Sunday, July 1, 2018

Under the Roberts Court, Precedent Be Damned, Even Without Kennedy's Successor

In conversation the other day my sister Lee and I shared a problem afflicting both of us—we haven’t been able to sleep well since Justice Anthony Kennedy announced his retirement from the Supreme Court, leaving to Donald Trump a choice that could well tilt the court to the right for a generation. 

Not that it wasn’t already a mostly conservative ensemble, though Kennedy provided that occasional libertarian vote that sided with the four progressive judges to validate gay rights, same sex marriage and the security of the Roe v. Wade abortion decision.

Kennedy was not flaming in his support of those bedrock Democratic principles. Now that he’s retiring it is open season on his legacy. Here’s just one example of a critique of his record on gay rights: Similar dissections of his opinions on access to abortions, Citizens United, the Second Amendment, and other conservative court decisions are easy enough to find.

In the upcoming confirmation battle, Republican senators Susan Collins of Maine and Lisa Murkowski of Alaska are said to be crucial because of their past support of a woman’s right to choose. They have been quoted as saying Roe v. Wade is “settled law,” precedent that should not be voided.

Yet, no nominee will acknowledge how he or she would vote on a case to invalidate Roe v. Wade. As for it being “settled law,” we have seen already how the Roberts court has rejected precedent to chart a more regressive course. Just ask civil service union members how they feel about the protection of precedent. 

It’s important to remember that even if Roe v. Wade is overturned, abortion would be permitted in states where it is legal, such as New York. But each state could pass its own restrictions. In New York, an abortion could occur for any reason up to 24 weeks of pregnancy. Other states could have tighter deadlines, or outright ban the procedure even if a mother’s life is at risk.

Kennedy framed his more libertarian votes on the concept of personal privacy. His conservative detractors point out that the Founding Fathers and Framers of the Constitution never identified privacy as a freedom or right. A new, more conservative majority could reject Kennedy’s foundational argument, setting aside the rights and freedoms he found ensconced in the Constitution. 

The challenges might come from a direction not previously expected. Stripping civil service unions of their ability to collect dues from all workers served by their collective bargaining unit came about, for example, through a First Amendment challenge, a tactic heretofore rarely used by conservatives. 

I’m not a lawyer, so this analysis could be off-base. But I’m fairly certain it has merit. The upfront fear of a more conservative justice than Kennedy being appointed is naturally focused on the issues that have been most explosive over the last several decades, gay rights, gun rights and legalized abortion. 

There are, however, two government programs that conservatives have long sought to disembowel: Social Security and the Internal Revenue Service. (They’d also like to ax Medicare, Medicaid and Obamacare.) Again, I’m no lawyer but I am distressingly confident that conservative think tanks are poring over legal strategies to upend these programs. Don’t argue with me that the first two are near-century- and century-old programs, that the population at large would not stand for dismantling Social Security and even the IRS, if push came to shove. It’s also hard to imagine a majority of Americans favoring elimination of the healthcare programs.

But I’m not talking about the population at large. All it takes is one citizen to battle all the way to the Supreme Court where he or she could find a receptive, conservative ear, or should I say, 10 ears. 

The frustration my sister and I feel (by the way, I am not excluding my brother—just haven’t talked to him about it) is in no small measure a result of our living in California and New York, two states that lean liberal, though we are both old enough to remember legal abortion in New York passed the legislature by just one vote five decades ago. 

Rights presumed to be fundamental and guaranteed as “settled law” are susceptible. The landmark Voting Rights Act of 1965 has been gutted by the Roberts court. Restrictions on the influence of corporations on the political process have been lifted by the Robert court. 

Assume nothing is permanent. Assume no election is safe. Don’t leave it to someone else—VOTE! Not just for president, but for senate and congressional candidates, for governor and attorney general, for state senate and state representative, for mayor and city council, and especially for school board candidates.