The insurrectionists who stormed the United States Capitol Building on January 6, 2021 in an attempt to overturn the 2020 Presidential election, didn’t realize that a political coup aimed at toppling democracy in the United States had already taken place twenty years earlier. In a 5-4 majority decision rightwing Republicans on the Supreme Court gave the Presidential election to George W. Bush securing their radical political agenda. Despite conservative claims that they support state prerogatives, the Court’s Bush v. Gore decision threw out a ruling by the Florida Supreme Court. The ruling prevented a vote recount in Florida that would most likely have elected Democrat Al Gore as President of the United States. The five-member Court majority included William Rehnquist, first appointed to the Supreme Court by Richard Nixon in 1972 and appointed as Chief Justice by Ronald Reagan in 1986, and Associate Justices Sandra Day O’Connor, Antonin Scalia, and Anthony Kennedy, all appointed by Reagan, and Clarence Thomas appointed by George H. Bush.
Since 2000, the rightwing cabal on the Court has expanded because of Bush’s appointment to the Court of Samuel Alito, a successful effort by Senate Majority leader Mitch McConnell (R-KY) to block a Democratic nominee during the Obama Presidency, and because of three hard line rightwing Trump appointees, Neil Gorsuch (2017), Brett Kavanaugh (2018), and Amy Coney Barrett (2020). Each outwardly pledged to respect Court precedents like the 1973 Roe v. Wade decision in order to win Senate approval, but each has a history of deep hostility to reproductive freedom in the United States, the right of a woman to end an unwanted pregnancy, and a Constitutional guarantee of personal privacy. Republican Senator Susan Collins of Maine accuses Gorsuch and Kavanaugh of misrepresenting their views on the importance of respecting legal precedents and past Court rulings at their Senate nomination hearings; Collins was too polite to accuse them of lying.
The rightwing Court majority, with and without the Trump appointees, has rolled back democracy and constitutional protection for individual rights in a number of major decisions. The conservative legal movement, based in the Federalist Society, rejects the idea that constitutional interpretation must evolve as society changes. For them, America remains stuck, at least legally, in an unchanging 18th century view of the world. They accuse judges who have applied the 14th Amendments right to equal protection of the law of usurping the legislative power of the states. They ignore that the 14th Amendment, approved after the Civil War, was placed in the Constitution expressly because Southern state legislatures were attempting to strip away the citizenship rights of newly emancipated African Americans in similar ways that some state legislatures today are banning a woman’s reproductive freedom.
Reversals, the rejection of prior Court decisions, once rare, have now become standard practice for a Court dominated by rightwing ideologues. In 2019, the American Civil Liberties Union identified 73 partisan 5-4 Court rulings that favored conservative and corporate donor interests.
In its 2010 Citizens United v. Federal Election Commission decision, the rightwing majority of the Supreme Court by a 5-4 vote ruled that corporations, foundations, and outside groups and wealthy individuals can spend unlimited sums to influence elections and pervert democracy. With this decision, the Court’s rightwing cabal overturned election spending restrictions that had stood in place for over 100 years.
A 2018 decision in Janus v. AFSCME dramatically undermined labor unions for teachers, firefighters, police officers, and other government employees, overturning a previous unanimous Court decision in Abood v. Detroit Board of Education (1977) said that requiring government employees to pay union dues that weren't used for political purposes did not violate Constitutionally protected freedoms.
In Janus, the rightwing Court majority voted 5-4 to define labor unions as political actors and barred union contracts with public agencies that required workers to pay an agency fee even if they decided not to join the union. Unions argued that workers who were not members received the same benefits as union members so they should have an obligation to pay to support contract negotiations, grievance procedures, and health benefit programs. The Court ruling seriously weakened the ability of union movement to organize workers, and fight for programs like a higher national minimum wage, health insurance for those without coverage, and expanded funding for social security.
In Shelby County v. Holder (2013), the rightwing Court cabal declared a made-up doctrine of “equal sovereignty” to justify invalidating the “pre-clearance” requirements of the 1965 Voting Rights Act. The law authorized the federal Justice Department to decide whether a state law intentionally or in practice interfered with the voting rights of minority citizens prior to its going into effect. In Brnovich v. Democratic National Committee (2021), the rightwing cabal further emasculated the Voting Rights Act. Freeing states, especially in the South, to interfere with the ability of Black and Latinx citizens to vote by blocking mail in ballots, making polling places inaccessible, requiring state issued photo ids, and making voter registration more difficult.
The Court is now weighing stripping away the power of the federal government through the Environmental Protection Administration to protect the atmosphere and address climate change by limiting carbon dioxide emissions from coal powered electricity generating plants.
This week a secret “draft” opinion written by Justice Samuel Alito was leaked that shows how the Supreme Court rightwing cabal, now with a 6-3 Trump voting majority, plans to overturn the 1973 Roe v Wade decision that respects a broad right to personal privacy and prevents states from denying women the right to terminate a pregnancy. Alito, in an opinion that will likely be supported by Thomas, Gorsuch, Kavanaugh, and Barrett, and maybe Roberts, wrote that “Roe was egregiously wrong from the start . . . We hold that Roe and Casey must be overruled.” The 7-2 ruling in support of the 1973 Roe decision included five Republican appointed justices, but that was a very different era and Republican party.
Legal scholar and Harvard professor Laurence Tribe warns that once Alito’s opinions are elevated into law by the Court, we face “a nationwide abortion ban, followed by a push to roll back rights to contraception, same-sex marriage, sexual privacy, and the full array of textually unenumerated rights long taken for granted.” Unenumerated rights, such as the right to personal privacy, are individual rights, not specifically listed, but protected as reserved to the “people” in the 9th Amendment to the Constitution and further protected by the 14th.
Chief Justice Roberts maintains that there is no such thing as Republican and Democratic Supreme Court Justices, but the voting patterns and biases clearly prove him wrong. This is a rightwing Republican court aligned with the Trump MAGA keep America white, male-dominated, super-straight, intellectually and culturally intolerant, and Christian campaign. Senator Sheldon Whitehouse (D-RI) asserts “Republican appointees to the Supreme Court have, with remarkable consistency, delivered rulings that advantage the big corporate and special interests that are, in turn, the political lifeblood of the Republican Party.”
There have been a number of “Days Infamy” in United States history, April 12, 1861 (Fort Sumter), May 31, 1921 (Tulsa Race Massacre), December 7, 1941 (Pearl Harbor), August 6, 1945 (Hiroshima), September 11, 2001 (World Trade Center), but December 12, 2000 may turn out to be the most infamous, the day democracy died.
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