Pendulum Politics
The Judicial Amplifier of Polarization
Most folks think that the political and economic forces we face are dramatically cyclical. But given paradigm shifts, climate change, plagues and war, that is an overly simplistic view. While there are cyclical trends, if you add those mega-shifting variables, the cycles are better understood if placed into spirals with their own shape and direction. The cycles and pendula that do occur start to make more sense with that visualization of change.
Few governing structures last more than four centuries; most disappear in far shorter periods. Since the United States is the oldest contiguous “democracy” on earth – founded on a now-antiquated system of governance created in the overwhelming agrarian later 18th century. Thus, one has to view assaults on that structure with increasing seriousness. Changes that might have been viewed as just one more normal cycle just might be terminal assaults trending towards a death spiral.
Indeed, many on the extremes, left and right, seek that death to foster a rebirth into their vision of proper governance – from pure socialism where the government takes over everything and flattens economic inequality decimating wealth at every level to a strict White Christian (male dominated) nationalist dictatorship. Most Americans are in the middle, but extremes are willing to cross lines and inflame risks at a new frightening level. Proliferation of guns (including assault weapons) has been enhanced by the increased willingness to use them for political reasons.
Yet there are historical back and forth shifts, most simply detected in swings between emphasizing individual rights during periods of relative prosperity and stability (think the civil rights legislation and judicial determinations in the 1950s-60s) to prioritizing private ownership in times of uncertainly, polarization and instability (think Trump era legislation and the judicial rulings of his appointees). Or the Earl Warren Court vs the John Roberts panel.
The pandemic slammed both earnings and stability, and just as we thought we were recovering, the Federal Reserve opted for recession over inflation in recent times. Bloomberg (carried by the Los Angeles Times, May 25th) noted: “U.S. weekly wages fell in 2022, according to new Bureau of Labor Statistics figures, revealing widespread softness that wasn’t previously evident in other data… Average weekly wages were $1,385 in the fourth quarter of last year, a rare 2.3% decline from the same period in 2021, the latest results from the Quarterly Census of Employment and Wages, published Wednesday [5/24], showed…The drop in 2022 followed a 5.9% increase the year before.” And just about everything costs more. Significant layoffs, particularly in the tech sector, underscored the economic instability. The prosecution of insurrectionists and those attempting to overturn the 2020 presidential election provoked political instability.
We’ve watched as individual rights fall by the wayside. Voting restrictions now restrict those same voting rights accorded in those Warren Court-era decisions and legislation. A woman’s right to control her body ended with the reversal of Roe v Wade, but property rights are flying high. From finding that Warhol’s Prince series infringed on the property owners copyright, where fair use took a giant step backwards, to restrictions on the reach of federal agencies as they impact private property. But the Court’s 5-4 May 25th decision in Sackett vs. EPA set back the Clean Water Act decades and threatens the Environmental Protection Agency’s ability to deal with water shortages and climate change.
Simply, a couple wanted to build a house on a marshy area in Idaho. They used rock and other fill to generate a foundation for the structure. Pictured above. The EPA claimed jurisdiction over this soggy lot next to scenic Priest Lake in Idaho. The EPA instructed the landowners to abandon their efforts and restore the lot to what it was like before the fill was added. Instead, the property owners sued claiming the EPA’s Clean Water mandate did not, on its face, apply to them… that the EPA effectively lacked to power to issue orders concerning their land.
The wording of the enabling statute raised a question of how connected a body of water had to be to an active flowing body of water to confer EPA jurisdiction under the act. “Since the 1970s, the law has broadly protected wetlands from development because they help improve water quality and because dredge material can pollute rivers and bays.
“But the court’s conservative majority said the law’s protections for the ‘waters of the United States’ are limited to wetlands and streams that are directly connected to navigable waterways.
The court ruled in favor of a couple who were blocked from building a home on [that wetland] lot… ‘We hold that the [Clean Water Act] extends to only those ‘wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right,’ so that they are ‘indistinguishable’ from those waters,’ Justice Samuel A. Alito Jr. wrote for the majority…
“Sam Sankar, vice president of programs at Earthjustice, denounced the decision, saying it ‘undoes a half-century of progress generated by the Clean Water Act.’… ‘Almost 90 million acres of formerly protected wetlands now face an existential threat from polluters and developers,’ he said. ‘This decision is the culmination of industry’s decades-long push to get conservative courts to do what Congress refused to do.’” Los Angeles Times, May 26th. What can I say? In unstable times, where possible, the Supreme Court will interpret statutes narrowly to favor private property rights over social policy and personal rights. The pattern repeats itself. Unfortunately.
I’m Peter Dekom, and I suspect this is one aspect of constitutional interpretation that you just might have overlooked.
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