Escape To SCOTUS-Land

Escape to SCOTUS-Land

I entertained several titles for this blogpost before I eventually settled on this one.  I believe it captures the reality, sad in my opinion, of American politics over the past fifty years.  Unable to resolve a host of important but controversial issues, from abortion to guns, and from voting and civil rights to matters of church and state, both parties and behind them the American public have turned the Supreme Court into a proxy battleground.  That has brought the cynical politicization of the Court, the call for litmus tests concerning the selection of candidates and serious spillover effects into electoral politics.

Depending how the majority of justices appears to tilt toward the right or left, the decibel of groans and the degree of anguish grow predictably and correspondingly in the ranks of liberals and conservatives.  With the passing of Ruth Bader Ginsburg last week, it is the liberals singing the blues as they anticipate the inevitable shift of the Court to the right.  I happen to believe that our reliance to the high court to resolve our political differences is one more indicator of our dysfunctional and divisive politics and it is time we think more soberly about the real roots of our problems.  Without being a legal expert but still with the interest a citizen ought to have about such matters, I will try to offer a dispassionate perspective on the role of the Supreme Court.

Separation of church and state.  The main intent of the establishment clause was to prevent the US government from favoring any specific religion or sect at the expense of others and thus avoid the sectarian wars that had marred Europe. *  I don’t see anything in the radar to suggest this clause is in danger.  As far as I know, several recent Supreme Court cases decided in favor of religious entities had to do with the doctrine of equal treatment whereas others have opposed the use of public funds for religious instruction.  The Hobby Lobby decision granting the company the right to deny insurance coverage for abortion (on the basis of the religious beliefs of the firm’s owners) is an interesting case that has its roots in an American peculiarity concerning health insurance.  The US is unique among advanced economies in making health insurance conditional on one’s being employed, thus giving employers a voice in various collateral matters.  The way out of this unconventional arrangement is (in case you disdain a single payer system) a public option insurance plan free of faith-based restrictions.

Political money.  By granting the right of speech to corporate entities in Citizens United v. Federal Election Commission, the Supreme Court indeed allowed additional cascades of money into politics but again it was forced to decide on something Congress had failed to regulate.  More than any other modern democracy, the US has institutionalized the role of money in politics with all its distorting and corrupting effects on elections and policy making.  It boggles the mind that Americans are willing to spend billions of dollars to recruit senators and representatives whose job performance rarely satisfies more than 20% of the electorate!  However, the argument that political money favors conservatives at the expense of Democrats is without merit.  There is plenty of money on both sides and only the degree of largess of prospective donors determines how much flows to each side.  Just recently, billionaire Mike Bloomberg committed a cool one hundred million dollars to the Florida race to defeat Donald Trump.

Voting rights.  Do we know of any other Western democracy where the courts are as extensively engaged as in the US in resolving disputes around voting rights and procedures?  Notwithstanding the lack of any credible evidence of voter fraud, cases of eligibility to vote, gerrymandering decisions, and mechanics and methods of voting are frequently before the courts, including the Supreme Court.  The states, which have jurisdiction over voting, and Congress have been proven unwilling or incapable of putting an order to the system.  And a disruptive president has exploited these disputes to claim the possibility of voter fraud when, thankfully, this is not what ails the voting system in the US.  You can stack the Supreme Court with nine all liberal or conservative justices and there is little they can do to take us out of this morass.

Civil rights.   This is an area where much more can be accomplished by the force of public attitude and behavior as Americans move – and the movement is in the right direction – to a more inclusive society.  It has been generally observed that in matters of civil rights, like those related to racial equality and sexual/gender orientation, the Supreme Court has tended to move along with rather than against the public sentiment.  Thus, a Court shift to the right may not prove as injurious as it is feared to the advancement of civil rights.

Guns.  Another difficult controversial matter left to the Supreme Court to fix.  Consider the absolute tenor of the Second Amendment: “the right of the people to keep and bear Arms, shall not be infringed.” And yet, state courts and the Supreme Court have found some wiggle room to place some regulations.  But in this case as well, Congress has failed to take the lead despite the overwhelming evidence that counter to the lame argument of the gun lobby “guns don’t kill, people kill,” gun possession is being proven to be extraordinarily deadly to Americans. 

Abortion.  At the risk of sounding repetitive, let me again say, the US stands out among modern democracies as the country where abortion generates such fervor and fanaticism.  In Western Europe, even in strongly Catholic Ireland, the people, not necessarily the courts, have found ways to adopt abortion rights without the histrionics we see in the US.  They have mostly adopted a middle solution away from the American extreme positions of pro-choice and pro-life advocates.  Are all these people morally compromised one way or another compared to Americans?

I do not wish to minimize the implications of a Supreme Court tilting to the left or to the right.  But let’s look at the political reality.  A president willing to exploit, even abuse, his executive powers to his personal benefit; his party unwilling to provide the checks envisioned by the Constitution; and a Congress chronically ineffectual in legislating matters out of the hands of the courts.  And a citizenry with a significant fraction given to the voracious consumption of disinformation and conspiracy theories. 

To expect in this environment that nine mere mortals seated at the Supreme Court have the power to save us from the failings of the other two branches of government and ours is delusional and a kind of escapism from our responsibilities as citizens. 

* The CARES Act passed by the Congress to combat the economic fallout of the pandemic allows the extension of the Paycheck Protection Program to churches for the payment of clergy salaries.  This is one of the most direct uses of public funds by religious establishments ever allowed.  And it did not come from the Supreme Court.