SCOTUS Is Changing The Definition Of American Citizenship

In this post I discussed the Republican plan to rig SCOTUS by selecting SCOTUS nominees who would reliably vote their way on issues important to their base and their donors. They’ve succeeded. In this post I give a brief sketch of their goals for each group, the means of enforcement, and the impact on the nature and benefits of American citizenship.

1. Donors. There is an oligarchy inside our democracy, as I have been saying for over a decade. It dominates the Republican donor class. Oligarchs want the freedom to do anything they like with their money and the assets they control. They want the freedom to do whatever they think will make them richer. And they really hate the idea of taxation and all forms of redistribution of wealth. Their current goal is to weaken the ability of the federal agencies to regulate, because that reduces the value of their assets.

The first steps were legislative. The Administrative Procedures Act governs the way agencies make rules. Republicans and corporatist Democrats fiddled with it to make it harder for agencies to act quickly, and to increase the cost to the agencies of rule-making. Then the Office of Management and Budget was added as an additional check closer to the President.

Until recently the primary use of the courts was delay. Corporations and their front groups challenged every rule they didn’t like. Courts took these filings seriously, and allowed lawyers to spend years in costly litigation. Gradually courts created a new layer of rules that brought delay and increased costs of regulation. But even that wasn’t enough.

Right-wing lawyers have been arguing that there is no Constitutional basis for administrative agencies, and thus no basis for rules made by agencies. This led to the non-delegation doctrine which limited the power of Congress to delegate authority to agencies. The current version is called the major questions doctrine, which says Congress has to be very specific about what it delegates if there is a big effect. It essentially gives SCOTUS the power to overrule any agency action it doesn’t like by saying Congress wasn’t explicit. As an example, SCOTUS used the shadow docket to strike down a CDC rule extending the nationwide moratorium on evictions in Alabama Assn. Of Realtors v. Department of Health and Human Services, link here. The Court said the cost to landlords was so great that Congress had to explicitly give the agency poser to make such broad rules.

We get a similar result in National Federation of Independent Businesses v. OSHA. In another case on the shadow docket, a 5-4 majority declared that the number of people affected by a workplace safety requirement that people be vaccinated or tested weekly was really big, and only Congress could make such a big decision.

And who gets to decide if a decision is too big? Not Congress. Not the President. Not the elected representatives of the American people. Nope. SCOTUS gets to decide. In these cases the big beneficiaries are the donor class and the anti-vax Trumpists.

2. The religious fanatics. During the pandemic SCOTUS gutted the CDC rules on attendance at super-spreader events, asserting that Churches had to be treated like grocery stores. Here’s a more neutral discussion on ScotusBlog. These cases were also part of the general attack on agency rules dealing with the death and misery caused by Covid.

Of course, for the religious fanatics, the most important cases are attacks on Roe v. Wade. In the first set of cases, SCOTUS just couldn’t figure out how to stop that blatantly unconstitutional Texas bounty law. So they left it in place, seriously impacting abortion clinics in Texas.

The frontal assault is Dobbs v. Jackson Women’s Health Organization, which seeks to limit abortions to 15 weeks, or to get rid of Roe altogether. The case was argued late last year. Here’s a summary from SCOtUSBlog. A decision is expected in June, 2022, and everyone expects a big loss for citizens.

3. Cementing the outcome. It would be possible to get different outcomes if Congress actually represented the will of the majority. To make sure that doesn’t happen, state legislatures draw districts that favor the party in power in the state. In Rucho v. Common Cause, a 5-4 majority of SCOTUS said that partisan gerrymandering “is incompatible with democratic principles”, but sadly courts can’t do anything to protect democracy.

Even racial gerrymandering is fine because it’s always too close to an election, as the Court held in a bunch of shadow docket cases involving obviously racially gerrymandered districts. Here’s a discussion of the problem.

Another challenge to democracy is the idea that state legislatures can make election rules without the checks and balances of their state constitutions, including their governors and courts. This is called the independent state legislature doctrine. I love the idea that this garbage jurisprudence calls itself “doctrines”.

