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A Little Something to Keep You Up at Night

The Nightmare — 1781

The Washington Post’s Ruth Marcus analyzes the living nightmare we are confronting with this extremist Supreme Court. Mitch McConnell’s legacy achievement will have the greatest effect on Americans’ lives of any Republican of the last century. He can die happy:

A six-justicemajority, such as the one now firmly in control, is the judicial equivalent of the monarchy’s “heir and a spare.” The pathways to victory are enlarged. The overall impact is far greater than the single-digit difference suggests.

On the current court, each conservative justice enjoys the prospect of being able to corral four colleagues, if not all five, in support of his or her beliefs, point of view or pet projects, whether that is outlawing affirmative action, ending constitutional protection for abortion, exalting religious liberty over all other rights or restraining the power of government agencies.

A six-justice majority is emboldened rather than hesitant; so, too, are the conservative advocates who appear before it. Such a court doesn’t need to trim its sails, hedge its language, or abide by legal niceties if it seems more convenient to dispense with them.

A conservative justice wary of providing a fifth vote for a controversial position can take comfort in the thought that now there are six; there is strength in that number. Meantime, a court with a six-justice majority is one in which the justices on the other side of the ideological spectrum are effectively consigned to a perpetual minority. They craft dissents that may serve as rebukes for the ages but do little to achieve change in the present. The most they can manage is damage control, and that only rarely.

That is the reality — exhilarating for conservatives, chilling for liberals — as the court, with a membership that has not been this conservative since the 1930s, embarks on what could be its most consequential term in decades. The October 2021 term is the first with six conservatives in place from Day One; the newest, Amy Coney Barrett, was not confirmed until several weeks into the court’s previous term, and the first year for any new justice tends to be a time of settling in.

Now, Chief Justice John G. Roberts Jr., who occupies what passes for this court’s center, holds the reins but is no longer firmly in control of his horses. Some of his most conservative justices are champing at the bit. Sometimes he can curb them, but not always; sometimes he is delighted to head in the same direction. And if any five agree, they can go galloping off anywhere they choose. If Roberts isn’t with them, the court’s most conservative member, Justice Clarence Thomas, has the power to assign the majority opinion or write it himself.

“The difference between six and five is exponential,” said Mike Davis, president of the Article III Project, which worked to confirm conservative judges during the Trump years. “With five justices to the chief’s right, they no longer need to compromise with the chief to win. And this means it is much more likely that the court is going to get to the conservative result most of the time.”

The justices have defied some earlier liberal predictions of catastrophe, but there’s reason to believe this term may be different — and if not this term, then one not far off.

[…]

The following is what stuns me. How can we call ourselves a democracy? This Court revolution is taking place at a time when the Republicans have won the popular vote only once in the last 30 years:

Republican appointees have been in a majority on the court and at its helm for half a century, since President Richard M. Nixon named Warren E. Burger to be chief justice in 1969, after Earl Warren’s retirement. Nixon had the remarkable good fortune tobe able to fill three additional seats in the next two years: Justices Harry A. Blackmun, Lewis F. Powell Jr. and William H. Rehnquist, who would eventually succeed Burger as chief justice.

The luck of Republican presidents held. From Gerald R. Ford until Donald Trump’s election in 2016, Republicans controlled the White House for 23 years and named nine justices. Democrats were in the presidency for 20 years, nearly as long, but had just four justices confirmed. By 1991, when Clarence Thomas replaced Thurgood Marshall, only one justice nominated by a Democratic president remained on the court, Kennedy appointee Byron R. White, and he was no reliable liberal.

Even so, the Republican-dominated high court failed to produce consistently conservative rulings. A book of essays on the Burger court bore the subtitle, “The counter-revolution that wasn’t.” Over the following decades, certainly,the court moved steadily and at times sharply to the right, limiting the power of the federal government against the states, reducing criminal defendants’ ability to seek redress in federal court, lowering the wall of separation between church and state, hobbling efforts to regulate money in politics, dismantling protection for voting rights and declaring that the Constitution protects an individual right to bear arms.

