https://eand.co/the-supreme-courts-gone-rogue-and-this-is-a-judicial-coup-d405c8e0179
The correct way to understand what’s happening in —or rather, to — America is this. A series of coups are underway. Where and when one fails, the next one kicks into gear. As the Jan 6th Committee has revealed the inner workings of that fateful day — how the President, it seems, hoped to personally lead a violent attempt to stop the counting of electoral votes, replete with armed militants hunting down the Vice President and leader of the opposition — instead of stopping, another coup has simply begun.
This time, it’s judicial. It comes courtesy of what might be called a rogue Supreme Court. It’s been deliberately stacked with fanatics and lunatics. When I tell my European friends that a woman now sits on it who’s a member of a fundamentalist sect where women were literally called Handmaids and took vows of submission and obedience to men — their eyes nearly pop out of their heads. They’re lost for words. They laugh, as if I’m joking around. Then I tell them I’m not, and they shake their heads in disbelief.
The end of Roe. Prayer in schools. Making it possible to carry guns even in States that don’t want them. Hobbling the EPA’s ability to tackle climate change. Next up, not just gay marriage, but being gay — “sodomy” laws back on the books. Then comes contraception.
Then come the other big targets: the end of “interracial” marriage and the reinstitution of segregation, though it’ll be under the guise of something less malign.
In what sense is all this a judicial coup — and a constitutional crisis?
Let’s go back to the very basics of democracy, as it’s instituted in America. The executive branch carries out — executes — laws. The legislative branch — Congress — makes law, in accordance with the constitution. And the judicial branch — whose ultimate arbiter is the Supreme Court — decides whether legislation is constitutional.
But there are limits even to all that, and those limits are in the constitution itself. Constitutions contain inalienable rights. Even a Supreme Court doesn’t have the authority to take such rights away. And when and where those rights have been amended — in constitutional amendments — the Supreme Court has no authority to take those rights away, either.
Now let’s think about some of the Supreme Court’s recent decisions. One of America’s bedrock constitutional principles is the separation of church and state. It’s literally the very First Amendment — the beginning of the famous Bill of Rights. And yet this Supreme Court has ruled that prayer in schools is perfectly fine. So much for separation of church and state.
On one level, prayer in schools is a small thing. People praying does no real harm. But I am bothered by the precedent it sets. It batters down the separation of church and state. In other words, this Supreme Court is challenging the very idea of a secular democracy — one in which religion isn’t enforced by the state.
The real fireworks, though, come with the end of Roe. What does that decision really do? In one titanic blow, it removes rights from more than half the population. And it doesn’t help to call them “birthing people.” Women. They have suddenly lost the rights to expression, speech, association, movement, privacy, and more.
In what way? States who are vehemently anti-women are already trying to pass laws which make it illegal for women to leave the state. There goes freedom of movement. But how will we know why women want to leave the state? Well, we have to monitor and check what they say. There goes privacy. “Aiding and abetting” them is already being criminalized, too. There go freedoms of association, speech, and expression. Just talking with a woman about reproductive healthcare is something this Supreme Court is making a criminal act.
But how can that be constitutional? We all know — more or less every half-educated person in the world knows — what the US constitution says. Its bill of rights guarantees precisely the freedoms above — speech, expression, privacy, association, and more — as inalienable. Nobody can take them away. Not kings. Not the President. Not Congress. And not the Supreme Court.
That is the entire point of the constitution, in a very real sense. It isn’t just a blueprint for the procedures of having elections. It’s much more than that. It is a guarantee. Of what can’t be done to you by the state, and conversely, what freedoms you must always enjoy as rights that nobody can take away from you. This is what it means to be a “citizen” — to have this set of rights, which are guaranteed by the constitution. The constitution sets out limits, in other words, that even government must adhere to. Nobody can take this away from the people.
That is what freedom — in the American sense — is. So what happens the Supreme Court goes rogue against the constitution itself?
Let’s do another example, to illustrate just how problematic this situation is for a democracy — a Supreme Court attacking and undermining the constitution it’s supposed to guarantee.
The fanatical justices on the bench have said out loud that they’re going to come for contraception and gayness next. But how do we know? How do we know if a woman’s using contraception (or a man, for that matter)? We have to check. Maybe now there’s a legion of secret police, seizing data from menstrual tracking apps — which are already willing to hand that data over. Bang. Now we can get you. Maybe people’s buying histories — easy to buy on data markets — are monitored and checked algorithmically. Easy. Too easy.