Each of these cases essentially means that we don’t live in a democracy, that the votes of millions of us don’t matter, and in turn, that government controlled by a minority of rich people and religious fanatics cannot be replaced by a majority of voters.

This may breing to mind the principle “one man one vote”, an idea laid out in Baker v. Carr, and the related cases of Reynolds v. Sims and Wesberry v. Sanders. Here’s the thing. Computerized map-drawing has made it so that everyone gets an equal vote, but some votes are more equal than others.

4. Citizenship. I went to law school in the early 70s, so most of the important cases we studied in Constitutional Law were Warren Court cases. I learned to think of them as giving practical effect to the rights and privileges of being a US citizen. For example, everyone has a right to counsel in a criminal case under the Sixth Amendment. Until 1963 everyone with money had that right, but those who didn’t have money didn’t have that right. Then in Gideon v. Wainwright, SCOTUS made that right a reality for every American. In the same way, everyone had a right not to incriminate themselves. That was meaningless until Miranda v. Arizona made it clear that people must be informed of their rights, including their right to have a lawyer present during interrogation.

Another group of decisions made it clear that there were limits on the ability of states and the federal government to control people’s private lives. Griswold v. Connecticut said states can’t regulate birth control for married people. Cases like this limited the ability of government at all levels to intrude on our private lives.

As a result we gradually gained a full panoply of rights as American citizens, rights which could not be infringed by federal, state and municipal governments.

In this post I cited constitutional scholars across the ideological spectrum saying that originalism and textualism were the conservative backlash against these and many other so-called liberal decisions of the Warren Court. The six conservatives now ruling over us plan to gut those decisions. They were all selected for that purpose. In the future, we will have very few meaningful rights as American citizens. The bulk of our rights will be set by states, many of which are gerrymandered so that a minority can decide what you can and cannot do.

That’s not my idea of America.

54 replies
  1. RMD says:

    Thank you for the review. Important set of decisions.
    Citizens United’s “money is speech” and unaccountable, establishes corruption as law.
    ….excuse me, I shouldn’t have said corruption… that was offensive to oligarchs. They just want to express their wishes to elected representatives. That’s all.
    And don’t ask who is giving what to whom. Foreign or domestic.

    • Bobby Gladd says:

      Regarding the “free-speech” proxy thing (“money is speech”– one dollar, one vote), it’s worth noting the increasing conflation of the word “speech” with “expression.” e.g., When I menacingly swagger around in combat gear toting a loaded A.R.-15, in addition to the Second Amendment, it’s my constitutionally protected First Amendment Heroic “right of free expression.” When I openly engage in bigoted acts (not opinions, acts) against marginalized groups such as LGBTQ people, it’s my constitutionally protected First Amendment right of both “freedom of expression” and “freedom of religion.”

      That’s where this shit is heading.

      • Rayne says:

        We’re already there with religion. If their religion requires them to say racist or other xenophobic crap, this current court would see it as wholly protected.

        • Ginevra diBenci says:

          Gotta keep out the menace of Shariah Law. And the Globalists. And the Chinese Communist Party–except for all those cheap trendy clothes.

          “Until we figure out what the hell is going on!”, to recall the clanging words of the ex-president-to-be when he announced his “don’t call it a Muslim ban.”

          • RMD says:

            he was just quoting from “Blind”

            Somebody could have told us where they go
            Crawling all around looking for foot, foot, footprints
            Now tell me what the hell have we become?
            Some dirty little bastards–what the hell is going on?
            No sense of harmony, no sense of
            Time, don’t mention harmony, say:
            What is it? What is it? What is it? Give
            A little shock, and he raises his hand
            Somebody shouts out, says: what is
            It? What is it? What is it??

  2. Ed Walker says:

    I am particularly offended by the absurd suggestion of Amy Coney Barrett that SCOTUS is just trying to apply “the law”.

    “Read the opinion,” she urged audience members, and consider the court’s reasoning instead of judging the ruling solely based on whether or not it was compatible with their own personal political views.