Still, the court, despite dire predictions to the contrary, protected and reaffirmed abortion rights. It cut back on affirmative action but did not eliminate it. Rehnquist himself, who repeatedly expressed his disdain forMiranda, the 1966 decision protecting the rights of suspects in custody, voted as chief justice to reaffirm the ruling. Having found in 1986 that it was constitutional for states to criminally prosecute private homosexual conduct, the court, in the span of a dozen years from 2003 to 2015, reversed itself on that question, overturned the Defense of Marriage Act protecting states from having to recognize same-sex unions and, finally, declared the existence of a constitutional right to same-sex marriage.

Yet over time, and under the tutelage of the conservative Federalist Society, Republican presidents, beginning with George W. Bush and intensifying with Trump, became better at picking reliablyconservative justices. There were to be no more David Souters, who turned out to be a solid liberal vote; no more Sandra Day O’Connors, whose background as an Arizona state legislator often inclined her to compromise; no more Anthony M. Kennedys, the pale-pastel conservative named to the court after Ronald Reagan’s first choice, Robert H. Bork, was resoundingly defeated.

Future justices would have judicial paper trails to provide assurance of their conservative bona fides on everything from explosive social issues to government regulation, a topic important to legal conservatives and their financial backers. And so the post-Rehnquist years produced the Roberts court, adding not only the chief justice but also Samuel A. Alito Jr. and, with Trump’s election and Senate Majority Leader Mitch McConnell’s (R-Ky.) stage-managing, three new conservative justices: Neil M. Gorsuch, Brett M. Kavanaugh and Barrett.

“It’s not like it was this moderate court and Trump made it conservative,” said Elizabeth Wydra, president of the progressive Constitutional Accountability Center. “It was a conservative court and Trump made it extremely conservative.”

McConnell’s role cannot be overstated. The sudden death of Justice Antonin Scalia in February 2016 offered liberals a glimpse of a court reshaped, with President Barack Obama poised to appoint a justice to join the four liberals: Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. “When we lost Justice Scalia … it looked like we were fated to lose even more,” then-Federalist Society Executive Vice President Leonard Leo recalled in a speech the next year. “It seemed the court would once and for all become the instrument of the progressive liberal agenda. In one of history’s sharper turns, however, that proved not to be so inevitable after all.”

McConnell’s audacious stonewalling of Merrick Garland’s nomination, with 10 months remaining in Obama’s term, eliminated Leo’s worries; McConnell’s sprint to confirm Barrett after Ginsburg’s death, scarcely seven weeks before the 2020 election, cemented the conservative takeover.

The Rule of Six was about to commence.

Mitch McConnell eliminated the filibuster for Supreme Court justices, stole one Supreme Court seat and then rushed another one through in the final 6 weeks of a presidential campaign. This is on him.

Do not mistake today’s lineupfor a 3-3-3 court — three conservatives, three moderates, three liberals. There are three extremely conservative, extremely impatient justices — Thomas, Alito and Gorsuch — who would go to extraordinary lengths to undo some of the most entrenched constitutional doctrine. Thomas, for instance, has called for revisiting New York Times v. Sullivan, the landmark press freedom case that provides a shield against libel suits brought by public officials; in an enterprise later joined by Gorsuch, Thomas termed New York Times and subsequent cases “policy-driven decisions masquerading as constitutional law.” Again joined by Gorsuch, he has questioned Gideon v. Wainwright, which guaranteed a right to appointed counsel for those who cannot afford to hire their own lawyers. He has said the Constitution does not prohibit states from establishing an official religion.

But even the more patient justices — Roberts, sometimes Kavanaugh, and, at least judging from her first year, Barrett — are no moderates. All three, for instance, joined a particularly radical Alito opinion last term that neutered the remaining major enforcement mechanism in the Voting Rights Act of 1965. “I dislike the fact that journalists refer to the six as conservative,” said Harvard Law School professor Charles Fried, who served as solicitor general under Reagan. “They’re not. They’re reactionaries. That’s the only correct term for them.”

Marcus runs down the 2018 and 2019 terms which she characterizes as “The Roberts Court” — conservative but not radical. Well, those days are gone. In just the few months of the new court majority we’ve seen an extreme turn to the right in explicitly partisan terms. Marcus goes into great detail about the “shadow docket” (and the conservative hypocrisy involved in its use) and especially the hardcore partisan majority’s ruling on voting rights.

