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.   

Godfather III and the Supreme Court

I’ve tried to stay away from writing about politics, but I increasingly feel like Michael Corleone in Godfather III: “Just when I thought I was out... they pull me back in.”

Wednesday was a great day of victory for LGBT citizens. Nay, for all citizens, at least those who cherish equality. The dual U.S. Supreme Court decisions invalidating the Defense of Marriage Act and California Proposition 8 that withheld the opportunity for same-sex marriage in that state extended the privileges and rights enjoyed by the heterosexual community.

The LGBT community had reason to cheer. Those who opposed their equality did so mainly on a religious premise, that God did not sanction gay unions, according to their reading of the Bible. But the law is supposed to be blind toward religion. In deciding the two cases, a majority of justices rightly saw the issues in legal, not religious, terms.

But in the long run, the Roberts Court proved itself far more reactionary than progressive. Its decision Tuesday to strike down a portion of the Voting Rights Act of 1965 was more far-reaching than its Wednesday rulings. It will condemn our country to years if not decades of regressive, repressive, racist legislators and the poison they will infuse into local, state and national legislation. 

Democrats as well as Republicans practice gerrymandering to secure majorities in legislatures. Section 4 of the Act protected minorities from many of the excesses sought, mostly by Republicans. By declaring that section unconstitutional, the Court opened the door to skullduggery, which began almost immediately. Texas said it would implement a previously stalled voter identification law and would alter districts without Federal review. The latter will have the immediate effect of putting Wendy Davis, the Texas state senator who filibustered against a repressive abortion bill Tuesday night, into a district with fewer Democratic voters, an action Federal review did not allow a few years ago. The voter ID law, opponents believe, will dampen turnout by minorities who generally vote Democratic.

To be sure, new laws and redistricting can be challenged in court, but the procedure is costly and time-consuming. The Court invited Congress to amend Section 4 by updating the voting data on which it was passed, on the surface an acceptable remedy. Except when one considers the inability of recent Congresses to reach consensus and the fact that the ruling will send to the House more representatives with extreme views unwilling to compromise. 

It’s common for those who disagree with the reactionary rulings by the Court to blame Justices Roberts, Scalia, Alito and Thomas (Kennedy, too, when he hangs around the evil foursome). But let’s not blame them. Let’s put the blame where it truly belongs—on the American people for voting into office Reagan, Bush 1 and Bush 2. Reagan appointed Scalia and Kennedy, Bush 1 appointed Thomas, Bush 2 appointed Roberts and Alito. 

Anyone who doesn’t realize that the choice of a president sets in motion the opportunity to impact our way of life for decades to come doesn’t comprehend the role the Supreme Court plays in our society. Tuesday and Wednesday’s rulings have, to paraphrase Michael Corleone, pulled us back into reality.  

No Longer Ignorant or Blissful

We’re all indebted to Thomas Gray for coining the phrase “ignorance is bliss” in his Ode on a Distant Prospect of Eton College (http://www.thomasgray.org/cgi-bin/display.cgi?text=odec). Twice this week I came away feeling less than thrilled upon finding out some realities.

I celebrated my 64th birthday Wednesday (thanks, all who Facebooked me or sent notes the old-fashioned way—by email—and the even more old-fashioned way, by snail mail). For years whenever asked about my birthday I would say March 6, the day the Alamo fell. Now, however, thanks to one of those annoying “15 seconds in time” Geico radio commercials, I learned that March 6 is the day the U.S. Supreme Court issued its most infamous ruling, the Dred Scott decision, in 1857.

While Geico did perform a public service in bringing this bit of historic news to my attention, I was less than pleased to hear how the insurance company framed the decision. It took the safe explanation, merely stating the judges ruled slave owners had the right to take their slaves into Western territories, that the federal government did not have the power to regulate slavery in those areas. 

What Geico did not point out is that in the Dred Scott decision the Court held that slaves were personal property, that people of African descent, whether free or slave, were not protected by the Constitution, that they had no rights as a U.S. citizen, that they had “no rights which any white man was bound to respect.” According to Chief Justice Roger B. Taney, Dred Scott was the property of his owner, and property could not be taken from a person without due process of law (http://www.britannica.com/EBchecked/topic/171273/Dred-Scott-decision).

The 13th, 14th and 15th Amendments to the Constitution basically have voided the Dred Scott decision, but disenfranchisement of African-Americans, and other minorities, has been a tragic legacy still weighing us down as a nation. The Voting Rights Act of 1965, and its subsequent renewal, helped expand voting rights, but the current challenge by Shelby County, Ala., to Section 5 of the law raises the prospect of another ignominious decision by the Court. 

