Justice delayed.
February 9, 2022
[Audio version here]
The Supreme Court has turned the world upside down. In two recent cases, the Court has allowed blatant violations of the Constitution to remain in place, saying that it will consider the merits of those cases in the fullness of time. But in each instance, the Court actively reached out to overturn rulings by lower courts that had considered the merits of the cases and were prepared to immediately enjoin the constitutional violations. The Court’s ultraconservative majority overturned the lower court rulings because they know that justice delayed is justice denied.
In the first instance, Texas designed an anti-abortion statute for the express purpose of violating the Supreme Court precedent of Roe v. Wade (and progeny)—precedent that remains the law of the land today. The right-wing majority employed judicial gymnastics to allow a purposefully illegal statute to remain in effect until the cases work their way back to the Supreme Court through the appellate process—which will take a year (or more). Chief Justice Roberts wrote in his dissent that allowing the law to remain in place “has the effect of denying the exercise of [a]right protected under the Federal Constitution.”
In the second instance, a three-judge panel concluded that Alabama’s redistricting map likely violated the Voting Rights Act against discrimination based on race and ordered the legislature to re-draw the map to include a second district with a majority Black population. The three-judge panel issued a 275-page opinion that detailed its findings and rationale for issuing an injunction. Last Friday, the conservative majority overturned the ruling of the three-judge panel, thereby allowing racially gerrymandered districts to remain in effect until 2024. Justice Kavanaugh justified that decision (in part) by stating that it was necessary to “allow this Court to decide the merits in an orderly fashion—after full briefing, oral argument, and our usual extensive internal deliberations.” In other words, Justice Kavanaugh placed the Court’s leisurely work ethic above the disenfranchisement of hundreds of thousands of Black voters in Alabama.
I hate it when commentators tell me that a particular development deserves more attention and a bigger reaction, but I will tell you the same thing about these rulings. The reactionary majority is a willing participant in the intentionally illegal conduct of the Texas and Alabama legislatures. As a result, nine states (and counting) have passed laws effectively banning abortion, and GOP-controlled state legislatures have been given the green light to employ racial gerrymandering for at least one election cycle. The Court’s legitimacy has collapsed as it has become a captive of the Federalist Society and the evangelical wing of the GOP.
Democrats have the power today to expand the Court and break the death grip of the MAGA majority on our Constitution. All it takes to expand the court is to limit the filibuster (by a majority vote) and pass a law to increase the size of the Supreme Court (by a majority vote). Expanding our margins of control in the House and Senate will make that job easier, but there is no reason not to do so now. Jessica Craven at Chop Wood, Carry Water has started a Resistbot letter-writing campaign to urge our Senators to expand the Court. Text SIGN PLADGA to 50409. It’s easy and fast (but because it generates real letters to your Senators, if it is your first time using Resistbot, you will need to provide address information). The effort may not succeed, but if we can start a serious discussion in the Senate about expanding the Court, the right-wing majority may be chastened and deterred.
RNC and Trump wreak havoc in GOP.
The GOP is a house divided over recent statements by the Republican National Committee, Trump, and Mike Pence. In short, the RNC declared that the January 6th insurrection was “legitimate political discourse,” and Trump declared that Mike Pence could have and should have “overturned” the election on January 6th. Mike Pence responded by saying that “Trump is wrong.” Those events provoked a backlash from some GOP leaders, while most members are scurrying like rodents on a capsizing ship, looking for an offramp that does not exist.
Mitch McConnell said on Tuesday that the January 6th insurrection was a “violent insurrection” and that the RNC was wrong to censure Cheney and Kinzinger. NYTimes, McConnell Denounces RNC Censure of Jan. 6 Panel Members. As to the violence on January 6th, McConnell did not mince words:
We saw it happen. It was a violent insurrection for the purpose of trying to prevent the peaceful transfer of power after a legitimately certified election, from one administration to the next. That’s what it was.
Senator Josh Hawley—white supremacist sympathizer and leader of the coup attempt in the Senate—dissed Mitch McConnell, saying,
Whatever you think about the RNC vote, it reflects the view of most Republican voters. In my state, it’s not helpful to have a bunch of DC Republicans commenting on the RNC.
Hmm. . . so the Senators from Kentucky, Alaska, and Utah are “DC Republicans?” If you say so, Josh. No one believes anything you say, anyway.
Worst of all is the cringe-inducing spectacle of spineless politicians like Senator Marco Rubio, Governor Ron DeSantis, and Rep. Kevin McCarthy squirming to avoid choosing sides in the debate over democracy versus insurrection.
Why this matters: Some Democrats have talked themselves into believing that the GOP is a juggernaut that will roll over Democrats in 2022. Not true! While we should take the GOP threat very seriously, we should recognize that the Republican Party is at war with itself—and it is only going to get worse. Much. Trump has been challenged by Pence, McConnell, Murkowski, and others. He knows only one way to deal with a challenge: to lash out in destructive fury against anyone he perceives as an enemy. Trump will continue to roil the GOP through 2022.
The GOP’s infighting is not a cause for celebration on our part—but it is a strategic opening that we must exploit to maximum advantage. As Republicans argue in public over whether they are for or against democracy, Democrats should focus on their ground game and the needs of the American people. That is a winning strategy.
President Biden condemns Florida’s “Don’t say gay” bill. You should too.
