The Supreme Court Has Made Me A Liar

This week, the United States Supreme Court laid waste to 20 years of lectures I gave my students.

I used to explain the importance of stare decisis–the importance of a predictable and stable legal system based on fidelity to the rule of law. I explained that the Founders used lifetime appointments to the federal judiciary to shield judges from political pressures and allow them to engage in dispassionate evaluation of the law and facts of the cases before them. And I emphasized that–while statutes can be passed to confer and protect rights– statutes are much more easily overturned than rights secured by the Constitution.

Mitch McConnell’s Court has proven me wrong on all counts.

Stare decisis? Precedent? What are those to determined judicial ideologues? Mere minor impediments to be brushed away by finding that they’d been wrongly decided and followed.

What about those lifetime appointments? Thanks to a Senate dominated by politicians determined to appoint political cronies, those lifetime appointments have become protection against removal–giving  Justices who have clearly subordinated ethics and dispassionate evaluation to political ideology free reign to wreak havoc with the rule of law.

it was appalling enough when the religious tribunal that constitutes today’s Supreme Court majority overruled Roe v. Wade –a fifty-year precedent–using language that clearly signaled the coming of an all-out assault on other rights. That decision followed a victory by the gun lobby that overturned a New York statute that had been in place for over 100 years, and was equally dismissive of the plain language of Justice Scalia’s decision in Heller.

As if the case from Maine requiring vouchers to be spent at religious schools wasn’t a clear enough message that the majority was coming for the Establishment Clause, the Court drove that message home: the tribunal ruled that a public school corporation must allow a football coach to deliver performative prayers on the football field’s 50-yard line–a clear endorsement of religion, and a radical departure from over 100 years of First Amendment jurisprudence. That decision created a hole in Jefferson’s “Wall of Separation” big enough for the Christian Taliban to drive through, and arguably put prayer back in the nation’s public schools.

(More solicitude for religion: the Court ruled that Texas would violate religious freedom if it executed a death row inmate without allowing his pastor to touch him and pray aloud with him. Evidently, killing him didn’t pose any religious problem–or constitute a “pro life” inconsistency…)

But this radical Court didn’t stop with those UTurns in the law. Yesterday, it eviscerated   the ability of the EPA to act on urgent environmental threats–again, despite precedents to the the contrary. In yet another 6-3 decision, the Court limited the Environmental Protection Agency’s authority to set standards on climate-changing greenhouse gas emissions for existing power plants. A Guardian editorial said the ruling “means it may now be mathematically impossible through available avenues for the US to achieve its greenhouse gas emissions goal.”

Evidently, these Justices don’t have grandchildren who will have to live in a society upended –or possibly just ended–by climate change.

There were other, less publicized offenses against the rule of law.

Wednesday, the Court dramatically increased the power of states over Native American tribes. That result –a win for Republican officials in Oklahoma–required ignoring the Court’s own 2020 ruling that had recognized an expanded tribal authority. (That particular affront was too much even for Justice Gorsuch, who–for once–departed from the lockstep radical majority.)

In another 6-3 case demonstrating the selective nature of the majority’s concern for life (the concern apparently evaporates at birth) the court found that the Biden administration’s vaccine-or-testing mandate for large employers was not lawful.

The New York Times has a rundown of this appalling session, with additional cases.

This recitation brings me to my final error: telling my students that constitutionally protected rights are more stable than rights protected only by statutes.

Congress can–and must–codify the rights this illegitimate Court has trampled, as well as those it is clearly threatening. It also needs to add Justices chosen by a President who actually won the popular vote. But in order to do those things and take other critical steps, Democrats must win in November, and they must win control of the Senate in sufficient numbers to make Joe Manchin and Kyrsten Sinema irrelevant.

Off-year elections almost always favor the party that doesn’t control the White House. If the GOP wins even one house of Congress this year, it is not hyperbole to say that the Constitution and Bill of Rights are effectively over. Neutered. Irrelevant.

Vote Blue no matter what. We can argue about gas prices after we save the Republic.


  1. Ah yes, down to the “vote blue no matter who” motto. It’s been about “losing this democracy” for so long…

    Steven Donziger is getting close (half right) when he writes:

    “While the corporate right complains of the “deep state”, this article shows it is actually the fossil fuel industry, the Koch brothers funding network, and other allies who have created the real deep state to serve their narrow interests at the expense of the majority.”

    But there is a Deep State too which is expanding NATO across Europe toward Russian and in the South Pacific.

