About a decade ago a friend of mine was complaining on Facebook about some fundamental flaw in our democracy. I don’t remember the exact complaint. It could have been about a new Republican majority in the U.S. Senate, which represented just a minority of total voters in the country.
It could have been the electoral college, which is so skewed that a vote for president in a small state carries more power than a vote in a state with a larger population.
It could have been about gerrymandering.
Whatever it was, it was a flaw that was baked into the Constitution. As such, it was one we could not easily get rid of, as the people who would need to change it are the exact people who benefit from the flaw.
My comment on my friend’s post was, “Well, perhaps we can change that as we rebuild after America’s holocaust.”
Another friend of hers, whom I didn’t know, answered, “America’s holocaust?”
Clearly, she thought I was crazy.
When Trump was elected in 2016, I went back to find that exchange. My friend didn’t remember it and Facebook’s search capacity isn’t very refined.
At the time I wrote that quip, in the days of the Obama Administration, I saw the rebuilding of America as a noble endeavor to right the wrongs of the origins of our country, after a sad and bloody battle for its soul.
I didn’t think of what it would be like to live through that sad and bloody battle.
But here we are.
And it’s likely to get worse.
We Are Focusing On the Wrong Debate
Thursday night, as President Biden stood stiffly, spoke softly and lost his train of thought in the opening minutes of his debate with Donald Trump, I felt the overwhelming proximity of that battle. All I could do - in texts to friends, in phone conversations with family, as I walked around the house - was shout FUCK over and over and over again.
I honestly thought for a moment that we were watching a man having a stroke on live TV.
I honestly thought we were watching the ONE MAN who we are counting on to save our democracy having a stroke on live TV. And I began to internalize that America’s holocaust was closer than I had allowed myself to believe.
The next morning, I realized my attention had been misdirected, as the news of the Supreme Court ruling overturning Chevron deference came out. Chevron was the SCOTUS decision from 1984 that crystalized the practice of the administrative state - that is, government agencies making rules based on the laws Congress passes.
That practice has been part of American government since our founding, when the Department of Foreign Affairs was put in place. It ramped up after the Civil War, at the start of which Abraham Lincoln not only had to contend with Southern secessionists, but he and his Secretary of State, William Seward, had to personally interview and hire many of the people who wanted to work in his administration.
As Erik Larson writes in “The Demon of Unrest,” about those months between Lincoln’s election and inauguration, “A good portion of [their] time was spent parrying the crush of office seekers.”
Now, the Supreme Court has turned back the clock, and made the courts the arbiter of which rules the Department of Education can make, which rules the Securities and Exchange Commission can make, which rules Homeland Security can make. Which rules any government agency can make.
These are rules that keep our water clean and drinkable, that keep our food from poisoning us, that ensure that people are treated fairly in the workplace, or in public accommodation. These are rules that we do not see, but that have a tremendous impact on our lives.
And they are gone. Anyone with enough money can sue to get the rules that are in place modified. Instead of having experts in the field of airline safety or public health or education making those decisions, the courts will.
This is an open invitation to people with money, or states that disagree with regulations, to sue to abolish all sorts of agency decisions.
Which is exactly what happened in another ruling that came out this week, Ohio v. EPA, which argued that the EPA’s model of regulating emissions harmed Ohio.
Just to prove irony is not dead, in his majority opinion on Ohio, Justice Gorsuch mixed up the terms “nitrogen oxides” - which are ozone-forming emissions from power plants that can be carried by the wind to neighboring states or countries - and “nitrous oxide” - which is laughing gas.
Seriously, in multiple places in this opinion by the son of a woman who was fired from leading the EPA after she tried to destroy it from within, we see the words “nitrous oxide” to refer to the EPA rule.
As of Friday afternoon, the Court announced it was putting out a corrected ruling. The fact remains, though, that in setting itself up as the arbiter of which federal agency rules are fair and which are not, the Court inadvertently proved their incompetence to arbitrate rules for anything other than the law.
Of course, the Supreme Court has been hollowing out laws since 2011, when they neutered the McCain/Feingold campaign finance law, ruling in Citizens United that corporations are people and people could anonymously give unlimited amounts of money to get politicians elected.
That didn’t help Putin at all.
Just in case we thought that was a one-off, in 2013 SCOTUS began the gutting of the Voting Rights Act - from the 1960s - in Shelby County v Holder. They ruled that Congress had to update the VRA with current examples of racism in order for federal oversight of states’ voting rules to continue.
They knew at the time that Congress was incapable of acting. Precisely because of the Great Compromise of 1787, which allows two Senators per state rather than Senate and House members based on the state’s population.