It’s enough to make you sick. And they are not finished by a long shot.

[…]

before the 2020-2021 term had drawn to a close, the court set the stage for the potentially watershed term now underway.

After years of dawdling and ducking, the court agreed in April to decide its first significant gun rights case in a decade, clarifying the scope of its 2008 decision that the Second Amendment protects an individual right to bear arms. The next month, the court agreed to review an abortion law, although the case satisfied none of the usual criteria for review: There was no split in the circuits, no conflict “with relevant decisions of this court,” no unsettled question of federal law.

Before leaving for the summer recess, the court added a religion case to its docket that could remove another cornerstone in the separation of church and state. The case comes from Maine, where some areas of the state are so rural there are no public schools; the state instead offers tuition vouchers to attend public schools in other areas or private institutions. Does the Constitution require — not just allow, but require — Maine to make these vouchers available to religious schools, for explicitly religious instruction? The likely answer from this court seems obvious.

Meantime, other high-profile disputes appear headed to the court. Can Trump successfully claim executive privilege to stop the release of documents or prevent former aides from testifying before the House select committee investigating Jan. 6? Is Biden’s vaccine-and-testing mandate for private employers legal? Must states with vaccine mandates provide religious exemptions?

Marcus looks at the polls showing the Court is suffering unprecedented disapproval by a majority of the country and suggests that may have been why Breyer, Alito and Barrett all gave speeches in recent weeks insisting that the Court is anything but partisan. And she looks at the conservatives’ apparent jaundiced view of the Texas abortion law, most likely only because they realize that the legal reasoning that underlies it makes them irrelevant and empowers liberal states to enact similar laws to curb gun rights and religious “freedom” laws that they value.

Conservative lawyers were none too pleased with the squishiness they heard. “The Warren Court Lives?!?” read the headline on a National Review piece by legalblogger Ed Whelan.

Yeah, no:

The new, radicalized court revealed itself earlier this year, when it agreed to review Mississippi’s abortion law prohibiting abortion after 15 weeks. To be sure, 15 weeks was just a step along the way for Mississippi; the state had already enacted another measure, blocked in court, that would bar abortions after six weeks, and it had one prohibiting almost all abortions waiting in the wings if Roe were overturned.

In June 2020, when Mississippi first asked the court to hear the case — a court with Ginsburg still alive — it took pains to assure the justices this was no head-on challenge: “To be clear, the questions presented in this petition do not require the Court to overturn Roe or Casey,” the state’s petition said. The latter referred to the 1992 case, Planned Parenthood of Southeastern Pennsylvania v. Casey, in which the court had reaffirmed the right to abortion.

A year later, with the case accepted for review, Ginsburg dead and Barrett in her seat, Mississippi decided to go for broke. Its new brief dispensed with the fiction that the Mississippi ban could be upheld with a bit of tinkering around the edges. “Nothing in constitutional text, structure, history, or tradition supports a right to abortion,” the state argued. “Overruling Roe and Casey makes resolution of this case straightforward.” A single footnote raising that prospect became almost the entire brief.

This was a bold, and potentially risky, gambit. It was a safe bet that the six conservative justices were no fans of Roe and would never have signed on to a finding that the Constitution includes a right to abortion. Three were all but guaranteed votes for overruling.

But were Roberts, Kavanaugh and Barrett — or any two of those three — preparedto take the momentous step of abandoning a 50-year-old precedent, one that had been reaffirmed time after time? That was less clear, especially after confirmation hearings in which Kavanaugh pledged that he considered Roe “an important precedent of the Supreme Court” and Sen. Susan Collins (R-Maine) had pronounced herself convinced that Kavanaugh would not vote to overrule it.

Pushing the court to take a step it hadn’t agreed to consider — indeed, that Mississippi had at first assured was entirely unnecessary — posed a danger of backfiring. The justices, if they are annoyed by this bait-and-switch, have the power to dismiss the case as “improvidently granted” — to “DIG” it, in the parlance of the court. The Biden administration, in its brief, suggested the justices do precisely that. Mississippi has “now dramatically changed course, devoting their merits brief to a frontal assault on Roe and the fifty years of precedent reaffirming its central holding. The Court has previously declined to indulge such tactics,” it argued.

