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The Supreme Court Has Always Been Terrible

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Index to posts in this series

The Civil Rights Cases

The Slaughterhouse Cases and US v. Cruikshank are preludes to the final gutting of the Reconstruction Amendments in The Civil Rights Cases, decided in 1883. Earlier bills aimed at insuring the full citizenship of Black people were struck down by the Supreme Court but Congress kept trying, passing another Civil Rights Act in 1875.

The new law required all businesses to serve people equally regardless of race or prior condition of servitude. The Civil Rights Cases are a consolidated group of cases brought by Black people to enforce their right stay in a hotel, to visit a theater, to sit in the dress circle of a theater, and for Black women to ride in the Ladies Car on a railroad. The Court struck down the law on the same grounds as cases linked above. I have two further observations.

1. Writing for the majority, Joseph Bradley writes:

We have … felt, in all its force, the weight of authority which always invests a law that Congress deems itself competent to pass. But the responsibility of an independent judgment is now thrown upon this court, and we are bound to exercise it according to the best lights we have.

Bradley doesn’t say who threw the “responsibility of an independent judgment” onto him. He uses the passive voice to hide it. We know it can only come from the minds of the members of the Court. He also knew he could get away with this outrageous assertion of power. By 1883 Congress was controlled by the Democrats, then the part of White Supremacy, so they didn’t care. The presidency, then at a low ebb in power, was irrelevant.

The lives and liberty of Black people didn’t count, and nothing was left of the Reconstruction Amendments.

2. To add insult to injury Bradley offered this argument.

When a man has emerged from slavery, and, by the aid of beneficent legislation, has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen and ceases to be the special favorite of the laws, and when his rights as a citizen or a man are to be protected in the ordinary modes by which other men’s rights are protected. There were thousands of free colored people in this country before the abolition of slavery, enjoying all the essential rights of life, liberty and property the same as white citizens, yet no one at that time thought that it was any invasion of his personal status as a freeman because he was not admitted to all the privileges enjoyed by white citizens, or because he was subjected to discriminations in the enjoyment of accommodations in inns, public conveyances and places of amusement. Mere discriminations on account of race or color were not regarded as badges of slavery.

The Supreme Court had struck down that “beneficent legislation”. Bradley knew about the Colfax Massacre. He knew the army had been sent in to stop murderous groups like the KKK. He know about lynchings, rapes, robberies, and mob violence. He knew that states refused to protect Black citizens, and that Congress was trying to fill the gap. He knew full well the intent of the Reconstruction Amendments was to enable the federal government to protect Black Citizens. He just didn’t care.

Bradley would fit right in with the MAGA SCOTUS of today.

Our Current SCOTUS Doesn’t Care About The Consequences of Its Decisions

Three examples will suffice.

Gun Case. Here’s a section of the oral argument in Macdonald v. City of Chicago.

… BREYER: You’re saying they can have — no matter what, that the City just can’t have guns even if they’re saving hundreds of lives — they can’t ban them.

….

… SCALIA: There’s a lot of statistical disagreement on whether the Miranda rule saves lives or not, whether it results in the release of dangerous people who have confessed to their crime, but the confession can’t be used. We don’t — we don’t resolve questions like that on the basis of statistics, do we?

Miranda is not analogous, and the intellectual fraud Scalia knew it. The statistics the odious Scalia is talking about are real dead and injured people. Like this child. Scalia doesn’t care about these murders or what guns and gun violence do to our society. He thinks his views of the intent of the Founders are more important. He thinks the Founders would sacrifice thousands of dead people for the right to waltz around with an AR-15.

The OSHA Rule. Here’s a snippet from oral argument on the OSHA Covid vaxx or test rule.

… ROBERTS: No, it’s not so much that OSHA has less power. It’s that the idea that this is specific to particular agencies really doesn’t hold much water when you’re picking them off one by –one by one.

I think maybe it should be analyzed more broadly as this is, in effect, an effort to cover the waterfront. I’m not saying it’s a bad thing.

But I don’t know that we should try to find, okay, what specific thing can we find to say, oh, this is covered by OSHA? What specific thing can we find to say that this is covered by the hospitals? What specific thing can we find to say, oh, no, we’re doing this because this is a federal contractor?

It seems to me that the more and more mandates that pop up in different agencies, it’s fair –I wonder if it’s not fair for us to look at the Court as a general exercise of power by the federal government and then ask the questions of, well, why doesn’t Congress have a say in this, and why don’t the –why doesn’t this be the primary responsibility of the states?

Roberts is saying it’s suspicious that Biden (and Trump before him) marshaled all government agencies to deal with the pandemic. He’s going to decide how the government can respond, no matter what the statutes say, and as Elizabeth Prelogar, the Solicitor General responds, he could just read the statute. But you won’t see Roberts taking any blame for the people who died, or spent days or weeks in intensive care, or got long Covid, because of his decision. For him, that’s just statistics. He doesn’t care.

