America can accept this Supreme Court as legitimate and its rulings as the final word - or it can have true democracy and a functioning state. But not both.
I’m about halfway through this piece. So far - it NAILS it. There are points raised that I hadn’t completely considered, descriptions of actions/conditions that I had “sort of” figured out, but were laid out clearly in this piece. WELL WORTH A READ
It's another great piece that too few will read in America. The US right has always understood the mechanics of politics better and understood that the Democratic party would be slow to react, less willing to break with decorum, and less likely to form any kind of unified counter. The Rogue court should therefore be seen as part of a much larger plan to limit pluralism on the basis of race, religion and power. And Prof Zimmer has made this point many times. Gorsuch, Kavanaugh, Barrett weren't a stroke of RW luck, but part of a long game - a game the GOP plays much better than the other side. And, IMO, it is because the GOP has shed any and all attachment to the idea of 'true democracy' and even more worrisome, there are plenty of examples it doesn't care much about a 'functioning state' either. Not bound by the constraints of morality, ideology or even objective reality, it has a Machiavellian advantage over the other side - that is, until such time that those who believe in a true free democracy see the very real threat such an entity poses. Precious little has emerged that tells me democratic forces are on the rise. As a person who has one foot in Europe and one in North America, the ripples are far reaching and I fear if America goes, so go the rest of us.
On a few sub-points, I think the details of the decisions bolster your conclusions further. For example, in Voting Rights Act case, the Court came to the right result, but only after allowing the illegal maps to be used in more than one state in 2022 - which is very significant in a closely divided House. And then they get credit in the media for saving the Voting Rights Act - even though they were just belatedly sticking to precedent. Similarly (as many have written), while Moore v Harper was certainly a big win for voters compare to what could have happened, the Supreme Court still left the seeds for future federal court intervention, particularly Supreme Court intervention, if the state courts deviate from what the Supreme Court decides are the bounds of permissible interpretation.
I’m hoping to write about why the Democratic response has been so utterly inadequate next - that’s still not going to include all the solutions, but hopefully helpful in terms of thinking about what’s keeping Democrats from accepting this challenge.
Thanks in advance; I'm looking forward to reading that piece. Helpful, as you say - yet I fear any real solution must come from elsewhere than the Democrats. I say "fear" because, well, I do fear that once it becomes undeniably obvious that the system (very much including the Democratic Party) lacks the stomach or the capacity to reform itself, there will be no holds barred.
Let’s remember how all of this happened. Money - lot’s of it. This is NOT a mystery. #SenatorWhitehouse has been pontificating about it for years. Yet, he has done NOTHING.
THE “Court” is the best conservative money could buy. Congress is also the best conservative money can buy - read, it’s dysfunctional except for cutting taxes.
NOTHING will change until we get all of this private money OUT of the system. The Court will not change. Congress will not change nor will the 365, 7-day, 24-h “rage machine” will not change.
Minority rule is killing our country. Things need to change. PUBLICLY FUND ALL CAMPAIGNS. It’s the only way. Yet those that can make this change continue to refuse because THEY ALL BENEFIT F I N A C I A L L Y from it.
The point you make regarding “moderate” decisions being used to overshadow the anti-democratic opinions at the end of the Court’s session is so disheartening to witness. Most people I’ve interacted with who are not frequently online or particularly interactive with the news are completely unaware of the decision in the 303 Creative case- deeply disturbing given that it is more or less guaranteed to open the door to anti-queer discrimination protected under federal law.
Excellent, and when I tried to explain to someone why the history of the court doesn't matter so much as the present decisions that have grievously wounded innocent Americans and shown the deep roots of bigotry and misogyny among the 6 conservatives, I was told I needed to learn the court's history before having an opinion. I don't have to study legal history to recognize bias when I see it. Thank you for writing this.
Justice Thomas uses an absurd form of originalism to determine constitutionality. He says he will find a law unconstitutional if there were no analogous laws from the 1780s, when the constitution was written. Take gun restrictions, for instance. Since guns in the 1780s did not have much stopping power, there was no need to regulate them. Instead you needed a lot of men, each with a gun, to quickly band together to defend their community, state or country, so there was very little gun regulation in the 1780s. There were also few laws on pollution, workplace safety, consumer product safety, or just about any other facet of modern life. Using this same logic Thomas could wipe out almost any law or regulation he does not like. Just imagine what he could do to women’s rights.
During the 1780s women had no rights. No female pronoun is used anywhere in our constitution. A man could threaten, beat and rape his wife knowing his pastor and the political leadership of his community would agree that he had the absolute right to do so. Therefore, Thomas could use the same logic he uses to eliminate gun controls to strike down laws creating women’s rights today. There are no examples analogous to them from the 1780s. Women have many rights enshrined in federal law, but the Equal Rights Amendment has never been passed, so any constitutional rights for women, according to Justice Thomas, are merely figments of our imagination. "The general good" be damned.