    “It’s not just the result that matters. You can disagree with the result passionately,” she explained. “No judge is deciding a case in order to impose a policy result. They are trying to make their best effort to determine what the law requires.”

    “Does [the decision] read like something that was purely results driven and designed to impose the policy preferences of the majority, or does this read like it actually is an honest effort and persuasive effort, even if one you ultimately don’t agree with, to determine what the Constitution and precedent requires?” Barrett continued. “Is its reasoning that of a political or legislative body, or is its reasoning judicial?” she asked.

    The idea that what matters is what “the law” requires is dumb. If every judge gets to change “the law”, as she most certainly wants to do, we don’t have law. We have raw power.

    • Eureka says:

      “the law” :

      Same thing with what I call the “is/ought” freaks: ‘Why that’s [determinative social Darwinist (&c.) theory of human nature / evolution which I like / propound] just the way it is! I’m not arguing how things ought to be. You’re just too [(concerned with those) subjugated by my pet theory which like I said I don’t think is the right way of things, just how they inevitably must be] to accept that.’

      They invoke moralist philosophy to say they’re not moralizing — but YOU are, and that’s WRONG! — to further institutionalize or reestablish their preferred status quo for any given array under consideration.

      AKA the dressed-up claim to pure motive that’s anything but.

    • DrDoom says:

      Justice Barrett is a liar. We learned that during her confirmation hearings. She is shameless about it. This quotation demonstrates that. While IANAL, there is a school of thought that the societal purpose of law is to provide a set of rationalizing rules to justify the existing distribution of wealth and power that would be sufficiently convincing to the have nots to prevent revolution. No more, no less. Eureka is right; it’s about power.

  3. Silly but True says:

    What did att’y James Bopp do after winning Citizens United? He dismantled election _public_ funding mechanisms essentially once and for all, arguing that instead of the guise of facilitating cleaner elections, public funding laws are really backdoor ways to limit election dollars and therefore “speech.”

    SCOTUS in 2011, year after Citizens United, shot down Arizona public-matching funding law in Ninth Circuit.

    It did so because Bopp had _twenty_ years earlier in 8th Circuit prevailed in having them strike down similar Minnesota law in 1994. That then set up possibility of dueling Circuit opinions which didn’t manifest for another 20 years, that then allowed issue to get sent up to SCOTUS for wider ruling.

    It’s generational warfare. Groundwork gets laid all the time for outcomes that may not manifest for decades.

  4. civil says:

    It is within the power of the House Democrats to change the # of Representatives in the House (discussion by Steve Vladeck: http s://w By itself, this wouldn’t necessarily affect gerrymandering, but it would reduce the difference in voting power of voters in different states when it comes to presidential elections, since the larger the # of Reps in each state, the smaller the impact of the 2 electors in each state associated with the equal distribution of Senators. It would bring the Electoral College distribution much closer to the popular vote distribution. I wrote my Rep. about this a few years ago, and I should write again, especially since I’ve moved and have a different Rep.

      • civil says:

        I was simply trying to abide by my understanding (apparently mistaken) of what you and Rayne prefer when it comes to people including links. Would you clarify when you want people to break links? Thanks.

      • Rayne says:

        Active links hang up some folks’ posts. I’ve mentioned before that if commenters find their posts go to auto-moderation, they could try breaking the active link to see if their comment clears and publishes.

    • HW3 says:

      I am a big fan of expanding the house. Doesn’t solve the non-representative senate but that was part of the original design. But it does help the house and pretty much solve the electoral college problem. Move the house out of the capitol and over to the NBA arena or football stadium if that’s what it takes to fit in all the reps.

      • civil says:

        It would increase the size to ~650 people. If you include the balcony, the Chamber already holds that many people.

        • bmaz says:

          The balcony is absurd, and the “chamber” currently holds 435. So, no, an extra 215 will not fit in comfortably.