Abortion. In Dobbs v. Jackson Whole Women’s Health Alito says SCOTUS doesn’t have to follow precedent, meaning Roe v. Wade, in part because no one can prove they rely on it. Reliance requires proof that one is planning in advance based on the precedent. No one plans to get pregnant then get an abortion. Presto, no reliance. There’s more, and it just gets more cruel.

Alito ignores the actual effect of Roe v. Wade: that women and their families can control their own lives, that their lives are valuable. The abstract idea that states should have a say in women’s lives is more important than an unknown number of deaths, thousands of dangerous pregnancies, and loss of dignity as citizens. Alito doesn’t care.

Conclusion

The Constitution doesn’t give SCOTUS the final say on our rights. It doesn’t say SCOTUS has the unrestrained power to throw out laws and rules created by the elected branches. That’s all invented by SCOTUS itself, taking power and control away from democratically-elected officials.

The Fox News Six would repeat every decision of the Reconstruction Era Supreme Court. They follow in the footsteps of people who don’t care.

SCOTUS Is Wrecking The Societal Safety Net

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The right-wing wrecking crew on SCOTUS is destroying the safety and security that make it possible to live in our society. They oppose governmental power when it’s used to protect us from guns and disease, and they strike at rights people need to participate fully in our complex capitalist society.

The Constitution doesn’t give SCOTUS the power to make these decisions. An earlier version of SCOTUS arrogated the power of judicial review to itself. Whereas the other branches have to justify their exercise of power by reference to the Constitution, SCOTUS justifies its power by pointing to an ancient precedent set by itself. For a discussion of this history and a defense of judicial review, see this article by Erwin Chemerinsky in The American Prospect.

To defuse protest against this power grab, for a long time SCOTUS exercised its power sparingly, and only in egregious cases. Perhaps the first instance of overreach was Dred Scott, which was reversed by the Civil War and the Reconstruction Amendments.

When SCOTUS got out of control in the 1930s, striking down New Deal legislation repeatedly, the other branches took aggressive action to protect their Constitutional powers.

In the 1970s conservatives and radicals rebelled against the Civil Rights cases and other changes wrought by the Warren and Burger Courts. In response, Republicans stacked SCOTUS with right-wing ideologues who have now run amok.

When I say “run amok”, I mean that all of the important decisions of the six SCOTUS right-wingers ignore the interests we all share in living in a safe and secure environment. It’s as if they believe that, as Margaret Thatcher put it, there is no such thing as society. Worse, the individuals affected by the outcomes are never heard, and the decisions only recognize the interests of a tiny minority. This post is focused on gun cases, but there are others equally vile.

New York State Rifle And Pistol Ass’n. Inc. v. Bruen holds that no restriction on the ownership of guns is Constitutional unless “… it is consistent with the Nation’s historical tradition of firearm regulation.” The Holy Six bluntly tell us we can’t protect ourselves from the climate of fear created by today’s weaponry.

In US v. Perez-Gallan, the defendant was charged with carrying a gun while subject to two court orders barring such possession. The District Judge, David Counts, held that there weren’t laws barring people subject to domestic abuse protective orders from having guns in 1792; therefore that can’t be Constitutional today.

In Cargill v. Garland, the 5th Circuit en banc ruled 13–3 to invalidate an ATF regulation banning bump stocks. It claims that a firearm equipped with a bump stock is not a machine gun within the statutory definition, so the ATF regulation banning them is not within its statutory power. There’s a conflict among the Circuits, so the SCOTUS death panel has the opportunity to promote murder by machine-gun equivalents.

It’s worth noting that John Roberts demands governmental protection for all these judges to insulate them from the dangers they create.

None of the endangered parties are before these courts. Perez-Gallan’s ex-wife isn’t there. In the bump-stock case none of the people murdered in Las Vegas are there, nor are their families and friends, or the people who ran or cowered in fear. None of us normal people from Chicago testified about the impact of guns on our lives after months of deadly violence, car-jackings, road-rage shootings, and mass killings like the attack on the Highland Park Fourth Of July Parade.

So who was present? Well, in Bruen the Appellants are the New York State Rifle and Pistol Assn, and a couple of losers who don’t qualify for a concealed carry permit under New York law. In Cargill, the Appellant is a gun nut who turned in several bump stocks and then sued. Perez-Gallan is a truck driver who is subject to a domestic abuse protective order from Kentucky barring him from gun ownership and a separate order barring possession of guns while released on an assault charge. In each case, the opposing parties are government officials.

In other words, murder-neutral courts make these decisions in a bubble, where the only parties are government officials and gun fanatics.

