As The Judicial System Veers to the Right

Associate Supreme Court Justice Ruth Bader Ginsberg is 85 years old. She recently fell in her office, cracking a rib. A powerhouse of a justice, appointed in 1993 by President Bill Clinton, Ginsberg has been a liberal force in an increasingly conservative court. Her determination to hang on is beyond incredible, a motivation and determination that seems to be model for all of us, right, left and center.

But her age and her injury combined with a rather GOP clear win in the United States Senate, the body that confirms presidential judicial appointments, suggest that even the 5-4 tilt of the Court to the right is far from over. A minority party, bolstered by voting restrictions aimed at favoring traditional white mainstream incumbents, is set to maintain a rural value system on a nation that has long since become a predominantly urban nation for decades to come. Hang on Ruth! Your country needs you.

Notwithstanding the remaining vestiges of moderate and liberal federal judges – each with a life time appointment – who try and hold the government to its statutory obligations and past promises within constitutional limits, Trump executive branch appointees are  effectively trying to reverse immigration policies without Congressional approval, alter our statutory asylum laws and reneg on our promises to DACA children. They are trying to force repayment on federally-backed student loans from failed for-profit post-secondary schools that the feds themselves shut down.

Consumer, environmental protections and expanding healthcare, despite exceptionally wide bipartisan grassroots support, are being cut to the bone or simply eliminated. Only judicial action has limited the intended damage, and those judges are in Donald Trump’s angry cross-hairs. Since Republican politicians who separated themselves from Trump in the mid-term election, for the most part, were voted out, Trump is the Republican Party. Any GOP candidate to the contrary faces Trump-wrath and a strong likelihood of committing political suicide. The GOP is now threatening Medicare, Medicaid and Society Security for cuts to fund the massive tax cut for the rich they passed earlier this year: the “it will pay for itself” legislation that is generating hundreds of billions of deficit dollars in this year alone!

We watched as the conservative Supreme Court, in Shelby County vs Holder (2013), gutted the Voting Rights Act oversight of designated states with a history of voting rights restrictions that penalized minorities, resulting in an almost immediate reinstatement of precisely those restrictions. Several states had already passed that those restrictive statutes that would come into effect the instant any such voting practices oversight were lifted. Most of the other states that had been subjected to such federal scrutiny followed suit. Cases against those discriminatory practices were filed immediately, with mixed results (wending their way up to the Supreme Court), and some discriminatory voting restrictions were passed at the 11^th hour making judicial review difficult if not impossible.

But with two rather clearly right wing candidates, apparently ready to carry partisanship to the Supreme Court as their mandate, appointed by Trump to the highest court in the land – affirmed by a hair by the GOP-controlled Senate –  and notwithstanding popular sentiment to the contrary, we can expect a strong push to the discriminatory practices faced half a century or more ago, gun legislation to continue to shift toward NRA interpretations, and Christian evangelical values to seep into government with full judicial support. The Supreme Court is considering whether a cross can be a government-supported landmark, and there are cases pending in the lower courts, challenging new legislation that has added increasing layers of restrictions on abortions, that are clearly aimed at reopening Roe vs Wade.

University of Alabama law professor, Ronald J. Krotoszynski Jr. looks at the nascent effort of states to approve “if Roe vs Wade is reversed” automatic policies to stop abortions in their respective states (from the Op-Ed pages of the November 9^th Los Angeles Times). Nothing presents that reality like Amendment 2 (to the Alabama State Constitution) passed by 59% of Alabama voters on November 6^th making it clear that Alabama would definitely reinstate its former ban on abortions should the Court so rule:

“It would be easy to dismiss Amendment 2 as an empty political gambit aimed at increasing Republican voter turnout, but that would be a mistake. Instead, it represents clear and troubling evidence of what a post-Roe vs. Wade world would look like — and the U.S. Supreme Court should take note now.

“On its own, Amendment 2 does not have much immediate legal effect. It makes it Alabama’s public policy ‘to ensure the protection of the rights of the unborn child’ and ‘to recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life.’ Existing Alabama state law already says as much, but two U.S. Supreme Court rulings prevent the Legislature from completely banning abortion: Roe vs. Wade (establishing the privacy right to choose an abortion) and Planned Parenthood vs. Casey (stating that state regulations can’t place a substantial obstacle in the path of women seeking an abortion).

“Amendment 2, however, has a potent political effect: It gives Alabama’s GOP-controlled Legislature an electoral and constitutional mandate to enact a ‘fetal personhood’ statute. That is, to pass a law stating that life begins at conception — and to do so as soon as possible if and when the Supreme Court overturns Roe. A fetal personhood statute would create a veritable hornet’s nest of intractable legal issues revolving around two people sharing a common body (the woman’s).

“The politics of antiabortion legislation are already irresistible to Republican legislators in many conservative states, not just Alabama, because they are wildly popular with base voters but also don’t tax state budgets. If Roe were overturned and abortion policy returned to the states under their traditional power to regulate public health, safety, welfare and morals, it is virtually certain that fetal personhood statutes would be adopted in many states…

“Even if Amendment 2 does not alter today’s legal landscape, it make plain how states are already positioning themselves to respond immediately if Roe is overturned. The liberty of women who find themselves pregnant could be significantly curtailed — if not denied completely — in the interest of protecting a gestating fetus. States that are particularly hostile to women’s reproductive rights will certainly enact and enforce laws that permit women to be imprisoned for nine months because they might pose a threat to their ‘unborn child.’…

“Fetal personhood statutes, and their attempt to create legal recognition of two people inhabiting the same body, will enmesh the federal courts in questions they are in no better position to answer now than they were 45 years ago. As Justice Harry Blackmun sagely wrote in his 1973 Roe decision, ‘When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.’”

Women could be prosecuted. Even cases where there might be dangerous complications of a continued pregnancy. Fetuses suffering from dangerous medical risks or permanent disabilities would be guaranteed birth and probably a lifetime of rejection and misery. But most of all, women would lose control of their bodies to the older white men passing these laws.

The big picture here is simply that regressing into problems that were solved a long time ago, imposing minority white traditional views based on rural and deeply held minority values on a nation that is 85% urban just doesn’t work. Our founding fathers feared and looked down on cities and towns and through the “New Jersey Compromise” created a legislative system where farms states could not be outvoted by densely populated states with large cities. Right-wing Wyoming – with fewer than 600,000 people – has precisely the same number of U.S. Senators – two – as does California with 38 million residents.

Between gerrymandering and the New Jersey Compromise, Democrats cast 12 million votes more than did the GOP in the 2018 mid-terms (Quora.com, November 8^th) and yet lost the Senate and only edged their way into a House majority. Representative democracy? Obviously not. And remember, it is the rural-biased Senate that confirms federal judicial appointments. Disenfranchising non-white Christian-leaning voters to favor a decreasing minority of white traditionalists might seem like a good idea, but when governments do not work for most… they end. The level of income inequality combined with severe political polarization in this country augur very badly for its future.

I’m Peter Dekom, and those who think that they have trounced the chorus of a growing urban majority that really defines the United States of the future… and actually the present… might be in for an ugly and possible violent surprise.