Which brings me to my second enlightened disappointment of the week. I had followed coverage of the Supreme Court arguments. I remonstrated against Justice Antonin Scalia’s bigoted views and the absurdity and hypocrisy of a conservative judge advocating judicial advocacy to do the work of Congress. No, my reversal of ignorance is of a more personal nature.

Thanks to a clip on The Colbert Report Wednesday night, I once again was embarrassed to hear my cousin, Bert Rein, argue before the Supreme Court in favor of the entitled, in favor of those who would repress the rights of the disadvantaged. While the history of this country has been the (gradual) expansion of voting rights to all citizens, my cousin, representing Shelby County, stood for the belief that “the problem for which the Voting Rights Act was addressed is solved.” 

Did Bert sleep through the last election cycle? Did he not witness attempt after attempt by Republican elected officials in state after state to restrict voting access to minorities? 

Sometimes, ignorance truly is bliss. 

Nixon's The One

It’s all over but the trite, obligatory ceremonial dropping of balloons and confetti on the Republican nominee for president of the United States, along with his wife, running mate and spouse, at the close of the GOP nominating convention in August in Tampa. It will be a perfunctory coronation of a standard bearer who by most accounts does not excite the party base except in the prospect he could defeat the incumbent because he would not scare too many Independents into believing a Romney administration would hoe so much to the right that women and minorities would find many of their rights put back in the closet while the middle class and blue collar workers put false hopes in the mantra of trickle down economics.

Two weeks ago David Brooks in The NY Times asked why Barack Obama is still competitive in the presidential race, given the problems with the economy and the resulting malaise of much of the public, his left-leaning ideological bent while the electorate slants more and more to the right, and the fact that 52% of those polled in a recent ABC News/Washington Post survey say the current level of economic inequality is acceptable (for the full article, follow this link: http://www.nytimes.com/2012/05/15/opinion/brooks-the-espn-man.html?_r=1&ref=davidbrooks).

It was an interesting take, but one that failed to properly put into perspective the failure of the GOP to seize the moment. Had Republicans put aside their ideological warfare, their divisive, anti-everything-and-anything progressive or compassionate during the primaries, they could have solidified their prospects come November. They could have selected a fiscal conservative, socially moderate candidate in the image of ... Richard Nixon.

How’s that for a shocker? I’m no Nixon fan, but his paranoia aside, Nixon did some fairly progressive acts during his presidency. Let’s ignore for the moment his foreign policy and war mongering. Did you know, for example, that during his presidency revenue sharing between the federal government and states began? He signed into law establishment of the Environmental Protection Agency, as well as the Equal Opportunity Employment Act and Title IX that provides funding for girls athletics programs in schools. 

He created the Office of Minority Business Enterprise, worked to increase the hiring of minority-owned contractors on large federal projects and favored affirmative action programs setting goals and timetables for minority hiring. Nixon signed into law the Voting Rights Act of 1970 that abolished voter literacy tests. He began the War on Cancer, banned cigarette advertising on television, increased social security benefits, established the National Business Council for Consumer Affairs. He founded the Drug Enforcement Administration. He signed the Agriculture and Consumer Protection Act of 1973, the Emergency Highway Energy Conservation Act of 1974, the Fair Labor Standards Amendment of 1974 and the Federal Energy Administration Act of 1974.

Sure, he might not have wholeheartedly championed all of these programs. But he didn’t veto them. He worked with Congress, a Democratic-controlled Congress. It’s safe to say Nixon would not be considered a true Republican by those controlling his party’s fate these days. Many have their doubts about Romney, as well.

Today’s Times brought another example of Romney-speak versus Romney-reality. According to James. E. Ryan, a professor at the University of Virginia School of Law, Romney’s education reform plan speech last week included a proposal to “give poor students and those with disabilities the right to attend any public school or charter school in their state.” Current law does not permit students to travel beyond their municipal borders (http://campaignstops.blogs.nytimes.com/2012/05/29/romneys-school-surprise/?scp=1&sq=james%20e.%20ryan&st=Search).

It’s a pretty radical idea, one that has the potential to revolutionize the distribution of education in our country. I strongly doubt, however, that Romney is being any more than demagogic in suggesting this radical idea. Are we sincerely to believe Mitt could get bedrock GOPers to support a change that would allow inner city youth to stream into their suburban communities? 

Let’s get real. This election will be about shared community versus individual greed, about tolerance versus dogma, about future opportunities versus past practices that included closed doors. For all his faults, Nixon’s accomplishments helped push our country forward.