Now I’m sure that the defenders of these laws and their lawyers are dedicated, hard-working, and skilled. But that’s not the issue. The issue is that courts are free to decide societal questions without regard to the specific tangible concerns of the people whose lives are at stake in these cases. After Bruen, the interests of normal people are irrelevant. Only the interests of gun fanatics are relevant. Courts, parties, and lawyers don’t have to look at the coffins of the dead, or the scars of the damaged. They don’t have to consider the psychological impact of shattered bodies on the families of the dead and wounded. They are instructed to ignore the consequences of their decisions. They pretend it’s all just words in a game of legal Scrabble.

They can also ignore the purposes of the Constitution, set out in the Preamble:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

These decisions don’t insure domestic tranquility, they don’t promote the general welfare, and they don’t secure the blessings of liberty for the vast majority.

Instead, they insure domestic violence and homicide. They insure that none of us can go to a Church, a grocery store, a concert, or a Fourth of July parade without fear of being shot. They endanger the lives and liberty of every last one of us.
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Photo by Arvell Dorsey Jr. via Flickr.

No, There Is No Relative Human Value Status In Tragic Shootings

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The BREAKING NEWS tonight is nine people being shot to death in Charleston South Carolina. From ABC News:

Nine people were killed when a gunman opened fire in a historic Charleston, South Carolina church Wednesday evening and police were searching for the suspect.

Police said that eight people were found dead inside the church. Two other people were rushed to the hospital and one died.

“We’re still gathering information so it’s not the time yet for details,” Mayor Joe Riley told local newspaper The Post and Courier. “I will say that this is an unspeakable and heartbreaking tragedy in this most historic church, an evil and hateful person took the lives of citizens who had come to worship and pray together.”

CNN further reported that the knee jerk mayor of Charleston told reporters that it is all obviously a “hate crime” because people in a church were shot.

Is this, yet another, mass murder with all too easy to bring to bear and fire guns in the US tragic? Yes, obviously. Tragic is being too kind and semantically vague. It is horrid.

But, please, it is NOT worse because the victims were church goers, as their lives are not worth more than agnostics, atheists or other humans. Black children are worth no less than white suburbians. One faith is worth no more than the next or none at all. Just stop with that blithering idiocy.

Human life is precious, and we are all entitled to live. You are not privileged more than me, no matter how pious you may be, or pretend to be.

So, grieve mightily the gross and unnecessary loss of life in Charleston South Carolina tonight. But those lives are worth nothing more than Eric Garner, Walter Scott, Michael Brown or other human senselessly slain in the ridiculous gun fetish culture of the United States. And, no, Mr. Mayor, the locus of the shooting in a church does not de facto make it a “hate crime”. Stop with that bogus over claim too. Hyperbole is the antithesis of informed viewpoints.

John Galt Kills Americans

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The National Research Council and Institute of Medicine yesterday released the results of a study addressing mortality in the United States as compared to other developed nations. The full report can be purchased here, where a summary also can be downloaded as a free pdf file. The press release on the study frames the questions addressed:

On average, Americans die sooner and experience higher rates of disease and injury than people in other high-income countries, says a new report from the National Research Council and Institute of Medicine.  The report finds that this health disadvantage exists at all ages from birth to age 75 and that even advantaged Americans — those who have health insurance, college educations, higher incomes, and healthy behaviors — appear to be sicker than their peers in other rich nations.

“We were struck by the gravity of these findings,” said Steven H. Woolf, professor of family medicine at Virginia Commonwealth University in Richmond and chair of the panel that wrote the report.  “Americans are dying and suffering at rates that we know are unnecessary because people in other high-income countries are living longer lives and enjoying better health.  What concerns our panel is why, for decades, we have been slipping behind.”

From the summary, we have this long explanation of the causes of high US mortality, where I have added emphasis:

The panel’s inquiry found multiple likely explanations for the U.S. health disadvantage:

• Health systems. Unlike its peer countries, the United States has a relatively large uninsured population and more limited access to primary care. Americans are more likely to find their health care inaccessible or unaffordable and to report lapses in the quality and safety of care outside of hospitals.

• Health behaviors. Although Americans are currently less likely to smoke and may drink alcohol less heavily than people in peer countries, they consume the most calories per person, have higher rates of drug abuse, are less likely to use seat belts, are involved in more traffic accidents that involve alcohol, and are more likely to use firearms in acts of violence.

• Social and economic conditions. Although the income of Americans is higher on average than in other countries, the United States also has higher levels of poverty (especially child poverty) and income inequality and lower rates of social mobility. Other countries are outpacing the United States in the education of young people, which also affects health. And Americans benefit less from safety net programs that can buffer the negative health effects of poverty and other social disadvantages.

• Physical environments. U.S. communities and the built environment are more likely than those in peer countries to be designed around automobiles, and this may discourage physical activity and contribute to obesity.

