Category Archives: Constitution

What Can We Do About The Supreme Court?

It’s no longer possible to avoid recognizing the extreme radicalization of the United States Supreme Court.  As an email from the Center for Inquiry accurately characterized the latest ruling, it was “not the act of a secular court but of a religious tribunal.” 

Since the ascension of Mitch McConnell’s hand-picked culture warriors, we have seen a steady stream of decisions laying waste to the legal underpinnings of American liberties. I have written before about the terrifying implications of the abortion ruling,  and why it threatens a much broader array of personal liberties than reproductive autonomy. (In his concurring opinion in Dobbs, Thomas made that threat quite explicit.) The Court has continued its assault on genuine religious liberty, which requires separation of church and state. And its wholesale abandonment of previous precedents on gun legislation–including even the pro-Second-Amendment decision in Heller written by “originalist” Antonin Scalia–is further evidence of a Court majority intent upon rewriting and re-imagining two hundred years of constitutional jurisprudence.

A reader asked me to comment on a report from the Brennan Center proposing changes to the way jurists are elevated to the high court. It is worth emphasizing that the Center issued this paper in 2019, and that it is only one of numerous proposals published during decades of scholarship addressing increasing concerns about the Court’s operations– the analysis was not written as a response to the recent blitz of appalling decisions.

Perhaps the thorniest issue raised by the current operation of the Court involves what the Brennan paper calls “democratic accountability.”

Judicial accountability is different from legislative or executive accountability; the whole purpose of lifetime appointments to the federal bench was to insulate the judiciary from the political passions of the moment–to avoid the sort of “accountability” to political pressure that the other branches  quite properly experience. The Executive and Legislative branches were created to be (more or less) directly answerable to “we the people,” but judges were expected to make thoughtful and considered decisions based on the law and facts as they saw them. (Electing judges, as some states do, is a repudiation of that foundational intent.)

On the other hand, the courts certainly weren’t meant to be untouchable quasi-legislative bodies. (Remember when Republicans screamed about “Judicial Activism” and “Imperial Courts”?) There are several ways to insure appropriate democratic accountability without abandoning the original purpose of lifetime appointments.

As the Brennan report noted,

Two funda­mental flaws in the Consti­tu­tion’s appoint­ment system must be fixed. First, there is no regu­lar­ized system for Supreme Court appoint­ments. Because pres­id­ents can appoint new justices only when a sitting justice resigns or dies, justices are appoin­ted unevenly, so that some pres­id­ents have many appoint­ments, while others have few or even none. In addi­tion, because justices now serve longer on aver­age than their prede­cessors, there are signi­fic­antly fewer appoint­ment oppor­tun­it­ies. These devel­op­ments fray the only formal link between the court and the people — nomin­a­tion by an elec­ted pres­id­ent and confirm­a­tion (or not) by elec­ted senat­ors. In the early days of the repub­lic, when the court was viewed as weak, such defects caused little harm. But today, with the court hold­ing immense power, the lottery appoint­ment system under­mines the court’s consti­tu­tional legit­im­acy and erodes the court’s connec­tion to our demo­cracy.

Second, life tenure permits justices them­selves to stra­tegic­ally time their retire­ments so that an ideo­lo­gic­ally like-minded pres­id­ent can appoint their successor. Recently, this has become the norm. Such ideo­lo­gical control of a Supreme Court seat was never contem­plated by the founders. In addi­tion, some justices have remained on the court after a severe decline in their mental or phys­ical capa­cit­ies, in hopes of last­ing until a pres­id­ent who shares their legal and policy pref­er­ences takes office. Such ideo­lo­gical control of a Supreme Court seat was never contem­plated by the founders when they wrote the Consti­tu­tion.

In the current system, some pres­id­ents appoint an outsized number of justices, some justices outlive the offi­cials who appointed them by many years, and  justices can time their retirements to ensure the ideo­logy of their successors. Worse still, a majority of Justices on the current Court were appointed by Presidents who had lost the popular vote.

As a result, today’s Court lacks democratic legitimacy. 