Florida’s Republicans have the votes to pass a bill that will prohibit discussion of gender identity or sexuality in primary grades. Ron DeSantis supports the legislation. The proposed bill would prohibit schools from
encouraging discussion about sexual orientation or gender identity in primary grade levels or in a manner that is not age-appropriate or developmentally appropriate for students.
The language above has been drafted to make the prohibition as bland as possible. After all, who doesn’t support teaching primary school students in a way that is “age‑appropriate and developmentally appropriate”? But that is precisely why the statute is pernicious. Every school strives to teach every subject in a way that is “age-appropriate and developmentally appropriate.” Why, then, is it necessary to target discussion of sexual orientation and gender identity with a statute that allows parents to sue teachers and recover attorney’s fees if successful? By singling out discussion of sexual orientation and gender identity for special punishment, Florida Republicans are sending a message that there is something “wrong” about those subjects—and by implication, something “wrong” about LGBTQ+ people.
The dark history of singling out people because of their race, sexual orientation, or religious affiliation teaches us that we must resist every effort to begin branding people as “different” or “abnormal” or “less than” because of their human identities. Some readers complain to me that Democrats must move away from “identity politics.” It is not Democrats who are making “identity” an issue. It is Republicans who are punishing people based on their human identity. If defending those under attack by Republicans is “identity politics,” we need more of it, not less.
President Biden rose to the defense of LGBTQ+ people in condemning the proposed law. He tweeted,
I want every member of the LGBTQI+ community — especially the kids who will be impacted by this hateful bill — to know that you are loved and accepted just as you are.
It is already difficult enough for LGBTQ+ young people to deal with the process of growing up in a world that treats them differently. The Florida law will be another negative signal to them. We should all follow Joe Biden’s example by making clear that they are accepted just as they are. Let’s show them by example that the adults in their lives will do all they can to stop hateful legislation like Florida’s HB 1557.
Concluding Thoughts.
Reader Jim Shelton is a member of 31st Street Swing Left. He sent a link to an article he wrote that was published in The Daily Kos, Build Election Campaign Infrastructure Now: Think State Democratic Parties. Jim’s article is a masterful articulation of why supporting state Democratic parties now is critically important to success in 2022. If you lead a group that is dedicated to winning in 2022, I highly recommend Jim’s explanation of why early support of state parties is critical.
Although I can’t do Jim’s article justice in this newsletter, the main point is that state parties are underfunded when they need the money most (to build infrastructure) and overfunded when it is more difficult to invest money effectively (in the last weeks of the campaign). Jim explains why 31st Street Swing Left has joined forces with the State Party Advancement Network (SPAN). SPAN represents “a community of donors committed to working together to build strong and effective state parties.” Check out details in the article and at 31st Street Swing Left 2022 Strategy. Also, I interviewed Jim Shelton on January 2nd on Today’s Edition Podcast, Interview with 31st Street Swing Left.
What 31st Street Swing Left has done is impressive. But it is only one of the thousands of grassroots organizations that emerged in the aftermath of Trump’s accidental victory. The very existence of those grassroots organizations should give us confidence and hope. After two successful election cycles, those organizations are battle-tested, effective, and passionate. There are boundless opportunities to become involved. Now is the time to do so, while we still have plenty of opportunities to affect the outcome in 2022.
Talk to you tomorrow!
Reproductive rights and freedom is guaranteed to women by the U.S. Constitution and affirmed multiple times by Supreme Court decisions. The right to have equal access to the ballot box regardless of your race, physical capabilities, or where you reside is also guaranteed by the U.S. Constitution and the Voting Rights Act of 1965. These are facts not judgements. Now, one may hold different personal views on those issues and even speak out publicly on those alternative views, that too is a right guaranteed by our U.S. Constitutions first amendment. However, that does not permit one to deny those rights to another person. This is the fundamental error in these recent SCOTUS decisions overruling lower court decisions. These SCOTUS decisions effectively say, “I disagree with rights guaranteed to you under our Constitution and your judgement on how to exercise them and therefore choose to deny you those rights.” That is both morally and legally wrong. This is not the proscribed role in our Constitution or representative democracy for the Supreme Court.
Robert, Because I am deeply troubled by the High Court’s methodical evisceration of precedent, of federal safeguards that I don’t imagine will end either with the Court allowing the Texas anti-abortion statute to remain in effect or with the reinstatement of Alabama’s racially gerrymandered voting map, I, too, submit that we ensue serious discussion about expanding the Court, despite said effort possibly not succeeding.
Here I would note, some time back, that Robert Reich had suggested a promising precedent for expanding the Court. My understanding is that in 1789 five Justices and one Chief Justice were seated, each of whom presided over one of the six Federal Circuit Courts. Today, because there are thirteen Federal Circuit Courts, over which only nine Justices preside, I imagine the High Court accepts fewer cases.
Though, admittedly, my knowledge here is somewhat limited, I suspect invoking precedent both to expand the High Court and possibly add Judges to the Lower Courts is far more persuasive than basing one’s argument solely on the need to balance the Court.
Notwithstanding the foregoing, because we need Congress to expand the Court, as you stated, Senate Democrats, by a majority vote, would have to modify the filibuster—a major hurdle, to say the least. Still, I agree we need to press for a serious discussion in the Senate about increasing the size of the Court, if for no other reason than the certainty that our current battles, as troubling as they are, are but a piece of a more widespread effort to dismantle precedent and federal safeguards.