    These are hegemonic forces hellbent on controlling the reins and nothing will stop them except extinction. If a Second Coming doesn’t happen soon…

  2. Mitch McConnell’s Supreme Court has also turned all women into victims as well as victimizing the majority of Americans in general; including elected officials at all levels whose powers have been weakened or lost. Majority no longer rules in all branches of this government; overturning Roe vs. Wade appears to me to be a major step in ending the ACA, one section at a time. We mustn’t forget who gave McConnell the nominees to turn the Supreme Court into a religious tribunal; Trump’s legacy as American hero is being firmly established on a day-to-day basis.

  3. I’ve seen plenty of precedents tossed aside by liberal justices over the years. The sudden interest of the left in “stare decisis” rings a bit hollow. Liberals want precedents left in place IF they represent their policy preferences. Otherwise, they’re fine with tossing them.

    As far as the climate decision, didn’t the Court just say that the EPA was acting outside of the authority Congress had given it? Congress is always free to give the EPA the authority to act in the way the agency had tried to act. Similarly, Dobbs doesn’t mandate bans on abortion. Rather it leaves the issue up to the people and their representatives in state legislatures

    It just seems my friends on the left don’t believe in American democracy and would rather have unelected federal judges deciding policy positions…as long as those decisions reflect their values.

  4. Paul: the reality is that your friends on the right have packed the Supreme Court, gerrymandered the Congress and are waiting to anoint a Republican President regardless of the outcome of the 2024 popular vote. So who’s being disingenuous?

  5. The Foucault Pendulum on display at the Museum of Science and Industry in Chicago has demonstrated consistently over time a predictable rotation of earth. That demonstration is supported by weather forecasts that accurately announce the time when the sun rises and sets. There are other ways Mother Nature teaches us if we listen and take time to notice. The pendulum always returns from which it came, save forces of rotation of our planet over which we have no control. Maybe not in our lifetime, but when we take our grand children to a museum such as that in Chicago, as my grandparents did for me, we can pay forward the same message, “you will see better times for yourselves than today”.

  6. If like me, you have “always wanted to be part of a small rebellion” here is your chance. There are measures to take that will clearly send a message to the oligarchs on high and their White Christian Nationalists.
    Cut back on all electric use. Dial back the thermostat in winter and raise it in summer.
    If you can afford it, install solar on your roof. Even one unit to run just one major appliance will
    have an effect.
    If you cannot afford that try an inexpensive strand of Christmas solar lights on your entryway.
    I have illuminated my front porch this way for going on five years. So far not a penny to the
    electric company for this illumination.
    What I am trying to say here is that these attacks on our Constitutional rights by the Supreme Court have to be pushed back and overturned not just in the voting booth, but also in our everyday lives. We each need to stand up and rebel whenever we are able. We need to speak up loud and clear. No more pussy footing around with those who bankrolled this mess, voted for Trump, and continue to support these new rules by soft-pedaling the danger. I’m talking to you, Paul Ogden. “Leave it up to the state legislature?” This is Indiana for Christ sake! Have you been living on another planet for the past forty years?

  7. Paul, just an FYI. The court essentially said that the EPA couldn’t make any rules that weren’t already in the law passed by Congress and signed by the President. What that means is that there will be no more rulemaking by anyone outside of Congress. That might just be the nuttiest interpretation of any law in our history. Congress does not have the expertise to make the rules that enforce the laws. So I guess we now do away with the Federal Register so that, going forward, nobody who doesn’t own their very own Congressperson or Senator, will have any say over laws that impact them. Hello, United States of Koch!

    The problem that I have with the current SCOTUS, is that they ignore everything they don’t like about the Constitution and are working to turn it on its head. Sometimes, decisions need to be overturned, like Plessy. What we don’t need is 6 justices determined to overturn the Constitution.

  8. The Wisconsin supreme court just endorsed a right wing power grab by ruling that gop board members can remain in their board positions even after their term expires. They claim that board positions are not technically vacant until the senate confirms replacements. The WI senate has refused to confirm any of the Democrat governor’s appointments, essentially maintaining gop power everywhere.

    Elected gop leaders throughout the country have created an organized crime syndicate that has taken control of local, state and the federal government.

  9. Well … I could not resist. The next time I see lovely solar powered lights glowing in someone’s entryway, I’ll know it is resistance to White Christian Nationalists running our local power grid. Look. Folks. If you believe we can always control our destiny, you run a predictable risk of just piss’n into the wind languishing in pretentious succulence of a warm mist. Relax. If the pendulum takes longer to swing to the right, then it will take just as long to swing left. Just like drama of a soap episode: “As the World Turns”.