Correcting the two flaws described in the linked report would require a constitutional amendment prescribing regular appointments coupled term limits. (Constitutional scholars argue that 18-year terms should be adequate to insulate judges from political pressure.)

Given the daunting barriers to passage of constitutional amendments–not to mention the lengthy timeframe of even successful efforts– several legal scholars advocate enlarging the Court. Changing the number of Justices can be done by statute, and in fact, has been done before. Suggestions for enlarging the Court long preceded the current Court, and were prompted primarily by workload concerns–more recent Courts hand down far fewer decisions than previous ones did.

 The author of the Brennan report dismisses that remedy as too partisan, but–as I noted previously–his paper was written before Amy Coney Barrett joined the Court, bringing to five the number of radical religious culture warriors (with the frequent concurrence of the Chief Justice) intent upon dismantling years of constitutional jurisprudence. And five is enough to get the job done.

If the addition of justices is seen as partisan, so be it. The current Court is a thoroughly partisan religious tribunal–and a clear and present danger to the Republic. Ignoring that fact is not an option.

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Republicans Do Have An Agenda

A number of pundits have focused on the apparent lack of a GOP agenda going into the midterm campaign season.  They’ve noted that Mitch McConnell (aka “Dr. Evil”) has all but disavowed the list of unpopular proposals that Rick Scott produced earlier this year, and the lack of any other Republican platform.

So there’s no GOP agenda? Texas Republicans beg to differ.

As Heather Cox Richardson recently reported, Texas Republicans have put everything we suspected “out there” for all to see.  And if that platform, that agenda, that fever dream, doesn’t make chills run down your spine, there’s something wrong with you.

Delegates to a convention of the Texas Republican Party approved platform planks rejecting “the certified results of the 2020 Presidential election, and [holding] that acting President Joseph Robinette Biden Jr. was not legitimately elected by the people of the United States”; requiring students “to learn about the dignity of the preborn human,” including that life begins at fertilization; treating homosexuality as “an abnormal lifestyle choice”; locking the number of Supreme Court justices at 9; getting rid of the constitutional power to levy income taxes; abolishing the Federal Reserve; rejecting the Equal Rights Amendment; returning Christianity to schools and government; ending all gun safety measures; abolishing the Department of Education; arming teachers; requiring colleges to teach “free-market liberty principles”; defending capital punishment; dictating the ways in which the events at the Alamo are remembered; protecting Confederate monuments; ending gay marriage; withdrawing from the United Nations and the World Health Organization; and calling for a vote “for the people of Texas to determine whether or not the State of Texas should reassert its status as an independent nation.”

If this autocratic, theocratic and incredibly stupid wish list appeals to even a significant minority of Texans, I hope they will “assert Texas’ status as an independent nation” and secede.  Rational human beings–not to mention people who believe in the rule of law and the clear meaning of the Constitution and Bill of Rights–won’t miss them.

If Americans needed any further evidence of just how far the GOP has deviated from its former beliefs–not to mention sanity–Texans have just provided it.

Unfortunately, the GOP lurch off the radical cliff isn’t limited to Texas.

Here in Indiana, we’ve long had Republican legislators who are looney-tunes–the gun nuts who want everyone to be able to pack heat with no license or background check; the religious warriors who want to define religious liberty as the (limited) right of every American to live in accordance with the warriors’ own religious doctrines; the anti-intellectuals who fear new ideas and want to dictate educational curricula (or just replace the public schools with vouchers to be used primarily at religious schools); and of course, a hearty sprinkling of garden-variety homophobes and racists– but generally, saner heads within the super-majority have somewhat dampened their influence.

We’ve also been lucky that pious Pence was replaced by Eric Holcomb. While I have disagreed with Governor Holcomb on specific issues (sending back $ to taxpayers rather than using those dollars to address Indiana’s myriad deficits, for example), he has mostly been a reasonable and thoughtful official, out of the mold of former Republicans.

The Indiana GOP rejected Holcomb and the so-called Republican “establishment” this week in favor of the cult members and the Big Lie. Diego Morales defeated incumbent Holli Sullivan for the nomination to secretary of state in Indiana — an office documents show once fired him .

