unless it’s specifically mentioned in the Constitution. So, War department, Patent Office, Census Bureau, and pretty much nothing else. Not out of the question.

They’re already looking at one case (West Virginia vs. EPA) that could severely limit the EPA’s regulatory and enforcement authority.

And there’s no way to stop it but winning elections, year after year. No, forget expanding the courts. It’s an idiotic idea. We can’t elect enough Dems to break the filibuster, but we’re going to upend the Constitutional balance? The Dems hope is to appoint more judges. Biden is off to an excellent start. In his first year, he got more federal judges appointed and confirmed than any president in more than 50 years. And it was an extremely diverse group. If he can keep doing it for four years, he’ll make a difference. To keep doing this, we need two things: a Democratic president and a Democratic senate. That latter part is brand new, but McConnell has said if he gets the majority back he’s prepared to confirm no judges.

If the Dems hold the Senate in 2022, Biden will get a chance to make a real difference. If they hold the presidency and Senate in 2024, things could really start changing. Clarence Thomas will retire some day. So will Alito. But so will Kagan. Who appoints their successors? That’s the ballgame.

How did we get in this shape:? Republicans will vote for a candidate they don’t especially like to get judges. Democrats won’t. It’s that simple. Because of a few hundred thousand progressive voters in 2016 who “just didn’t like Hillary,” we’re about to lose the Great Society and New Deal. Just like, in 2000, Nader voters elected Alito and Roberts. Don’t compound the mistake in 2022.