  10. Paul’s characterization (in comments above) of the Court’s decisions as “nothing to see here” ignores not just WHAT the Court has done, but HOW it has reached its decisions. The so-called conservatives’ claim to “textualism” and “originalism” were entirely abandoned when those stood in the way of an entirely new “Major Questions”-doctrine that has never before appeared in a Supreme Court majority opinion and is not anywhere in the Constitution’s text … a convenient (read thoroughly disingenuous) Trojan Horse through which the radicals on the court are — and have promised to continue — completely remaking the federal government in their pathetic, a-historic image.

    Make no mistake, what the Court has done this term IS radical and it puts this Country in a death-spiral from which it will not be able to recover because, unlike past periods when “the people” could respond with their votes, the Republicans and the Court have decimated the Democratic rights of people to elect representatives who will fix the problems, and now the Court has removed from the federal government the authority even to address significant life-threatening problems of the day.

  11. I’d point out that overturning Plessy with Brown was applauded by most non-racist however that seems to be the only example where reversing precedent was a good thing todays conservatives can point to. It’s sad that when Sen. Coryn said “ now do Brown v Board of education” he had to tweet out a follow up because most people assumed, with good reason, that he was serious.

  12. “Vote Blue” only really matters on state-wide offices. In most states, the rest are pre-determined results by either party due to redistricting. The single target of the recent gerrymandering (by both parties) is competitive races. Of course SCOTUS ruled that redistricting is a “state right”.

    One might presume that somewhere underlying the EPA decision is the idea that corporations are “people” and their “right” to pollute resembles free speech (such as the pollution spewed by Jim Jordan, Lauren Boebert and their ilk?

  13. Yes. The SCOTUS continues to throw up on all of us, right and left alike. It’s a disgrace, but that’s what Republican “activism” gets us. Todd is right about who really funds a deep state. That tenet has been mentioned on this blog for years.

    The election of the dumbest, most corrupt legislators across the country has set the stage for the collapse of our Republic. Imagine, if you can without barfing, creatures like Boebert and Greene deciding on our environmental issues, women’s rights or anything else that serves the people via the Constitution. Yeah. Me too.

  14. In the book of Daniel, it talks about a time when the Political Realm and Society cannot remain cohesive.

    When the Babylonian King called for interpretation, Daniel explicitly said the Entirety of Human Rulership rested on feet of iron mixed with clay, partially strong and partially brittle. The eventuality of which, those feet (with its 10 toes denoting completeness or entirety) would crumble unexpectedly albeit prophesied.

    Whether One believes in it or not, this is actually occurring presently. Happenstance? Maybe! But it is still happening.

    In 2nd Timothy, it discusses what was brought out in the book of Daniel, it describes the time and conditions that Daniel warned about.

    “Men will be unthankful, disloyal, having no natural affection, not open to any agreement, slanderers, without self-control, fierce, without love of goodness, betrayers, headstrong, puffed up with pride, lovers of pleasures, having a form of godly devotion but proving false to its power.”

    So, what does this lack of cohesion point to? A culture of Moral Turpitude!

    Case in point, in the beginning of the 20th century, the very early 1900s, society and its individuals therein measured their self-worth in a non-monetary fashion.

    By the end of the 20th century self-worth was measured in monetary forms. The global hegemonic societal conglomeration, and the individuals there in, embraced the mantra listed in 2nd Timothy.

    Edward Goldsmith discussed this very thing in his book published in 1990, 5,000 Days to Save The Planet!

    5000 days? 13/14 years? Looks like that warning cry fell on deaf ears. That horse bolted the barn, and they didn’t even try to close the doors! How many warning cries will make a difference? Realistically, how many warning cries have we heard with our own ears? But, politicians and governments prefer to keep their hands in the pockets of their citizens, and, have their pockets filled by, as Todd would say, “The Oligarchy!”

    Any wonder why Society has become Frankenstein’s Monster? An imperfect man-made Creature that seemed possibly docile, but in the end, brought about the destruction of not just itself but it’s creator.

    There was great destruction during the World Wars, but there was only about 2 billion people on the planet. Today, there’s about 8 billion! A majority of those are in areas that are deprived. We now have global droughts, and, military conflicts that actually Target food sources! Spendable currency is not based on a gold standard anymore, just the faith and backing of its distributor. Activists reversing environmental and civil safeguards put in place in the 60s, and reversing civil and voting protections, when the pendulum swings back this time, it might be the last time.