This has been the conservative playbook since 1994 - use chaos to neuter Congress, then stack the Supreme Court with conservatives who will enact their will under the guise of “Congress needs to fix this.”
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What are You Stare(ing) At, Decisis?
What scares me more than specific decisions from this Court is that SCOTUS has obviously decided that precedent is dead. We’ve heard the term stare decisis, which, like federal administrative agencies, has also been a staple of our U.S. system for the last two centuries. The term means that judges should build on the findings of other judges - and especially the Supreme Court - unless they have a good reason not to.
But this Court has been overturning settled law for the last 15 years at least. There was Citizens United and Shelby County. There was Janus, which reversed a ruling from 1977 that required people who work for a public institution represented by a union to join that union. There was the recent Students for Fair Admissions, which decimated affirmative action. There was Dobbs which, of course, overturned the 1973 Supreme Court abortion decision, Roe v Wade.
There is reason to believe that the Court will overturn other precedents, and go after the legality of birth control and IVF.
There is reason to believe that this Supreme Court will overturn Lawrence v Texas, which invalidated sodomy laws - or “gay sex.”
We just celebrated the 9th anniversary of Obergefell, which legalized same sex marriage. That can go as well.
The implications are terrifying.
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Splitting Up Families
Back around the turn of the century, in the halcyon days of American democracy, I was looking to get pregnant, and I wanted to learn from the experience of other lesbian moms. In those days, there weren’t quite as many lesbian couples who had children that weren’t from a former marriage to a man, but I was given the name of one who had gone through the process of artificial insemination.
She gave me a piece of advice that I have never forgotten.
“Go with a sperm bank and not someone you know,” she said. Because someone you know “in 10 years might have a religious revelation with his new wife and sue you for custody.”
When my twins were 16, they got a DNA test for their birthday. They were excited to explore their ancestry. I was terrified. Their DNA would now be on a website, and could easily match with someone else’s DNA. Someone else, perhaps, who had had a religious revelation with his new wife and now regretted donating sperm.
But I figured they were close enough to 18 that a court would not let them be taken away.
Now, if the Supreme Court invalidates Obergefell, and invalidates the legality of the families that come from those marriages, children could be taken away.
These are the kinds of stories we saw a lot of in the 1990s and 2000s.
I knew women whose biggest fear was that their ex-husband would find out they were gay and take their children. I knew children who felt abandoned, who blamed their gay mothers, and not their angry fathers and the homosexist court systems.
This is not ancient history. This is what Christian Nationalists, who have hijacked the conservative movement in the U.S. want to see happen.
Think this is hyperbole? This is a nation that, just a few years ago, separated children - including nursing infants - from their parents because those parents had the temerity to have brown skin and ask for asylum in the U.S.
Consistency vs. Chaos
One of the first things I learned as a new mom is that children love consistency. They need to eat at regular times. They need to have the same bedtime rituals. They need to know they can count on the rhythm of their lives.
Kids who experience trauma often are experiencing a break in that rhythm. The one thing they do know is that they can’t trust their parent to be consistent. Unpredictability is the norm. And this throws them into a state of sustained panic.
We all need consistency. And the state of panic in the American psyche right now is precisely because, in the last eight years, so many of the expectations we’ve had about our leaders, our courts, our democracy have been turned on their heads.
We don’t know what to expect. And that scares us.
Which is why, I think, the freakout among Democrats and pro-democracy non-Democrats was so pronounced after the debate. People may not have loved Joe Biden. But he was always consistent. He was good ole reliable Joe.
Thursday’s debate obliterated that expectation. And that terrifies us.
But I know this. If Biden is elected, our democracy will survive. For now. Even if he dies on January 21, our democracy is in good hands. And perhaps, there will be some pushback on the Supreme Court.
If Trump wins, our democracy is gone. We will be fighting a losing battle. We will be irrevocably marching towards America’s holocaust.
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Judges should be arbiters of the rule of law not doing favors for major corporations. They also should not be reverting everything back to having courts decide science. I’m sick and tired of having someone whose only work history was law decide my health matters, the kind of sex I can have, whether I should be a union member, whether can sue a polluter who dumped chemicals in my water, or whether I meet the religious requirements for something that is really a human right.
SCOTUS is going gang busters bringing eliminating the laws that have protected, supported us and made us whole again. I suppose they’ll continue to legalize bribes and decide if the President can do any damn thing he wants and no one can stop him.
I’m also offended that these Judges have such a short calendar. This session they haven’t had to use their brains much, so I don’t know why they need a major vacation break. I suppose Thomas has an Alaska fishing trip planned, a few secret meetings with the wealthy money-changers, and he probably needs to help the little wife plan the next big insurrection. You can tell he’s my favorite. History won’t be kind this him.