I was wrong.
No surprise to anyone who knows me, of course, but I need to say it out loud because I was wrong about something very important to the future of our country.
Several months ago I argued that progressives should not question the integrity of the conservative Supreme Court justices no matter how wrong we may believe their decisions happen to be.
Instead, I suggested, we should give them the benefit of the doubt and trust that they are trying to make the best decisions they can. Two recent decisions have made me realize how wrong I was about that.
In both the Texas abortion case from a few weeks ago and this week’s Alabama redistricting decision, members of the conservative majority have shown the degree to which raw politics are shaping their decisions.
Both decisions were “shadow docket” rulings, which means the Court issued an emergency order because it believed that without an immediate decision individuals would suffer “irreparable harm.”
Instead of preventing “irreparable harm,” however, in these two cases the Court itself caused it.
It allowed the Texas law that bans abortion after six weeks to go into effect until it is fully adjudicated. By lifting the “stay” lower courts placed on the law, the justices did what no one expected them to do, which was to let a law stand most legal scholars and even three of them indicated was likely to be ruled unconstitutional.
They made a similar unprecedented ruling in regard to the Alabama redistricting map drawn by Republican legislators that packed black voters into a single congressional district rather two as the numbers indicated they should have. The Appeals Court ruled the new map violated the 1965 Voting Rights Act.
The Court’s overruling of the Appeals Court immediately brought to mind the 1854 Dred Scott decision when the Supreme Court ruled that the 5th Amendment protected the right of whites to own slaves.
Even Chief Justice Roberts criticized the conservative majority for their actions.
Harvard law professor Lawrence Tribe’s criticism went further: “This is a new low even for this lawless Court. Not even Chief Justice Roberts, author of the infamous Shelby County decision, could bring himself to join the radical right majority in draining the Voting Rights Act of all meaning and leaving it a hollow shell.”
Exacerbating what the conservative justices did was the fact that both decisions were arbitrary because they were unnecessary. In fact, they seemed to have gone out of their way to contradict the normal process followed by the Court.
The question, then, is why. Why did they do what they did?
Sadly, even tragically for the country, the most logical answer is raw politics, as raw as it gets.
They thumbed their noses at judicial precedent, judicial restraint, and the Constitution, sending the unambiguous message that the Court’s conservative majority is quite willing to impose its political will on the nation.
It is no secret, for example, that all the conservative justices oppose Roe v. Wade and found a way to limit its effectiveness. Now we know that five out of the six have no qualms about using their power to support Republican efforts to limit the power of the black vote.
I cannot think of anything that reflects a betrayal of their oath of office more than these two decisions, tarnishing, if not destroying, the reputation of the Supreme Court at a time when the nation needs to be reassured that our democracy is strong.
Defenders of this Court who say these decisions are based on the so-called “doctrine of originalism” that guides conservatives on the Court are wrong. “Originalism,” so far as it is a real thing, is unrelated to their actions. The constitutionality of neither of these cases was being decided. Instead, the decision they faced was whether or not to prevent harm before they were ultimately adjudicated.
In both instances the conservatives justices chose harm over caution.
So here we are as a nation with the conservative majority of the highest court in the land openly declaring that when given the opportunity they will not hesitate to re-write the nations laws to suit their political views.
If there was ever a moment when our democracy in jeopardy, this is it.
That it has come at the hands of the Supreme Court is something I didn’t believe was possible – until the Court itself prove me wrong.
linnposts.com 