No single factor can fully explain the U.S. health disadvantage. Deficiencies in the health care system may worsen illnesses and increase deaths from certain diseases, but they cannot explain the nation’s higher rates of traffic accidents or violence. Similarly, although individual behaviors are clearly important, they do not explain why Americans who do not smoke or are not overweight also appear to have higher rates of disease than similar groups in peer countries.

More likely, the U.S. health disadvantage has multiple causes and involves some combination of inadequate health care, unhealthy behaviors, adverse economic and social conditions, and environmental factors, as well as public policies and social values that shape those conditions.

What stands out to me is that the list of reasons Americans die early overlaps significantly with the social goals of right-wing libertarians who worship Ayn Rand and John Galt. Read more →

Whitlock, Costas Bravely Point to Role of Guns in Perkins, Belcher Tragedy

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[youtube]http://www.youtube.com/watch?v=B1ijkccD9_8[/youtube]

In a disgusting demonstration that for the NFL, money dictates that “The Show Must Go On”, the NFL never considered those who, like Dave Zirin, found it astounding that the NFL would encourage the Kansas City Chiefs to go ahead with their game barely 24 hours after Chiefs Coach Romeo Crennel and other Chiefs personnel witnessed Jovan Belcher kill himself with a handgun shortly after he had murdered his girlfriend, the mother of their three month old son daughter. Zirin tweeted throughout the day on the coverage provided by the various networks as they continued broadcasting games, mostly as if the event had never happened.

But then, just at the close of halftime in the nationally televised Sunday night game on NBC, Bob Costas took the microphone for the minute and a half you see in the YouTube above. Costas started by slamming the cliche that the playing of the game somehow began the “healing” process for those affected by the tragedy, giving voice to the sentiment Zirin had stated earlier. But then Costas moved on to confront an even bigger taboo in the national debate, as he quoted this powerful column by Jason Whitlock, who dared to point out the way that our national sickness relating to guns contributed to this tragedy. From Whitlock:

I would argue that your rationalizations speak to how numb we are in this society to gun violence and murder. We’ve come to accept our insanity. We’d prefer to avoid seriously reflecting upon the absurdity of the prevailing notion that the second amendment somehow enhances our liberty rather than threatens it.

How many young people have to die senselessly? How many lives have to be ruined before we realize the right to bear arms doesn’t protect us from a government equipped with stealth bombers, predator drones, tanks and nuclear weapons?

Our current gun culture simply ensures that more and more domestic disputes will end in the ultimate tragedy, and that more convenience-store confrontations over loud music coming from a car will leave more teenage boys bloodied and dead.

In the coming days, Belcher’s actions will be analyzed through the lens of concussions and head injuries. Who knows? Maybe brain damage triggered his violent overreaction to a fight with his girlfriend. What I believe is, if he didn’t possess/own a gun, he and Kasandra Perkins would both be alive today.

Whitlock deftly destroys so many of the false narratives that our society has forced upon it regarding guns. As he states, this tragedy demonstrates that the second amendment actually threatens our liberty rather than protecting it. He goes on to state that although the second amendment is regarded by many as the last refuge by citizens against a government turned tyrannical, mere guns won’t protect against a determined government armed with “stealth bombers, predator drones, tanks and nuclear weapons”. Whitlock cleanly demonstrates that the pervasive nature of guns in our sickened society is what enables so many senseless deaths, pointing out that both Perkins and Belcher likely would still be alive if a gun had not been available during Belcher’s moment of extreme rage. Whitlock also alluded to the tragic murder of Jordan Davis in Jacksonville, Florida recently in a case that appears to possibly be headed once again into an inovcation of Florida’s “Stand Your Ground” law that many see as a license for murder.

Whitlock went directly in the face of the cliche, often pointed out by David Waldman on Twitter, that the immediate aftermath of a tragedy of this magnitude is “too soon” to enter into a discussion on the perils of society’s glorification of guns. Others would say that public discussion of guns on a rational basis is no longer possible because of the overwhelming power of the NRA.

The fact is, it is never “too soon” to discuss the role of guns in tragedies because the tragedies come at us so quickly that we would otherwise always be in the quiet period after one gun tragedy or another. But even more importantly, the myth of the power of the NRA has been completely destroyed. In the 2012 elections, Media Matters informs us that the NRA spent just under $12 million but only 0.42 percent of those funds supported winning candidates and only 0.39 percent opposed losing candidates.

Just as the latest round of elections and the current Kabuki over the “fiscal cliff” is poking a hole in Grover Norquist’s power over preventing tax increases, our society may actually be moving toward a more rational discussion on the sickness inherent in our gun culture. I don’t harbor any illusions that progress will be fast or that substantive improvements are even still possible, but if changes do finally take place, we may be able to point to the courage shown by Bob Costas last night as the turning point when we finally started a long overdue discussion.