The constitution, it seems, is a sacred text that must be followed to the letter, not unlike extreme religious sects that call their female adherents 'handmaids'. Oh, but there already is a handmaid on the court. No problem then. She'll go along for sure. Women's lives are threatened, and our democracy is threatened, by this reactionary court.
I would add just 1 item to your fine essay: it's time for Democratic leadership (especially Biden) to make the clear case to the country about the danger of rule by unelected far-right justices who hide their bigotry and intolerance behind robes.
Biden cannot continue to defend institutions that are harming not only the base of the Democratic party, but the poor, the young, minorities, women, LGBTQ, and soon the elderly as the GOP chomps at the bit to eradicate Social Security, Medicare, and Medicaid.
Democratic leadership must lead vs react, shout over the bad-faith right-wing propaganda, or "reasonable voices" assuring us that it's just sensible to suffer in silence.
I hope in your comments that you analyze Biden's concerns about expanding the court to 13 members. It is the only constitutional way to reverse Republican court packing. To do so he needs a Democratic senate majority of 60, or Senate rule change to eliminate filibusters for SCOTUS related legislation and appointments. Biden said he did not want to politicalize the court. He needs to realize that the court has been politicalized and his job is to reverse that, along with the corrupt rulings of the bought and paid for Supreme Court.
Jul 2, 2023·edited Jul 2, 2023Liked by Thomas Zimmer
When there was earlier talk about expanding the Court, I was dubious, because it would look so much like a political power grab. I no longer feel that way. The Court's unprecedented power grab has to be countered, and I think expanding the Court is the only way to do it. The Republicans' heads will explode, of course, and I don't even want to think about what Fox will tell its viewers, but the decisions of 2023 and 2022 will go a long way towards persuading the rest of the country.
Absolutely fantastic. Thank you for always reminding me I’m not crazy, just being gas lighted by the mainstream media, and the moderates in my own party, the democrats.
We desperately need a new generation of young democrats who better represent where our country needs to go, and have the willingness to get us there.
I’m about halfway through this piece. So far - it NAILS it. There are points raised that I hadn’t completely considered, descriptions of actions/conditions that I had “sort of” figured out, but were laid out clearly in this piece. WELL WORTH A READ
It's another great piece that too few will read in America. The US right has always understood the mechanics of politics better and understood that the Democratic party would be slow to react, less willing to break with decorum, and less likely to form any kind of unified counter. The Rogue court should therefore be seen as part of a much larger plan to limit pluralism on the basis of race, religion and power. And Prof Zimmer has made this point many times. Gorsuch, Kavanaugh, Barrett weren't a stroke of RW luck, but part of a long game - a game the GOP plays much better than the other side. And, IMO, it is because the GOP has shed any and all attachment to the idea of 'true democracy' and even more worrisome, there are plenty of examples it doesn't care much about a 'functioning state' either. Not bound by the constraints of morality, ideology or even objective reality, it has a Machiavellian advantage over the other side - that is, until such time that those who believe in a true free democracy see the very real threat such an entity poses. Precious little has emerged that tells me democratic forces are on the rise. As a person who has one foot in Europe and one in North America, the ripples are far reaching and I fear if America goes, so go the rest of us.
I think the Brennan Center’s policy solution would go a long way to correcting the distortion of the Supreme Court under Republicans and Democrats’ unwillingness to address the issue in a serious way: https://www.brennancenter.org/our-work/policy-solutions/supreme-court-term-limits
On a few sub-points, I think the details of the decisions bolster your conclusions further. For example, in Voting Rights Act case, the Court came to the right result, but only after allowing the illegal maps to be used in more than one state in 2022 - which is very significant in a closely divided House. And then they get credit in the media for saving the Voting Rights Act - even though they were just belatedly sticking to precedent. Similarly (as many have written), while Moore v Harper was certainly a big win for voters compare to what could have happened, the Supreme Court still left the seeds for future federal court intervention, particularly Supreme Court intervention, if the state courts deviate from what the Supreme Court decides are the bounds of permissible interpretation.
Wow, that's quite a punchline at the end. And absolutely correct. So now what? (Please consider writing a piece addressing that question.)
I’m hoping to write about why the Democratic response has been so utterly inadequate next - that’s still not going to include all the solutions, but hopefully helpful in terms of thinking about what’s keeping Democrats from accepting this challenge.
