A quick break from the campaign-o-rama for a couple thoughts on the new Supreme Court.
First, by ‘new,’ I don’t just mean Justice Coney Barrett, but the transformation that has happened during this administration. I’m looking at the tea leaves, and I'm going to throw it out there that there is now a higher probability that by the time Gen X is shuffling off this mortal coil, the United States as we know it will cease to exist. I'm not saying this to be dramatic: it just seems inevitable.
At the outset, let me say I’m making one big assumption that I'm willing to concede I'm not 100% sure is right, and that is that any changes to the judiciary, if any, won't be as significant as needed to truly stem the tide of conservative, corporatist, minoritarian jurisprudence that will be unleashed starting next week. I say this because the kind of systemic changes that are needed aren't in this country's nature anymore, even if one party controls both houses of Congress and the Presidency.
For example, look at the ACA’s journey - Democrats had 60 votes in the Senate and still had to game the system to get it through. Moreover, even if big changes do get through, the courts are now gamed where a generation of judges will be more than happy to stop such things. Basically, a lot has to happen for The Big Change to happen:
IF Democrats win the Presidency and the Senate, and
IF they get rid of the filibuster, and
IF Biden's Blue Ribbon Panel recommends big changes, and
IF Biden can be convinced to do it, and
IF they can get it done before midterms, and
IF they can write a good enough law to withstand legal scrutiny...
Then maaaaaybe it happens.
Don’t get me wrong: I hope it does, and so would our founders who made this system, because what has happened is a flat-out cynical bastardization of their vision. Being honest, however, those are a lot of big ifs (and not just because I capitalized all of them). So with that, my assumption is that any changes will be less than what is needed to right the ship. So what?
Taking a step back, it’s already pretty evident we're splitting up into peoples with different values. These differences have existed, always, of course, but with the stove-piping of information and news, these differences are getting larger and are getting larger quickly. Even so, to this point, there has been enough of a national structure, enough of a nation with enough in common, to hold all those differences together.
Enter the new Court.
The Court now not only has a super majority, but that majority is filled, almost exclusively, with rightist ideologues like never before: there’s no Kennedy; there’s no O’Connor. The Chief is an unreliable moderating influence, at best. Now that he doesn’t need to be the fulcrum of the Court, he may just say to hell with it and show all his true colors.
As a result, the Court is teed up to put forward the Federalist society’s dream of limiting federal power like never before. No matter what the decision he Court is issuing, there will likely be one common subtext to almost all of them: the federal government can’t do that and a lot of power is going to devolve back to the states. This Court will weaken federal power to regulate. Many currently federally-protected rights will be diminished, if not done away with.
States will have, therefore, even greater autonomy in the scheme of federalism. Over time, that autonomy will lead to local legislation and local differences and no power will exist to put a check on such changes. Equal protection of the laws as a national idea will be whittled down to a nub. Here’s what I mean, in some (sort of-hypothetical) examples:
- Want to have complete control of your own body? Move to Massachusetts.
- Don’t like it that gays can marry? Move to Alabama.
- Unfettered right to Vote? Oregon, here I come.
- Want to live in a conservative quasi-Christian theocracy? Alabama is open to you.
- Need legalized pot? Try the west coast.
- Got a business idea but can’t deal with regulations to get it going or make money? I hear Florida is nice.
In time, the tribal divisions we already know exist will become geographic, as well, as people select where they live—not based on the weather or the terrain, but based on the different rights and duties of each state. In time, we won't share enough of anything "American" anymore.
Eventually, Massachusetts will wonder why it's paying a ton of federal taxes for public services in Alabama and getting nothing close to similar value back. Texas will wonder why its oil is going so cheaply in Washington when it’s going for a lot more to other countries (accounting for transaction costs, of course). Over time, these issues, the divisions — be they social, political, or economic — will get too large, and a split becomes not only inevitable, but desirable.
I'm not saying this with any kind of judgement. It could be exactly what needs to happen. It could happen without violence or even malevolence. But in any case, I seriously doubt things will stay status quo for all that much longer. This Court, like Congress, is now bought and paid for, and is going to change things in fundamental ways, and our fundaments are already being pushed to the point of breaking. Besides, 250 years is a pretty good run.
If you’ve read this far, thanks. There’s a lot to do in the next few days, but I had to get that off my chest. Feel free to tell me why I’m wrong because I like this country, a lot, and who needs that kind of uncertainty?
Anyway, none of this matters if we don’t get rid of a few obstacles, first and foremost, so, please, it’s time to get back to the election: go do a phone bank!