Sullivan’s loss is a major blow to the so-called establishment wing of the party, and yet another sign that Gov. Eric Holcomb’s influence is dwindling in his second term. Holcomb had appointed Sullivan in March 2021 after then-Secretary of State Connie Lawson announced her retirement.

As WFYI reported,

Morales’s bid was viewed by many as a challenge to the governor and the so-called Republican “establishment.”

Morales, whose family immigrated to Indiana from Guatemala, has previously pushed the Big Lie that the 2020 election was stolen from Donald Trump. He’s criticized Indiana’s election security, arguing the state needs to do more to prevent non-citizens from voting. And he wants to cut in half the number of early voting days before each election, from 28 days to 14.

“First of all, we are going to be efficient,” Morales said. “Number two, we are going to save some taxpayers money.”

After his win, Morales preached unity among his party. During the convention, many of his supporters booed and heckled current Secretary of State Sullivan.

In red states across the country, very much including Indiana, the inmates are running the asylum. I don’t know where that asylum is located, but it isn’t in the America I inhabit.

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Bumper-Sticker Politics

Watching the January 6th Committee’s first hearing reinforced a concern I’ve had for some time–a concern that had re-emerged just a few days ago at a fundraising event for our local Indianapolis prosecutor.

American politics has devolved into the battle of the bumper-stickers–an exchange of slogans and sound-bites that ignore the genuine complexities of law and governance–and I am increasingly worried that as a result, we have lost the ability to engage in responsible self-government.

I was reminded of the superficiality of our political discourse by a question and answer at the fundraiser I referenced. It came during a discussion about efforts to combat gun violence. The prosecutor, Ryan Mears (disclosure: I am an enthusiastic supporter) was asked about the efficacy of “Red Flag” laws, and he launched into a detailed explanation of the strengths and significant weaknesses of Indiana’s version–why his office had found that mechanism to be far less useful than we might otherwise think.

Someone then asked him how to deliver that information in a pithy sound-bite.

Of course, it simply isn’t possible to reduce a relatively complicated explanation to a slogan that would fit on a bumper-sticker, but the question perfectly reflected the state of today’s political debate, where vague labels are substituted for information.

That state of affairs is what makes the job of the January 6th Committee so fraught. Give Trump and his extremist (and generally mindless) minions credit for understanding that far too many Americans don’t want to understand the mechanics of governance .(For that matter, it was clear that Trump was profoundly ignorant of–and uninterested in–the work of governing as opposed to the perks of power). Ever since January 6th, with the enthusiastic assistance of propagandists for the Right, they have emulated those zoo monkeys who throw poo at each other, shouting slogans like “Stop the Steal,” despite overwhelming–and easily accessible– evidence that no “steal” had occurred.

Trump is still at it. Thursday, just before the televised hearing,  he tweeted  on his Truth Social platform that “the Jan. 6 Capitol attack “was not simply a protest, it represented the greatest movement in the history of our Country to Make America Great Again.” Anyone who saw the newly-released footage of the carnage has to be appalled by his enthusiastic support of a vicious mob bent on spreading death and destruction on his behalf.

The challenge for the Committee is thus formidable: how do you present a year’s worth of complicated fact-finding in a comprehensible way to people accustomed to responding to sound-bites and believing paranoid pronouncements? As one of the numerous “day after” stories noted, the committee had to “weave together thousands of hours of testimony, tens of thousands of documents, more than 1,000 different people they interviewed — and make it all coherent, compelling and as concise as Congress can be.”

That’s a high bar. Thursday night, they met it.

The Committee clearly understands America’s limited attention-span, and lack of patience for discussions of legal intricacies and legislative procedures. The initial hearing–effectively, the “opening statements”– marshaled evidence and testimony into a compelling storyline. No one who watched that initial hearing with a mind even partially open could honestly dispute the basic facts: Trump knew he’d lost the election, because his own people had repeatedly told him so. He lied anyway. Worse, he knowingly plotted to overturn the election results, cheered on the violent extremist groups, and would have done nothing to save the life of the Vice-President who had obediently slobbered at his side for four years, but who found committing treason for him a step too far. (I have despised Mike Pence for years, but credit where credit is– surprisingly–due…This time, he was a hero.)