Thanks in advance; I'm looking forward to reading that piece. Helpful, as you say - yet I fear any real solution must come from elsewhere than the Democrats. I say "fear" because, well, I do fear that once it becomes undeniably obvious that the system (very much including the Democratic Party) lacks the stomach or the capacity to reform itself, there will be no holds barred.
Let’s remember how all of this happened. Money - lot’s of it. This is NOT a mystery. #SenatorWhitehouse has been pontificating about it for years. Yet, he has done NOTHING.
THE “Court” is the best conservative money could buy. Congress is also the best conservative money can buy - read, it’s dysfunctional except for cutting taxes.
NOTHING will change until we get all of this private money OUT of the system. The Court will not change. Congress will not change nor will the 365, 7-day, 24-h “rage machine” will not change.
Minority rule is killing our country. Things need to change. PUBLICLY FUND ALL CAMPAIGNS. It’s the only way. Yet those that can make this change continue to refuse because THEY ALL BENEFIT F I N A C I A L L Y from it.
The point you make regarding “moderate” decisions being used to overshadow the anti-democratic opinions at the end of the Court’s session is so disheartening to witness. Most people I’ve interacted with who are not frequently online or particularly interactive with the news are completely unaware of the decision in the 303 Creative case- deeply disturbing given that it is more or less guaranteed to open the door to anti-queer discrimination protected under federal law.
Excellent, and when I tried to explain to someone why the history of the court doesn't matter so much as the present decisions that have grievously wounded innocent Americans and shown the deep roots of bigotry and misogyny among the 6 conservatives, I was told I needed to learn the court's history before having an opinion. I don't have to study legal history to recognize bias when I see it. Thank you for writing this.
Justice Thomas uses an absurd form of originalism to determine constitutionality. He says he will find a law unconstitutional if there were no analogous laws from the 1780s, when the constitution was written. Take gun restrictions, for instance. Since guns in the 1780s did not have much stopping power, there was no need to regulate them. Instead you needed a lot of men, each with a gun, to quickly band together to defend their community, state or country, so there was very little gun regulation in the 1780s. There were also few laws on pollution, workplace safety, consumer product safety, or just about any other facet of modern life. Using this same logic Thomas could wipe out almost any law or regulation he does not like. Just imagine what he could do to women’s rights.
During the 1780s women had no rights. No female pronoun is used anywhere in our constitution. A man could threaten, beat and rape his wife knowing his pastor and the political leadership of his community would agree that he had the absolute right to do so. Therefore, Thomas could use the same logic he uses to eliminate gun controls to strike down laws creating women’s rights today. There are no examples analogous to them from the 1780s. Women have many rights enshrined in federal law, but the Equal Rights Amendment has never been passed, so any constitutional rights for women, according to Justice Thomas, are merely figments of our imagination. "The general good" be damned.
The constitution, it seems, is a sacred text that must be followed to the letter, not unlike extreme religious sects that call their female adherents 'handmaids'. Oh, but there already is a handmaid on the court. No problem then. She'll go along for sure. Women's lives are threatened, and our democracy is threatened, by this reactionary court.
I would add just 1 item to your fine essay: it's time for Democratic leadership (especially Biden) to make the clear case to the country about the danger of rule by unelected far-right justices who hide their bigotry and intolerance behind robes.
Biden cannot continue to defend institutions that are harming not only the base of the Democratic party, but the poor, the young, minorities, women, LGBTQ, and soon the elderly as the GOP chomps at the bit to eradicate Social Security, Medicare, and Medicaid.
Democratic leadership must lead vs react, shout over the bad-faith right-wing propaganda, or "reasonable voices" assuring us that it's just sensible to suffer in silence.
I’m planning on writing about the Democratic response and why it has been so utterly inadequate in the next few days!
I hope in your comments that you analyze Biden's concerns about expanding the court to 13 members. It is the only constitutional way to reverse Republican court packing. To do so he needs a Democratic senate majority of 60, or Senate rule change to eliminate filibusters for SCOTUS related legislation and appointments. Biden said he did not want to politicalize the court. He needs to realize that the court has been politicalized and his job is to reverse that, along with the corrupt rulings of the bought and paid for Supreme Court.
Excellent, thank you.
When there was earlier talk about expanding the Court, I was dubious, because it would look so much like a political power grab. I no longer feel that way. The Court's unprecedented power grab has to be countered, and I think expanding the Court is the only way to do it. The Republicans' heads will explode, of course, and I don't even want to think about what Fox will tell its viewers, but the decisions of 2023 and 2022 will go a long way towards persuading the rest of the country.
Absolutely fantastic. Thank you for always reminding me I’m not crazy, just being gas lighted by the mainstream media, and the moderates in my own party, the democrats.
We desperately need a new generation of young democrats who better represent where our country needs to go, and have the willingness to get us there.