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 (https://nyti.ms/2Y7UsXg). 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. 

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: https://nyti.ms/2lEgP4J. 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.   

Observations on the Political Circus

I’m not interested in hearing any more about Donald Trump’s sex drive during Wednesday night’s presidential debate. I don’t need to hear him deny the allegations of some dozen women or dismiss his X-rated talk on the bus with Billy Bush as mere “locker room” banter.

I’m more interested in having moderator Chris Wallace of Fox News press Trump for details and hard evidence as to why he repeatedly is suggesting the election is rigged and that voter fraud will occur, especially in light of a study by Loyola University law professor Justin Levitt that only 31 of more than 1 billion votes from 2000 to 2014 were fraudulent. 

Trump’s claims sow doubt into our democratic process, while his call for supporters to monitor polling places in “certain areas,” such as Philadelphia, is a not too subtle reference to minority districts, as well as an inference of voter intimidation. 

Since many states allow “open carry” of firearms (at least until December 3 when a new restriction by the Bureau of Alcohol, Firearms, Tobacco and Explosives goes into effect), are we going to see armed men and women patrolling areas outside polling stations? You might recall that in 2008 Black Panthers carrying billy clubs were arrested for allegedly intimidating white voters in Philadelphia.

Trump is arguing that the media is conspiring with Hillary Clinton to win her the election. Instead of focusing on her email leaks, the media is preoccupied with his alleged sexual assaults, he says. 

One would think Trump would be eager to seize an opportunity to communicate directly to some 38 million members of AARP, the lobbying group for those 50 years and older, a cohort that is among the most active voters in any election. 

Yet, Trump largely ignored AARP’s request for responses to 13 questions it would print in the association’s October membership newspaper. It hoped for a face-to-face interview, a request Clinton honored. 

Trump, however, did not meet face-to-face with AARP and responded in writing to just six of the questions. In its October election coverage issue, AARP, in an attempt to be impartial, had to resort to printing information from his website, recent speeches and a response to AARP in June on Social Security. 

Clearly, Trump did not take AARP’s opportunity seriously as his written answers were short and perfunctory compared to Clinton’s more detailed responses and the material AARP culled from his printed material. 

Who’s the Lucky One? It is accepted wisdom that Clinton is lucky she is running against Trump. The corollary also is true: Trump is lucky to be running against Clinton. Such is the state of our flawed choices (let’s not even get started on the trouble with Gary Johnson of the Libertarian Party and the Green Party’s Jill Stein).  

That said, it is amazing that after more than a year and a half of campaigning there remain some undecided voters. I was surprised to hear on NPR Tuesday an undecided voter wanting to know what type of justice Clinton would nominate to the Supreme Court. Did he not listen to her answer during the second debate? 

“I want to appoint Supreme Court justices who understand the way the world really works, who have real-life experience, who have not just been in a big law firm and maybe clerked for a judge and then gotten on the bench, but maybe they tried more cases,” Clinton said. 

She wants justices who would preserve Roe v. Wade, would reverse the Citizens United decision on campaign financing, would safeguard voting rights and marriage equality. 

Whether she will get her choices through a Republican-controlled Senate is highly unlikely given comments by Senators John McCain of Arizona and Mike Lee of Utah. They said they would block any of her nominees.

Apparently they are willing to gamble the health and welfare of the Supreme Court against the health of aging liberal justices Ruth Bader Ginsburg and Stephen Breyer. If they should leave the bench and not be replaced, conservative-leaning justices might become the majority (assuming none of them also exit).

Thus, just as Trump has challenged the legitimacy, first of President Barack Obama and, second, of the electoral process of his successor, Republican senators are readying an assault on the Supreme Court and the duties of the Senate to advise and consent presidential nominations. 

The simple solution to this potential attack is to elect a Democratic majority in the Senate.

Speaking of threats to our democracy, anyone who has listened to the rhetoric of the election campaign cannot help but be worried about the future of our republic.