The remaining Committee hearings will not be televised in prime time, so they may be less compelling and less viewed. The crazies and True Believers of the far Right will continue to tune them out. Even with the clear and convincing road map the Committee has provided, some of our fellow-citizens will find the information more complicated than they are used to, or inconsistent with their biases, or both, and will thus dismiss it.

The presentation of this evidence will not only show us whether proof of an attempted coup is enough to wake previously disconnected Americans to the very real danger of becoming an autocracy. It will also test the ability of citizens to understand realities that cannot be conveyed via  bumper-sticker.

Fingers crossed……

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We Need Genuine Christians

Wednesday’s post went into some detail about the competing American cultures identified by David Brooks. Brooks concluded (among other things) that an “autonomy culture” has prevailed over the traditional belief in obedience to an established external authority (aka God). He did acknowledge several of the negative aspects of the latter culture, but the more I’ve thought about his critique, the more I recognized the significant problems he failed to identify.

One obvious problem is that honest religious adherents cannot claim to know with confidence what their particular deity requires. (There’s a popular Facebook meme saying something along the lines of: isn’t it interesting that your God hates the same people you do?)

How many wars have been fought by men trying to prove that their God is bigger and better and more correct than someone else’s?

The bigger problem with Brooks’ description of what is really a culture of subservience is, ironically, theological. My clergy friends– who all exhibit what I consider appropriate moral humility– point out that authentic religious belief requires the freedom to choose.

Forced piety/obedience is inauthentic by definition.

What got me thinking about all this was a recent column by Jennifer Rubin in the Washington Post. Rubin was pointing to Americans’ disinclination to “tell it like it really is.”

It’s not the plague of “polarization” or “distrust,” some sort of floating miasma, that has darkened our society. Bluntly put, we are in deep trouble because a major party rationalizes both intense selfishness — the refusal to undertake even minor inconveniences such as mask-wearing or gun background checks for others’ protection — and deprivation of others’ rights (to vote, to make intimate decisions about reproduction, to be treated with respect.)

What Rubin dubs the “White-grievance industry,” composed of right-wing media, politicians, pundits and think tanks, is enraged over the loss of a society where “far fewer women competed with men in the workplace, White power was largely unchallenged, and diversity was less pronounced.”

Encouraging that rage has required the (mis)use of religion.

Robert P. Jones, CEO of the Public Religion Research Institute, wrote recently in Time about the MAGA formula, ascendant after the United States’ election of its first Black president: “the stoking of anti-immigrant, anti-Muslim, and anti-Black sentiment while making nativist appeals to the Christian right.

”The nostalgic appeal of ‘again,’” Jones observes, “harkens back to a 1950s America, when white Christian churches were full and white Christians comprised a supermajority of the U.S. population; a period when we added ‘under God’ to the pledge of allegiance and ‘In God We Trust’ to our currency.”

Our future as a tolerant, decent society ultimately may depend on White Christian communities’ recovering their moral equilibrium and support for American democracy, and rejecting the movement to turn churches into platforms for QAnon and white nationalism. But we cannot wait for an evangelical reformation.

Rubin and Jones are hardly the first to point out that people purporting to be “bible believing Christians” have perverted the previously understood teachings of that religion to serve political ends. But in the following paragraph, she contrasts that faux Christianity with the behaviors of people who take philosophical and religious teachings and the “norms of civilized societies” seriously:

MAGA voters think everyone else is the problem. As perpetual victims, they feel entitled to ignore the demands of civilized society — e.g., self-restraint, care for actually vulnerable people, pluralism, acceptance of political defeat. Their irritation with mask-wearing gets elevated over the lives of those most susceptible to a deadly pandemic. Their demands to display an armory of weapons mean schoolchildren become targets for acts of mass gun violence. Their religious zealotry, fed by the myth that Christianity is under attack, means poor women cannot have access to safe, legal abortions.

My friends and family members follow a wide variety of religious traditions and none. Virtually all of them– devout and nonbeliever alike–have come to their beliefs via the exercise of personal autonomy–choice. They have examined the teachings of their their own and other religions, adopted those they’ve found persuasive and rejected others.

