By Larry J. Schweiger
Pittsburgh Current Columnist
The U. S. Supreme Court (SCOTUS) has taken on enormous and disturbing super-legislative powers undercutting voter rights, crushing labor protections, and undermining much needed environmental safeguards. Soon they will decide our health care. In the face of a climate crisis and our failing democracy, shifting legislative functions to an unelected, unaccountable body is a perilous step.
During the sham confirmation hearing, Senator Kamala Harris asked Judge Barrett, the daughter of a Shell Oil attorney, “Do you believe that climate change is happening and threatening the air we breathe and the water that we drink?” Barrett responded, “You asked me uncontroversial questions, like Covid-19 being infectious or if smoking causes cancer to solicit an opinion from me on a very contentious matter of public debate, I will not do that, I will not express a view on a matter of public policy, especially one that is politically controversial.” Judge Barrett stonewalled and refused to answer even basic questions knowing that she already has the Republican votes locked down.
Stacking the Federal courts and the SCOTUS with ideological “corporatist” justices screened by the dark-money-funded Federalists Society profoundly impacts our government’s functioning. Six of the Supreme Court’s members are current or former members of the extreme right-wing Federalist Society. They include Chief Justice John Roberts, Amy Coney Barrett, Brett Kavanaugh, Neil Gorsuch, Clarence Thomas, and Samuel Alito. In 1982, the Federalist Society for Law and Public Policy Studies was established to create a reactionary counterrevolution in the Court system. Dark money funders and other special interests underpinning the Federalist Society now have the Court they conspired to make many years ago.
Senators Debbie Stabenow, Chuck Schumer, and Sheldon Whitehouse detailed how our court system has been taken over by Trump, Mitch McConnell, and the GOP. A May 2020 report entitled: “Captured Courts-The GOP’s Big Money Assault on The Constitution, Our Independent Judiciary, And the Rule of Law,” shows how special interests working through the Federalist Society plotted to use the Supreme Court as an unelected arm of our government to advance unpopular partisan outcomes by legislating from the bench. “During John Roberts’s tenure as Chief Justice, the Court’s five-justice Republican-appointed majority has handed down more than 80 partisan 5-4 decisions—joined by no Democratic appointee—that delivered wins to the Republican Party and the big corporate interests behind it.”
The Captured Courts report makes it clear “(f)or McConnell-led Senate Republicans, confirming Trump judges has become the primary purpose of the Senate. The Democratic majority in the House has passed over 350 bills that have yet to even be considered by the Senate. Nearly 90% of these bills received bipartisan support and provide solutions that the voting public overwhelmingly approves of, such as lowering health care costs, combating the climate crisis, and reducing corruption in politics. Instead of passing legislation to help the American people, Mitch McConnell has chosen to bury those bills in his legislative graveyard.” At the same time, we have witnessed several profound court decisions that would never pass in Congress.
The U.S. Supreme Court has created the golden age of money in American politics. In an incredulous stretch of the Constitution in the case of Citizens United v. Federal Election Commission, the U.S. Supreme Court decided to gut the McCain-Feingold Act. With a constitutionally flawed theory, “money” equals “free speech” under the 1st Amendment, the Court also declared in the January 2010 decision that “corporations” have “personhood” under the Constitution. This profoundly flawed ruling gave corporations broad and dangerous status that influences elections unduly. This decision and the subsequent SCOTUS decisions allow individuals to invest unlimited and undisclosed amounts of money to influence elections, severely undercutting American democracy.
In Shelby County v. Holder, the SCOTUS arbitrarily declared the end of racism in America, justifying the gutting of the 1965 Voting Rights Act’s critical provisions. Since that decision, blatant voter suppression has occurred in numerous states aimed at people of color, students, the elderly, and people with disabilities to distort the outcome of elections in favor of the GOP. Suppression efforts include harsh voter ID laws, mass purges of voter rolls, cuts to voting hours and locations, and systemic voter disenfranchisement and intimidation. The weaponization of voter suppression certainly contributed to the decline of black voters in 2016. According to a Pew Research study, black voter turnout declined for the first time in 20 years in a presidential election, falling to 59.6% in 2016 after reaching a record-high 66.6% in 2012. Systematic racism in voter restrictions belies the Court’s perverse decision.
In the District of Columbia v. Heller case, the SCOTUS held on a partisan 5–4 decision ignoring the constitutional language in the Second Amendment connecting gun ownership to state militias and guaranteed the right to possess firearms independent of governmental service for hunting and other purposes, including self-defense within the home. The Heller decision makes it harder for governments hard hit by crimes and school shootings to regulate the spread of military-style weapons to those who should not possess them.
With a 6-3 makeup, the Supreme Court will hear arguments on the Affordable Care Act one week after the November 3rd presidential election. This landmark case will determine the fate of the Obama-era law. The timing of the argument was purely political to avoid tramping on Trump’s reelection. With six Supreme Court members with Federalist Society ties, the future of the ACA is clearly on the line.
A noted British historian Lord Thomas Macaulay in 1857 issued a warning to America about the survival of our Republic. “Your Constitution is all sail, and no anchor. As I said before, when a society has entered on this downward progress, either civilization or liberty must perish. Either some Caesar or Napoleon will seize the reins of government with a strong hand; or your Republic will be as fearfully plundered, and laid waste by barbarians in the twentieth century as the Roman Empire was in the fifth; with this difference, that the Huns, and Vandals, who ravaged the Roman Empire, came from without, and that your Huns and Vandals In recent years, will have been engendered within your country by your own institutions.”
Institutional vandals are now threatening our democracy. They controlled the makeup of the Senate and the Supreme Court. They have driven Trump’s many court appointments. The Republican-appointed majority in SCOTUS will continue issuing landmark rulings securing an anti-majoritarian hold on power at state and federal levels through adverse decisions involving political money, gerrymandering, voter rights, and other election matters. They will determine the outcome of health care and climate change.
Lord Macaulay’s warning is proving to be prescient as recent Supreme Court interpretations of our Constitution prove to be “all sail, and no anchor” as there are few restraints today. Trump is our Caesar, and the Courts and the Federalist Society are becoming the Huns and Vandals. For years, Republicans claimed they wanted to end liberal justices “legislating from the bench.” Still, they remain silent when the conservative Supreme Court has acted as a super-legislative body unleashing a massive and destabilizing flood of toxic money, gutting the Voting Rights Act and now looking to end The Affordable Care Act.
People who care for the viability of the biosphere and desire a viable democracy need to understand the Court’s role in several bad decisions that tilt toward moneyed interests while thwarting progress on several critical fronts including climate change. If our democracy is corrupted and our planet laid waste, it will be facilitated by the Supreme Court and the greedy people who pumped dark money into the Federalist Society. They are the twenty-first-century barbarians who are actively rigging the system.
In a recent interview with Politico, Senator Whitehouse reflected on the state of our court system: “What the Republicans have done to the reputation and integrity of the Court through these last three nominations leaves a tarnish on the Court that I don’t think the Court can bear. That means it’s going to be on us to figure out how to clean up that mess and restore a court that is demonstrably not the organ of big special interests.” On November 3rd, Americans will decide who they want to lead. If Biden and Harris win, they will need to figure out how to address a court system that has veered dangerously off course.