          • civil says:

            The gallery/balcony isn’t the floor, but both are part of the House chamber (e.g., per the Architect of the Capitol and 40 USC § 5104). Some Reps and staff were caught in the balcony on Jan 6 when the floor was evacuated. They add over 100 seats to the floor (for Senators, Justices, …) during the SOTU, but yes, it would be hard to seat everyone in a House of 650 on the floor. Regardless, the size of the floor should not be the determining factor in whether the # of Reps should increase.

            • P J Evans says:

              Then you get to be in charge of figuring out where you’re going to put the new chamber.

              • ducktree says:

                The anecdote of Abraham Lincoln printing muddy foot prints on the ceiling comes to mind . . .

    • Silly but True says:

      From House govinfo:

      ht tps://ww

      “Today, the Capitol covers a ground area of 175,170 square feet, or about 4 acres, and has a floor area of approximately 161⁄2 acres. Its length, from north to south, is 751 feet
      4 inches; its greatest width, including approaches, is 350 feet. Its height above the base
      line on the east front to the top of the Statue of Freedom is 287 feet 51⁄2 inches; from
      the basement floor to the top of the dome is an ascent of 365 steps. The building contains approximately 540 rooms and has 658 windows (108 in the dome alone) and approximately 850 doorways.”

      650 is no problem.

      If we up it to 1 per each 30,000 then if we slab up Congresspeople, like stacking them in a clown car, we should be able to fit some 11,000 within a 750ft x 350ft floor while in session.

    • WilliamOckham says:

      Vladeck’s article misses the obvious way to solve the problem of the overrepresentation of rural areas in the U.S. Senate. Granted, everyone else misses it too. We just need to break up the big states, just like we have done in the past. There are 24(!) counties that are larger in land area than Rhode Island and have a larger population than Wyoming. However, it seems unlikely that the Texas legislature would allow Harris County to have its own two U.S. Senators, no matter how much they might like to get rid of Houston.

      California, on the other hand, has nine counties larger in land area than Rhode Island and more populous than Wyoming. If the Democratic party had the internal cohesion of the Republican party, we could have had at least 14 new Democratic senators elected this year and 4 more toss-up Senate races.

      • civil says:

        Even if CA wanted to break the state up, admission of a new state requires an act of Congress. The Senate Republicans would filibuster it, just as they’ve done with the legislation that passed the House granting DC statehood. Vladeck’s proposal only requires the approval of the House.

        • WilliamOckham says:

          Did you miss the part where I said “if the Democratic Party had the internal cohesion of the Republican party”? Suspending the filibuster for admitting new states would be no different than doing it for judicial nominees.

      • P J Evans says:

        Most of those counties are rural, just like Wyoming. Yes, even L.A. has a lot of empty space (mountains and desert) – and a fair amount is owned by the feds.

    • DrDoom says:

      I’ve taken that line for years. There is a disparity of >100,000 people between Wyoming and a California Congressional District. In theory, the House is designed to be most aligned with population. Fixing its size at 435 members has made the House antidemocratic, just not as explicitly so as the Senate.

  5. Alan says:

    I came across this book yesterday: Looks like it might be an interesting history of the rise of the economic/efficiency episteme. More here:

    [Welcome back to emptywheel. Please use a more differentiated username when you comment next as we have several community members named “Alan.” Thanks. /~Rayne]

  6. P J Evans says:

    What good is the Bill of Rights if rights only exist at state level? Have they ever even thought about why we have a federal constitution with a Bill of Rights, and federal laws? Have they ever even read the Preamble?

    (If they want to go back to the Articles of Confederation, they should be required to take 18th century American history again. And this time, pass it with a B or better.)

  7. Craig says:

    Very good commentary. I would suggest supplementing it with the best Senator about the corruption of the courts, Sheldon Whitehouse, which you can see in his series of speeches titled “The Scheme” on youtube.

    [Welcome to emptywheel. Please use a more differentiated username when you comment next as we have several community members named “Craig” or a variant. Thanks. /~Rayne]

  8. Ruthie says:

    The Washington Post Editorial Board had an editorial today about the need for Congress to close the supposed loopholes in the Electoral Count Act that Trump & co wanted to exploit in order to overturn the 2020 election. There was nary a mention of the independent state legislature doctrine, which IMO appears to be an even greater threat with regard to future elections. Other than working to elect more Democrats in swing states in 2022, is there anything to be done about that if a Supreme Court majority supports the idea, which according to what I’ve read is almost certain?