There is no indication they are inclined to do that.

The more probable course is that the court will proceed to decide the case, Dobbs v. Jackson Women’s Health Organization, and to uphold the 15-week ban. But how? Will it overrule Roe outright or do so,as the court says, “sub silentio,” eviscerating the right, and setting the stage for future cutbacks, without explicitly acknowledging what it isdoing?

That underlines the difficulty presented for abortion rights advocatesby Mississippi’s audacious strategy. If the court now stops short of explicit overruling, the public might conclude the justices have taken a restrained, middle-ground approach. But it’s hard to imagine a decision that stops at 15 weeks. If the court upholds the Mississippi law, there’s no logical stopping point.

Marcus explains the legal tangle the Justices are in with this proposed 15 week ban, and how upholding it will create massive uncertainty in the states.

In short, the court is on the brink of a mess — doctrinal, practical and political — and it’s hard to see how it is going to extricate itself. Overruling Roe would get the court largely out of the abortion-deciding business, but it would create a political firestorm, just before the midterm elections. Upholding the law without taking that explicit step would invite more states to enact ever more aggressive restrictions — without any clear standard for judging them.

The correct answer would be for the court to apply its existing precedents and declare flatly that pre-viability prohibitions are unconstitutional. It is all but impossible to imagine five votes on this court for taking that sensible step.

Guns are next.And wait until you see the meat ax they are planning to take to the ability of the government to enact regulations:

What could be the sleeper case of the term concerns the Environmental Protection Agency’s power to combat climate change. That’s an important topic, but the case is even more significant, as a measure of the court’s eagerness to roll back the power of regulatory agencies.

In recent years, conservative justices have been pressing numerous changes in this area: reviving pre-New Deal limits on Congress’s ability to delegate its power to agencies; empowering courts to second-guess agencies’ decisions rather than defer to their expertise; strengthening presidential control over independent agencies.

Taken together, these initiatives could achieve what Trump adviser Stephen K. Bannon described as the “deconstruction of the administrative state” — at the very time that legislative gridlock makes it hard for Congress to step in to address urgent issues itself or clarify regulators’ authority to act.

The court once again took the extremist position, agreeing to hear a case that is moot just so they could have the chance to enact Bannon’s vision for America.

Marcus notes that conservatives insist that the Court is disappointing them and wring their hands that in the first few months the court hasn’t turned back the clock to 1800. That’s a joke. For all the caterwauling about liberal activist groups hectoring the Democrats to do things that make them unpopular, they are amateurs compared to the right wingers.

Marcus reluctantly concludes that the liberals have the much better argument for hand wringing. (No kidding.)

[F]or those who believe the court has a vital role to play in protecting democracy, promoting civil rights and achieving justice, “the outlook is not good at all,” said Donald B. Verrilli Jr., who served as solicitor general in the Obama administration. “Things may unfold more slowly or less completely than our worst fears. But I think most of our worst fears are going to be realized. It’s just a question of at what pace.”

Marcus throws up her hands and says there’s nothing to be done. She says that court packing is the worst thing in the world (doesn’t explain why) and that term limits are “hard to administer” and wouldn’t be in effect for years. So basically, they won, we lost and the country is going to hell in a handbasket.

This was one of the main reasons I took to my bed for a week after Trump won in 2016. We all knew this would enable the wingnuts to take advantage of McConnell’s unethical gambit and preserve the ultra conservative majority for decades. Replacing Scalia with a sane person was our last chance.

Yes, it’s worse that there’s a six seat majority than a five seat majority but it’s on the margins. Five seats with Gorsuch, Alito and Thomas formed the hardcore bloc and there was every reason to believe that Kennedy would retire under a GOP president so they could put a real extremist on the court. Replacing Ginsburg with Barret was just icing on the cake. They already had everything they needed to foment a legal revolution. Now, even if Thomas goes, there are five younger whippersnappers to keep the flame burning.

This is McConnell’s doing, working hand in hand with the Federalist Society, not Trump’s. The GOP’s most elite establishment figures have brought us here. And it’s going to be bad, very bad.

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