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The Worst Case Scenario

It’s not beyond the realm of possibility

I don’t mean to give you nightmares but no matter how much we may want to ignore how close we are to something very dark, we really shouldn’t.

Mother Jones’s Pema Levy lays out what could happen if the Supreme’s follow the lead of the 5th Circuit. It’s Leonard Leo’s dream:

Imagine Obamacare is dead and millions of Americans have lost health coverage. Abortion is illegal nationwide, pills to end pregnancies are off the market, and doctors wait until the mother’s death is imminent before attempting lifesaving care. Domestic abusers freely carry guns and government attempts to stop untraceable homemade semiautomatic rifles have been quashed, rendering gun licenses and background checks useless. Environmental regulations founder as climate change worsens. With the sidelining of the Securities and Exchange Commission (SEC) and the Consumer Financial Protection Bureau, Wall Street has returned to its greediest days, making bets that threaten economic stability and preying on consumers with predatory loans and hidden fees. Officials are barred from even asking social media platforms to stem disinformation or calls to violence. Police, unrestrained by federal immigration law, round up, detain, and deport suspected immigrants. Washington can no longer fulfill treaty obligations as states erect barriers along US borders, causing international chaos. And organizing a protest against any of the above may result in you being sued successfully, making free speech an expensive proposition.

These are not mere hypotheticals. The 5th Circuit Court of Appeals—transformed by appointees of former President Donald Trump—has issued decisions greenlighting every one of these eventualities. While some were put on ice by the Supreme Court, others remain in effect in Texas, Louisiana, and Mississippi, the three states the circuit covers. In those states, women have no right to end pregnancies that threaten their health, the enforcement powers of dozens of federal agencies are in doubt, and protest organizers are vulnerable to legal retribution. Other 5th Circuit decisions, from a ruling hamstringing the SEC and similar agencies to one legalizing bump stocks—the device that enabled a lone shooter in Las Vegas to kill 60 people and injure more than 500 in just 10 minutes—are now the law of the land. This is neither the outer bounds of what this radical court will do, nor the end of its impact on all Americans. It is the beginning.

These are far right radicals intent upon transforming America into a Christian nationalist, far right, oligarchy. Can we be at all sure that the Supreme Court majority won’t sign off on any or all of those things? I certainly have no confidence in that assumption. Counting on some combination of Federalist Society members Kavanaugh, Barrett and Roberts to band together to stop it just doesn’t seem all that likely to me.

Here’s a reminder of the Federalist Society’s evolution which started as a campus debating society and quickly grew into the most influential group in the American judiciary:

Beginning with Ronald Reagan, the Federalist Society has developed extensive connections with every Republican administration. The organisation and the GOP have created a pipeline to the judiciary, making Federalist Society membership almost a prerequisite to gaining a judicial appointment during periods of Republican control. All six of the Republican-appointed justices currently on the Supreme Court are affiliated with the society, as were nearly all of the federal judges appointed by Trump.

Leonard Leo, the society’s executive vice president, has been perhaps the single most influential person responsible for building the Supreme Court’s conservative majority, having played major roles in the confirmation of all six conservative justices. Leo personally drafted lists of acceptable nominees for each of Trump’s three Supreme Court picks, and he helped both presidents Trump and George W Bush strategise about how to get their picks confirmed. Leo’s control over the Republican nomination process has been so extensive that the Trump White House was said to have “outsourced” the process to Leo.

[…]

When it suits the conservative agenda, the Federalist Society and its disciples hamstring the power of states, such as the Supreme Court’s decision last week to strike down New York’s open-carry gun regulations. At other times, however, they act as strong advocates for states’ rights. We have just seen this in their latest decision on the issue of abortion, where they moved the power back to the states at the cost of practically erasing women’s right to abortion.

Rather than an independent proponent of a coherent and overarching set of political principles, the Federalist Society’s so-called commitment to “textualism” largely serves as an enforcement arm of other conservative interests, using the judiciary to push through the agendas of the NRA, the Religious Right and other wings of the current Republican coalition.

But hey, maybe we’ll get lucky and the high court will refuse to hear some of these cases or take a middle ground that won’t be so bad.

Are you feeling lucky?


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