Sunday, June 23, 2019

My Supreme Court Nightmare

I had a nightmare last night. Not while sleeping. I had woken up as I often do in the middle of the night. I picked up my iPhone to view the most popular stories on The New York Times website. 

I read several articles before opening an analysis by Nicholas Bagley, a University of Michigan Law School professor ( If he is correct, the country I have inhabited for more than 70 years might radically change. 

In that newly formulated country programs such as Social Security, the Food and Drug Administration and Medicare would be invalidated because their rules and regulations were not voted on by Congress. Rather, they were formed by administrators never elected by the people. 

This topsy-turvy approach to government could come about if a conservative majority on the Supreme Court reasons that rules regulating these programs violated the Constitution because administrators and not Congress authorized them. 

For decades it has been the conservative dream to exterminate New Deal and subsequent liberal safeguard and safety net programs, beginning with Social Security. Politicians might consider Social Security to be the third rail of politics, to be touched at the risk of losing election or reelection, but the justices on our highest court sit for life. They need not worry about tenure. 

The nightmare I am describing has already started to form. Long-held legal precedents have been overturned. Though they might have sworn allegiance to “stare decisis” during their confirmation hearings, justices may conclude that verdicts by earlier Supreme Courts were flawed, thus releasing them from their vows of upholding precedent. 

It can be only a matter of court terms before Roe v. Wade and other key liberal beliefs are put asunder by the currently constituted court. The result will be government by the powerful, increasingly represented by special interests and Big Business, with little or no congressional or federal oversight. 

This nightmare is a legacy of those Americans who so reviled Hillary Clinton that they voted for Donald Trump or Jill Stein of the Green Party. Or didn’t vote at all. Elections, we are seeing, have consequences. 

My nightmare kept me awake for an hour. There were no imaginary monsters to dismiss from memory. There were real life demons—Trump, McConnell, Thomas, Gorsuch, Alito, Roberts, Kavanaugh.