The supreme court has been in decline for quite a while now and I suppose we shouldn’t be too surprised. The symptoms of its chronic disease have been myriad.
- The quality of the actual justices has gone south. One of the most reviled justices in recent memory is the departed Antonin Scalia. He was misguided, pedantic, dogmatic and kind of a jerk, but he was a capable and thorough jurist. And even if you disagreed with every opinion he ever had you could at least recognize he was consistent in his ideals and honorable in a twisted way. I despised the guy but respected his abilities and commitment. Gorsuch, Kavanaugh and ACB couldn’t carry his briefcase.
- The fact that Mitch McConnell considers his successful blocking of not one but two of what should have been Obama appointees his greatest achievement as a senator is proof of how far it has strayed from its intended purpose.
- That a body designed to be the paragon of ethics and law has refused to even allow itself to be held to the same standards as Congress – a low bar at best – with regard to corruption is as despicable as it is unsurprising.
- They have morphed into such a blatant arm of the Republican congress and its contemptible leader it is hard to fathom that they were once intended to be a check or balance of either and theoretically both.
So the fact that they are stacking up gross decisions is predictable, but no less discouraging for all of that. But the one currently stuck in my craw is the recent decision to allow Texas’ outlandish gerrymandering.
Let’s get up to speed. The RNC and ConDon’s mechanics are well aware that their margin in the House is razor thin and if their popularity – all of the sudden being chained to an addled, spray-tanned anchor might not work out so well – keeps plummeting they might be screwed. (Not that they are using their majority to do anything other than rubber stamp Fearless Leader’s whims. No Congress since 1993 has done less in the same amount of time and the ones that were close were split majorities. Schmucks.) So they decide the solution is not to pass effective legislation, back good candidates, serve their constituents or organize and campaign well. You know, Democracy. No, the solution is to gerrymander like mad, despite it being extremely bad form and maybe even unconstitutional to redistrict between censuses. And here to undertake this underhanded strategy better than Texas, where you have a governor and attorney general so desperate to metaphorically smooch Trump’s puckered bum that they would probably actually literally do that very thing. Sorry for the image. They then proceed to bungle it so badly, on the advice of the DoJ no less, that it looks like despite breezing it through the state legislature it will not survive legal challenges from pretty much everywhere. Bungled how? Well, it is supposed to be unconstitutional to create districts based on race, which can in turn be tricky due to pretty powerful correlations between race and party affiliation. Voting blocks tend to live together, as do racial cohorts, so to break them up almost always means dividing on racial lines. It is circular and convoluted all at once, which is why it is hard to do without everybody noticing. Competent legislators struggle to get away with it, so these clowns’ attempts predictably failed, got challenged and rose up through the courts quickly and decisively against the attempt. Which brings us back to SCOTUS.
The Court has been, over time, consistently and reassuringly against these types of shenanigans. Even pretty far right justices could spot this as fundamentally wrong and were willing to nip it in its unconstitutional bud. Until now. Texas gets to keep its shameful (and shameless?) redistricting, which from a legal standpoint was quite surprising but in the context of this court almost preordained. So that it happened very much pisses me off, how it happened is galling and offensive, but what really has my knickers in a twist is their stated rationale.
Gerrymandering by race is bad, right? Yes, says the court for many decades. So why the hell can this be overturned when the lower courts were very clear in establishing that this was exactly how they did it? Let’s play the scene:
District court to Texas – “You can’t redraw these districts in this way. It is clearly based on race and that is unconstitutional and shitty.”
Texas – “But we want to! Constitution schmonstitution. We’re gonna go ask our buddies on the Supreme Court.”
Supremes – “Hey, you know they might be right. We’d love to help, but redistricting by race is pretty dodgy.”
Texas – “Race? No, no. We don’t care about race, we just want to protect Republican incumbents and create five new Republican seats. This is purely partisan politics.”
Supremes – “Oh, well in that case knock yourselves out. Us Republicans gotta stick together and we’ve been shredding the constitution anyway.”
District court – “But, but . . .
Supremes – “Shut it, junior. You should have trusted them when they said it was just politics. They’re not racists, just cheaters. Sheesh.”
Okay, I might have paraphrased a bit there, but they did actually chastise the lower courts for not accepting the premise that undermining democracy was fine as long as it wasn’t racially motivated. Incredible. I in no way intend to make light of this ludicrous miscarriage of justice. It is wildly inappropriate and should be roundly vilified. Needless to say, the three Democrat appointed justices dissented to this travesty to no avail. It will be very interesting to see how things go when California’s redistricting map comes up in the coming weeks. Same premise, and in fact in direct response to the Texas plan. One very large difference is that the Texas plan was done by Abbott and approved by the legislature while California’s was voted in by ballot referendum with a large margin. Maybe the SCOTUS will seize on that as an excuse to disallow California’s. Stupid, yes, but at this point I would put nothing beyond their capacity for unconstitutional buffoonery.
The Supremes have a lot of big stuff coming up for argument this session, so I’m sure we can count on more partisan horseshit that I will wax indignant about. But before I let this one go I want to throw out one more thing.
It is not just incompetent partisan justices, crooked senators and rampant hypocrisy and partisanship that has put the SCOTUS in the dumpster. That happened the moment it became normal to refer to justices as liberal or conservative. We held on for a bit by carefully categorizing them by the party of the president who appointed them, thereby drawing a line between the aims of the administration and the theoretical neutrality of the justices themselves. A veneer perhaps, but better than the stark and extreme ideologies that are now actively associated with, and even expected of, the members of our highest court. Wasn’t the point to have a branch of government that operated outside the partisan pathologies inherent in the other two branches? To be the unbiased arbiters of the law and its foundational document? Aren’t judges supposed to be impartial? Hell, that is the definition of the title. When I consider what the framers might think of where we are now I often think the state of the court would be what horrifies them most. I used to love the Supreme Court. I admired their high intellectual standards, their dignity and honor and their commitment to actual justice. Some of the most revered names in American history are from the court and joining it was the pinnacle of achievement in jurisprudence. I always considered them the best and brightest part of the democratic ideal and held them in high esteem. Now I tend to hold my nose and cross my fingers that they aren’t the thing that tips us from the brink of disaster into the abyss. Thanks for reading.