The Supreme Court’s new term begins tomorrow.
And with recent polls showing three-fourths of Americans distrusting the court (see, e.g., story here), it’s the court itself that’s on trial this term.
Several things contributed to the Supreme Court’s nosedive, most of them the fault of the justices. There was Senate Republicans’ Machiavellian maneuvering to pack the court with conservative judges wildly at odds with public sentiment on issues like abortion, gun control, and voting rights. It didn’t help that three of them lied about Roe v. Wade being “settled precedent” during their confirmations.
There was Neil Gorsuch bending the facts of the praying football coach case to fit the outcome the conservative bloc wanted.
There’s Clarence Thomas, whose wife is neck-deep in Trump’s efforts to overthrow the 2020 election, refusing to recuse himself from cases related to that election and being the only justice to vote against requiring Trump to disclose January 6 documents to the House investigators (see story here).
There’s the court’s blocking federal judges from intervening against undemocratic gerrymandering. Now, many people are worried the court could go much farther in undermining the will of the people (see story here).
On Sunday, October 2, 2022, AOL News published a brief rundown here on cases the court will take up, and the damage it could inflict on society, in its new term.
At the top of the list is affirmative action in college admissions, not limited to public universities. AOL News simply points out the court has been asked repeatedly over the last 20 years to end affirmative action in higher education, but until now has “reaffirmed the validity of considering college applicants’ race among many factors.” But this is a different court now.
Here’s my thoughts on that issue. Affirmative action is a Big Fat White Grievance, and a major target of conservative culture warriors. The logical and moral arguments for their position are beyond weak.
The White race was never discriminated against in this country, and isn’t being discriminated against now simply because universities make efforts to seek out qualified minority students for some of the seats in their lecture halls. We’re not talking about reserved places; quotas have already been thrown out.
Another racially tinged case before the court this term is a challenge to the Indian Child Welfare Act’s mandated preference for placing Native American children in Native American foster homes and adoptive families when possible.
This policy grew out of America’s past history of taking Native American children away from their families and putting them in boarding schools to “Americanize” them, but even without that, it’s just common sense. Why should any White family have a “right” to adopt a Native American child, if a suitable Native American adoptive family is available? Doesn’t that child have a right to grow up in its own culture, among its own people? And isn’t that the preferred way to raise any child?
The court will also get a crack at gutting what’s left of the Voting Rights Act in this term, and nobody will be very surprised if the conservatives do that.
Driving the conservative justices’ legal reasoning is the dubious philosophy that if the Founding Fathers didn’t explicitly write something into the Constitution, it ain’t there. Now I’ll discuss why that’s problematical beyond the obvious fact that the drafters of the Constitution couldn’t have anticipated assault rifles or internet privacy issues.
The conservative notion that this is some sort of sacred document from on high embodying to perfection everything we’ll ever need to govern ourselves is poppycock. The people who drafted the Constitution in 1781 probably would be first to admit they cobbled together an imperfect set of compromises necessary to get 13 colonial legislatures — elected only by white male landowners, including many who owned slaves — on board for forming a government. You do what you gotta do to make things work, and that’s what they did. The constitution they came up with was so deficient in so many ways its authors immediately tacked on ten amendments. Over a dozen more would follow in ensuing years.
We’re after the same thing they were after, namely something to hold the states together in a union, and make things work in the times we’re living in. But the times have changed, society has changed, and today that requires a government that can deal with America’s racial history, AR-15s, the internet, nuclear secrets, and a whole lot of other things the Framers couldn’t have imagined.
Historically, the Supreme Court kept the Constitution workable by adapting it to contemporary needs in a manner acceptable to most Americans. (There will always be some outliers, but it’s not necessary for everyone to go along in order to make things work.) Slavish, inflexible adherence to what was intended 241 years ago, for a society that existed 241 years ago, isn’t how you do that; and it’s an approach rejected by every generation of Supreme Court justices until now. That approach to interpretation is a modern fabrication with partisan motives and purposes.
If conservatives actually believe the Constitution is perfect and inviolable, then why do they want to convene a constitutional convention? (See story here.) Clearly, they themselves aren’t happy with it themselves. Their goal is rewriting it in order “to fundamentally remake the United States” into “a conservative nation,” even though that’s not what the majority of Americans are.
The “sweeping changes” these conservatives want aren’t in our best interests, such as gutting environmental laws, and imposing “term limits” on federal workers which would gut the federal government of hired expertise.
Above all, they want to weaken the federal government and turn the United States into more of a collection of little principalities; in other words, Balkanize our country. That’s a bad idea on its face. The last thing we need is to weaken ourselves against foreign adversaries like Russia and China.
The people who created our system of government, and those who followed in their steps, had many good ideas and ironed out a lot of bugs. But as they themselves would acknowledge, achieving a more perfect union is an ongoing process; and a court that chains us to the way things were done 241 years ago interferes with making further progress.
America has come a long way since slavery was embodied in our founding document, but there’s still work to do in achieving racial equality in our society, and affording the same educational opportunities to minorities as the rest of us have. If a reactionary faction has turned the court into an instrument for turning back the clock and blocking progress, then we’ll have to do something about the court.