    • Silly but True says:

      The law needs to be changed before someone is successful, and someone will eventually be successful. But the Editorial Board’s absurd position has been that the Electoral College Count Act is Schroedinger’s law: the current law is somehow so simple and clear as to allow no discretionary challenges during the count that the existing law must be changed to allow no discretionary challenges during the count.

      They would be more intellectually honest in noting the current law is extremely vague with respect to limits ad discretion of its empowered entities, had generally been forgotten about and largely been untested until the 1960s, once people started waking up to its existence since 2005 it has increasingly become a politicized weapon to try to remove key electoral votes to swing election outcomes, and has no court opinions or case law to support it, and so should be clarified.

      If a future VP doesn’t simply decide to step further than Pence did which might result in rioting in the streets, it will surely be the 1+1 Rep-Senator challenge with support of congressional majority ratifying the challenge and tossing the votes.

      Boxer provided the more palatable roadmap in 2005 for electoral challenge under existing law, but she lacked majorities in both houses to back her up in getting Ohio tossed. That route ought to also be hardened.

    • Ed Walker says:

      The article I linked says that four of these despots support the idea, and the others aren’t clear. I can’t think of a protection unless the Dems control one house and refuse to count electors chosen over those chosen by the voters. Then tell SCOTUS to kiss their ass.

  9. Ginevra diBenci says:

    The Court has evolved into the right’s pearl of great price since the mid-1960s, when the country finally achieved (cosmetically at least) what it said it stood for at its inception. The women’s movement stoked their fury further, especially among religious reactionaries (a growing group), as did environmentalism. Like you, Ed, my theory of mind regarding the intersection of social, political and judicial realities was shaped by the Warren Court; I didn’t go to law school but I hung out with a lot of law students. Now I read what y’all write.

    For a long time this profound undercurrent, fueled by ever more–and more occult–money (see Shadow Network, Anne Nelson, if you haven’t already), succeeded in otherizing a nation from itself by stoking fear of all who are not your retouched image. Birtherism proved a proletariat godsend, making hate socially acceptable–cheered, even. Now the oligar-theocracy game has gone public, largely through their success in stacking SCOTUS. My question: Did they bite off more than they can chew? I mean, 6-3 is a bit garish, kind of like a golden toilet. Fit, perhaps, for a golden ass, but a shade more attention-drawing than might be comfortable. My other question: Is CJ Roberts asking a question like my first, and if so how is he answering it?

    Ed, thank you as ever for your focus and lucidity. I always appreciate it when you contribute here. Even when I am not up to commenting, please know that I’m reading with gratitude.

  10. Bay State Librul says:

    Good discussion.
    In my opinion, the interpretation of law is convoluted.
    I’m just glad I was born in the Commonwealth.


    • Eureka says:


      Welp, but for that bad (_bad_) spell they were close. Maybe Weds.

      It’s a shame, too, in that The Trade took away Andre Drummond who was the best backup they’ve had for Embiid and now where is he … playing golf or something?

      Check out the Curry sister from another mister:

      And Ed: timely AF on this post…

  11. tinao says:

    Whooaaah, the fucking federalist theocrats have done it, roe will end if women don’t stand up for their own bodies.
    Small government my skinny white ass!

    • P J Evans says:

      respect for precedent, all our asses!
      They respect nothing except power and money (and I’m not sure they think there’s a difference).

    • klynn says:

      Brain drain in the nation’s near future.

      More maternal deaths in our nation’s future.

      Fewer OBGyn’s due to insurance threats with the overturning.

    • tinao says:

      Get out there and talk to your neighbors, co-workers, family, and strangers. This is a turning point we can build on.

  12. Jim Crittenden says:

    Welcome to the post-Civil War South. It is pretty much everywhere now, thanks to the regressive SCOTUS who keeps steering the US in that direction.

Comments are closed.