    I’ve mentioned a way that things could be corrected in this particular country, but not globally. Although, much of the world would tend to follow the leader if the leader had a moral high ground! But we’ve recently seen, no one is in possession of that moral high ground!

    Christ himself mentioned in Matthew 24:37-39, concerning the warnings that were given out in a Time of a distant past and a warning to a time in the distant future: “as they were in those days before the flood, eating and drinking, men marrying and women being given in marriage, until the day that Noah entered into the ark; then they took no note until the flood came and swept them all away, so the presence of the son of man will be.”

    A parable? A prophecy? A warning? Most don’t believe, but, things seem to be heading in that direction.

    Let’s face it, will anything change concerning politics or Society in general? It’s been going from bad to worse since the first world war, and, “Compromise” and “Cooperation” might as well be the 2 Planets orbiting Proxima Centauri! Observable but unreachable.

    Todd might have been joking, but he was correct in hoping for a second coming!

    Although, I see the looming Frankenstein’s Monster and all those sitting at his altar!

  15. The long slide into a Fascist Theocracy is accelerating. Jan 6th was enough for me and I sold off everything and got the Hell out of Dodge.

  16. All these long commentaries do nothing to help. Vomiting and voting is not enough. Send money to support the candidates you intend to vote for. Start at the top of the list, Tom McDermott for U.S. Senator, the D-candidate for Sec. of State and down the list.
    Money matters. Your vote is important and so too are your dollars that help get others to vote for rationality in politics.

  17. The only good news is that SCOtUS is out of session, for now, anyway!
    Manchin and Sinema are too attached to fossil fuels and Payola to be any use in correcting the right-wing spin that has been going on, and DO need to be made irrelevant! I would not be surprised to see them both declare themselves as Republicans some time soon.

  18. Government, in order to serve best serve people, needs to be a stable institution. In fact, for any institution to be helpful over the long term it needs to be stable and resist trivial changes over a long time. Cultural anthropologists say that is why culture evolved as a service to society – it guided each generation to stay in line with what previous generations had learned from experience served them well and what didn’t work well. Of course, what is counter to culture are the egos of new generations who believe that they know better than their elders.

    The kind of Justices appointed by Mitch McConnell dictated Senates tended towards the same outsized egos. They see themselves as exceptional human beings entitled to rule, not adjudicate, and their ruling is based on the certain knowledge that their predecessors were just plain wrong.

    Of course, that’s destructive to governments which is the real purpose behind conservative “thinking”.

    We are caught up in our own Brexit disaster now.

  19. Morton,

    You don’t get it, money is not going to solve anything.

    An activist supreme court is giving the fanatics in the states that matter, a way to overthrow any election no matter how much money is spent. The Supreme Court has the final say, not elections or politicians of any sort, spot or stripe.

  20. the cost alone in sending money,may help. a informed public is far more wiser to act.(ones who read)
    the DNC needs to vacate the incumbant extortion scan and allow whos best fit for the job,by our decissions.
    obviously they gave us mannchin and selinima,(whatever) its hard to send money when it
    supports our demise by a party we vote ,,into..

  21. Paul Ogden, if you’re arguing the States should have the ability to decide what rights each person gets, rather than the courts, you don’t understand what rights are or why they’re in the Constitution.

  22. Since when, right or left, has a Supreme Court assigned enforcement of a federal right to the states? This is a rogue court and we need to add four more members to the court post haste, and it’s a real world – money does matter. Case in point > Kochs.

  23. Good grief–just saw a posting on Clarence Thomas and how he thinks the Covid vaccine are developed using the cells of aborted fetuses.

    Besides working in a geriatric psychiatry clinic we also treat folks w/ Alzheimer, dementia, and cognitive impairment. I actually administer the MOCA’s and MMSE tests which is just a quick screening for memory or cognition impairment. Do the Supreme Court justices have to have any form of neurocognitive testing to ensure they are mentally fit to make decisions?

    Since their appointments are lifetime appointments–is there anything in place to ensure mental competency like neurocognitive testing. I ask as I see a fair number of folks that can keep it together until I ask some questions or have them draw a clock.

  24. Elaine; that fact regarding vaccines was initially discussed at the Catholic Bishop’a Conference in, I think, December 2019. To be passed on by Priests to their parishioners if they were concerned about that fact. Uncle Thomas is just a few years behind this fact…and many others.

  25. What a freakin’ mess we are in! All of the suggestions given this morning seem like rearranging the deck chairs on the Titanic. My dilemma is whether to advise my children and grandchildren whether to stay and fight or flee to Canada.

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