By Karen Rubin, News-Photos-Features.com
Upholding the law that bars individuals adjudicated to be a danger to themselves or others from possessing a gun would seem a no-brainer in light of daily headlines of gun massacres, homicides and suicides and the rate women and children are murdered when there is a gun in the home.
And yet, in oral arguments of United States v. Rahimi, Justice Clarence Thomas actually questioned whether it is justified to bar a violent offender from possessing a gun in order to protect women because – you know – 2023 America must be constrained within the historic context of 1791. Thomas used the same reasoning to overturn New York State’s century-old gun control law.
And the extreme radicals used the same “reasoning” (excuse) in Dobbs to overturn the 50-year Constitutional right women had to make their own reproductive health decisions under Roe v. Wade, because the Founders did not explicitly give women reproductive health rights in the Constitution, nor is “abortion” actually cited in the Constitution. Due process (14th), unreasonable search (that is “privacy: 4th), equal protection (14th), and “neither slavery nor involuntary servitude” (13th) be damned. (See Propublica.org: The Supreme Court Will Decide if Domestic Abuse Orders Can Bar People From Having Guns. Lives Could Be at Stake)
You know what else isn’t in the Constitution? An individual right to possess a “gun.” “Gun “is not mentioned anywhere in the Constitution not even in that most sacrosanct 2nd Amendment – “arms” and a ‘well regulated militia” are mentioned at a time when “arms” meant weapon (sword, bow-and-arrow, cannon), and the most lethal “firearm” (not mentioned) was a musket.
And if you are insistent on “historic context” to justify anti-democratic rulings, the Constitution doesn’t grant women (or those unborn children) any rights at all. Instead, the 1791 Constitution was written by white male propertyowners to protect the rights of white male propertyowners.
In fact, up until 1900, a man could rape or beat his wife to death, murder his child with impunity, because they were considered property.
As Justice Ketanji Brown Jackson chided, “Which history and which tradition?” 1791? 1866? 1919?
“The Roberts court’s commitment to history and tradition leads inexorably to what one of us (Ms. Murray) has termed a “jurisprudence of masculinity” — a body of decisions that reflect a constitutional order made with men in mind. But this vision is notable in its disregard of other constitutional values, including women’s equality and equal citizenship,” write Melissa Murray and Kate Shaw in the New York Times, “The Conservative Supreme Court Vision That Means Inequality for Women.”
The Court’s right-wing majority decisions going back to Bush v. Gore (2000), Citizens United (2010), Shelby, Dobbs, Bruen are aimed at reversing all the progress toward a “more perfect union” – unwinding voting rights, free and fair elections, women’s rights, the right to be free of fear from gun violence, using what they call “history and tradition”, even when those decisions actually contradict “history and tradition.” As Justice Jackson said, “which history and which tradition?” 1791? 1866? 1919?
But you know what else isn’t in the Constitution? The Supreme Court’s power or authority to declare legislative and executive acts unconstitutional (“judicial review”). That came in 1803 (Marbury v. Madison). So, if Thomas, Alito et al are insistent on “strict originalism,” “what existed at the time of the founding” and what was in the mind of the Founders, who they apparently believe were infallible, omniscient and godly (like the Pope), they have no right to overturn Roe, gun control, voting rights, environmental and consumer protection, affirmative action, end Social Security and Medicare, privatize the Post Office, erase regulation of business, and constrain Democratic presidents’ authority while endowing Republican presidents like George W. Bush and Donald Trump with autocratic powers of a “Unitary Executive.” (See: How the Billionaire Corruption of SCOTUS Could End Social Security — and America)
The Supremes have taken upon themselves the aura of being the only entity in American government inoculated against “checks and balances” or oversight. And that has to end.
And now it turns out that it isn’t so much principle as personal profit that infects their decision-making – outright “gifts,” “perks” and other items of value, but also buying one-on-one access to lobby and shape their legal “point of view.”
Propublica.org and others have now documented millions of dollars from billionaire donors including Harlan Crow and Leonard Leo funneled to Clarence and Ginni Thomas, Alito, and Gorsuch (Leo has spent $53 million to reshape the judiciary to his purpose and has a slush fund of $1.6 billion), with the Supremes basically declaring themselves above scrutiny and ethics that govern every other judge and elected official.
Thomas was among the Justices that tossed out over a century of campaign finance rules meant to at least the common man a fighting chance in getting policy enacted, in the radical Citizens United decision of 2010, which established cash as free speech and opened the floodgates to billionaires and corporations to literally buy politicians and policies and judges themselves (Leo has spent $53 million to reshape the courts). “Money Talks” and it’s not only that they paid the ticket to bring the Justice to the dance, but they monopolize their dance card.
Severely tarnished by a mixture of corruption, conflict of interest and decisions that point to a judiciary that has taken upon itself monarchal authority to reshape society to its desired image, the Court has lost the respect in the legitimacy of its decisions that can only serve to further undermine the Rule of Law and the belief in equal justice that is the cornerstone of democracy. Just look at the Alabama Republican Legislature ignoring the Supreme Court’s decision on its gerrymandered redistricting and Ohio’s Republican Legislature ignoring the majority approval of state constitutional protections of reproductive healthcare rights.
There are now widespread calls to reform the court:
Expand the Court to 13 Justices. The court (which has been changed in size seven times in the past) should be expanded to 13 (matching the number of district courts to reflect increases in population and cases). But since there should also be more requirements to recuse, have nine randomly picked to sit on any case. This would restore balance to the court that has literally been packed by Conservative presidents who did not win the popular vote and by then Senate Majority Leader Mitch McConnell.
End Lifetime Appointments. If you want to go back to 1791, realize that “lifetime” rarely exceeded age 65 and of the 121 justices who have served, the average tenure was 16 years. Justices should be limited to a term of, say, 18 years, with the terms expiring so that each President would make the same number of appointments each term, “reducing partisan gamesmanship and making the Court more democratically representative and help depoliticize the Court,” writes DemandProgress.org.
Ethics Code: Supreme Court Justices should at least be under the same ethics code as every other judge and because they wield so much more power over people’s lives, they should be that much more “influence free.” A proposed Supreme Court Ethics, Recusal and Transparency (SCERT) Act would require rigorous disclosure of gifts, travel and outside income and funding for friend-of-the-court briefs, strengthen recusal requirements and enact a process for investigating a Justice’s misconduct.
And, to counter Alito’s hissy fit that Congress has no authority over the Supreme Court (he should read Article III, Section I. In fact, “for 101 years, the Supreme Court as an institution was a creature of Congress – its docket was controlled by Congress. Congress dictated what the Court did – used power to intimidate,” said Steve Vladeck, author of "The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic" and professor of law at the University of Texas at Austin, on NPR’s “Throughline.”
Add Judges to Lower Courts because the vast majority of cases in the US are heard at the district and circuit court levels and Right now, there are too few judges and too many cases, which means people have to wait far too long for cases to be heard,” DemandProgress.org writes. “Dramatically expanding the number of judgeships will make the judiciary more efficient and more effective and will present an opportunity to increase diversity in the judiciary.” (See: https://demandjustice.org/priorities/supreme-court-reform/)
Finally: No single federal judge (in any court) should have the power to make a ruling that applies to the nation – like the Amarillo, Texas US District Judge Matthew Kacsmaryk, whose decision effectively ruled medication abortion illegal everywhere and overturned the FDA’s authority to approve drugs.
[Just as we were publishing this, it was reported that the Supreme Court has agreed to abide by its own Code of Ethics, but it is wholly inadequate. It is a salve, aimed at pacifying the Senate Judiciary Committee and derailing any real oversight or accountability.]
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