A corollary: Anyone who has not paid attention to the election should give us pause about the future of our democracy. 

A Party Platform Worth Considering

Here’s a party platform I could support, with some tweaks:

• Reject additional tax cuts for those making more than $250,000 a year, but expand breaks for low- and middle-income workers through tax credits for children, the earned-income tax credit or a new wage subsidy using tax dollars to bring low wages toward the local median level.

• Promote the benefits of global trade agreements, but help displaced workers.

• Rule out fully privatizing Social Security and Medicare, and reassure workers they will be exempt from cost-cutting.

• Acknowledge that universal health care is here to stay, but push for market-oriented changes.

• Disavow mass deportations and promote the economic benefits of legalizing longtime workers who are in the country illegally, but reduce the legal entry of less-skilled immigrants.

It might surprise you that these platform planks are part of the “Reformocon” movement of disenchanted conservative Republicans, as described in a New York Times article Friday (http://nyti.ms/2an1YbR)

It’s a long-shot that any of these more sober thoughts will become anything more than heresy to Grand Old Party poobahs (second time in a week I’ve used that mildly deprecating description of Republican leaders, but who cares, it fits). Yet it is revealing that some within the party are even thinking it is common sense to make the GOP appeal more universal.

Democrats should welcome such an overture. Perhaps the country would be able to return to what truly were “good old days” when politicians reached across the aisle to forge legislation that benefitted all, not just the rich and entitled. Back in those “good old days” the Second Amendment didn’t mean a gun, especially not an assault rifle, in every home. Nor did it mean taxes couldn’t be raised to fund infrastructure projects and other needs. Nor did it mean Roe v. Wade was the litmus test for Supreme Court appointees. Nor did it mean a presidential candidate could suggest not complying with NATO treaty defense obligations, or suggest Russia spy on an opponent, or suggest the military engage in torture. 

Yes, those were good old days. Trumpsters, however, will not go down easily in defeat. Donald Trump is seeding thoughts of a rigged election, oblivious to the facts that voter fraud has been found to be almost non existent. Federal appeals courts have repeatedly invalidated tighter voter identification laws enacted by states based on the alleged premise that voter fraud has been rampant. 

Elections at the state level are a supervised by appointees of each governor. There are 31 Republican governors, 19 Democrats. In the 11 so-called battleground states that may decide the presidential election, Democrats are governor in just four: Colorado, New Hampshire, Pennsylvania and Virginia. Their states account for 51 Electoral College votes. Republicans are governors in Florida, Iowa, Michigan, Nevada, North Carolina, Ohio and Wisconsin. Those states have 100 Electoral College votes. 

For Trump to claim the election is rigged, his own party’s election machinery would have to be conspiring against him. If only that were so …

A Deeper Meaning to Roe v. Wade

Forty years ago today, with the 7-2 Roe v. Wade Supreme Court decision, the right to obtain an abortion became part of the universal law of the land. That right has been degraded in many parts of the country. It is imperative that men unite with women to insure their ability to choose to obtain an abortion, free of hassle.

For many, the abortion issue is bound up in theology. I am beholden to my friend Ken for turning me on to the Jewdayo web site for this analysis of a deeper import of the Roe v. Wade ruling. 

"Roe is about so much more than delineating trimester by trimester rights for women, or determining when life begins or when there is viability of the fetus,” wrote Rabbi Robert N. Levine of New York's Rodeph Sholom congregation. “To my mind, Roe v. Wade . . . takes on the question of whether the government, law enforcement, male-dominated institutions have the power to control basic decisions about women's lives. Those who yearn to repeal Roe v. Wade really want to correct the 'illusion' that women can make decisions about their own bodies and lives."

"The fundamentalist right tries to tell us that Scripture explicitly sides against choice. They are wrong! Listen carefully: There is not a single verse, not a single verse in any Bible outlawing abortion," says Rabbi Levine.