Several are people I regard as real Christians. They follow a very different Jesus than the John Wayne clone manufactured by political Evangelicals. (For one thing, their Jesus isn’t an ahistorical White guy with blue eyes.) They attend–and in a couple of cases, lead–churches that avoid the moral absolutism buttressed by cherry-picking  bibles that have been translated from their original languages over the years. They respect people who are racially and religiously different, and they understand why authentic religious belief requires separation of Church from State.

They’re the ones I consider “kosher”  Christians, and the ones I know are really, really tired of the White Supremicists who have appropriated –and continue to disgrace–the name.

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Ah, Federalism…

One of this country’s ongoing struggles has been with the concept of federalism. Which rules should be nationally-imposed, and which should be left to those “laboratories of democracy” lionized by former Supreme Court Justice Brandeis?

Students who have been taught the actual history of the United States are aware of the multiple problems the country experienced under the Articles of Confederation; those problems were severe enough to prompt the replacement of the Articles with our current Constitution. In the (many) years since, however, we seem to have forgotten about the very negative consequences of government fragmentation.

Certainly, not all policy needs to be nationally uniform–there are plenty of areas where local control is appropriate. Questions about who is entitled to fundamental rights–and what those rights are–isn’t one of them, as the patchwork of approaches to reproductive freedom that’s emerging is likely to demonstrate. Forcefully.

The application of the Bill of Rights to state and local governments was meant to establish a floor–to ensure that a citizen moving from say, New York to Indiana, would not thereby experience a reduction of her fundamental rights as an American citizen. Justice Alito’s evisceration of the substantive due process clause is–among other incredibly negative things– a step back toward the fragmentation of the Articles of Confederation.

Over the 200+ years of American statehood, the need to rationalize and unify large areas of the law gave rise to the work of the Uniform Law Commission. The Commission drafts and promotes state enactment of uniform laws in areas of state law where uniformity has been recognized to be both desirable and practical. Probably the best-known uniform law is the Uniform Commercial Code– a comprehensive set of laws governing all commercial transactions in the United States. It has national application, but it isn’t a federal law–it was uniformly adopted by each state’s legislature.

As the Commission’s website explains,

Uniformity of law is essential in this area for the interstate transaction of business. Because the UCC has been universally adopted, businesses can enter into contracts with confidence that the terms will be enforced in the same way by the courts of every American jurisdiction. The resulting certainty of business relationships allows businesses to grow and the American economy to thrive. For this reason, the UCC has been called “the backbone of American commerce.”

Obviously, commerce isn’t the only area where uniformity is “desirable and practical.” Federal action in the face of a pandemic would certainly seem to qualify, and before the incompetence and massive ignorance of the Trump administration, the federal government largely directed public health responses to threatened outbreaks.  Last March, Talking Points Memo addressed the disastrous results of Trump’s decision to leave COVID response to the states.

From the very start of the Pandemic in the first weeks of 2020 the Trump administration consistently sought to disclaim responsibility for things that would be genuinely difficult and could have challenging or bad outcomes. Push the tough tasks on to others and if it goes badly blame them. This frequently went to absurd lengths as when the White House insisted that states short on ventilators at the peak of the spring surge should have known to purchase them in advance of the pandemic. Over the course of the year Trump spun up an alternative reality in which the US was somehow still operating under the Articles of Confederation in which individual states were responsible for things that have been viewed as inherently federal responsibilities for decades or centuries.

It is not hyperbole to suggest that a more co-ordinated, federalized response wouldn’t just have saved lives, but in all likelihood would have cut short the period of most vulnerability.

No serious student of governance believes that, in a country as large and diverse as the United States, all decisions should be made at the federal level. The question with which we should be grappling is “which responsibilities are properly federal and which matters are properly left to state or local governments?” (Someone needs to tell Indiana Senator Braun that interracial marriage is not one of those…).

What laws need to be uniform if we are to be the United States of America, rather than a haphazard collection of Red and Blue fiefdoms?

I’m willing to leave zoning decisions up to local municipalities, and a substantial portion of criminal justice measures up to the states. When it comes to fundamental rights, not so much…

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