What about being gay — remember, they’ve said they’re coming to “correct the errors,” and that’s a literal quote, not just for gay marriage, but being gay. But how do we know if someone’s gay? Maybe, like in Virginia, we set up a tip line. Now you can inform on teachers and kids. I think that kid’s gay. He dresses funny. He acts “like a girl.” He doesn’t like sports, he likes art and music. Turn him in. Turn his family in. Now the family’s under surveillance. Social services show up. Knock-knock, hello. We have a report that your child might be gay. Is this true? Prove that they’re not.
If you think I’m kidding, that’s already happening to trans kids in Texas. Feel what you like about wokeness, but I think all thoughtful people can agree: the state literally intruding into people’s personal lives and forcing them one way or another is profoundly and dangerously wrong.
There go all the basic freedoms again. How do we know if you’re gay? Maybe you go to the wrong bar, cafe, club. Maybe you read the wrong books. Maybe people just think so. This was life before being gay was legal, by the way. A constant battle against suspicion, in which the slightest mistake could destroy your life.
In both these examples — contraception and gayness — basic rights simply disappear. There is no way — none — to “know” if someone is gay or using contraception or what have you without violating nearly every single right guaranteed by the first ten amendments. Privacy, expression, association, speech — all gone. Bang. Just like that. In just these two obviously upcoming decisions alone, the entire Bill of Rights disappears. And in its place, a far more sinister society begins to emerge. One made of the shadow institutions of totalitarian societies. Secret polices, informants, tip lines, knocks on doors — and people living in secrecy and fear right back.
This is how a democracy dies.
Why is the Supreme Court doing all this? The answer to that is very simple. For the sake of fundamentalist religion. And that violates the very first amendment, the bedrock principle of the entire US constitution. Think about how dangerous and pernicious that is for a moment.
The rationale the Court’s given goes like this: things which aren’t “deeply rooted” in the nation’s history aren’t…to be had. Enjoyed. But that is not its job. The Supreme Court isn’t to be a crackpot historian, making a warped reading of history, and then deciding if something is “deeply rooted” or not. Who even knows, and who can say? Many things are “deeply rooted” in American history, like slavery and hate. Many things are deeply rooted in history, period. Feudalism. Misogyny. War. Shall we go all the way back to the Stone Age, then? Who decides?
This isn’t a rationale anyone should accept. Because it is the Supreme Court saying right out loud that it’s not willing to do it’s job. Its job is to defend the constitution. It isn’t to substitute “history” for the constitution. The constitution’s entire point was to defend (at least some) citizens against history, ironically — which until then had been made of tyranny, violence, iniquity, and ignorance.
Do you see how this is a serious and grave constitutional crisis now?
The Supreme Court has gone rogue. It is doing a very, very different job than the one it was tasked with. It isn’t defending the constitution anymore. It’s attacking it. It’s undermining it. One massive blow at a time, it’s stripping basic rights away from Americans — the very ones which the constitution holds are inalienable. It’s doing that in the name of fundamentalist religion, justified by a crackpot theory that things need to be “deeply rooted in history” — not the constitution itself.
And it’s a judicial coup in the sense that instead of defending the basic inalienable rights the constitution guarantees to Americans, the Supreme Court is the very one ripping them away.
Here we have a major, major problem for a democracy. What do you do when the final guarantor of the constitution — the Supreme Court — is the very one who has decided to attack and undermine it? What do you when the last line of defence for the constitution is the very set of hands tearing it up?
Nobody knows.
This is a deeply serious constitutional crisis precisely because it almost never happens. In most countries, politics never gets this broken. Even in hardcore failed states, the Supreme Court is usually the last line of defense. It still contains vaguely thoughtful people who are interested in preserving some last bastion of democracy and freedom. That’s because it’s usually hard to get to. It’s not like buying your way into a representative’s office — easy enough. It takes a lifetime of work to get a seat on it, even in failed states, and so it’s usually the last functioning institution left.
Let me say that again. Even in failed states, the Supreme Court is usually the last functioning institution left. That’s also because even the extremists usually want a fair referee — knowing that the other side might seize power one day, right back.
But in America, the Supreme Court has actually and really fallen. That’s incredibly grave. You have to look at situations like the Taliban or Iran or Russia to find cases where Supreme Courts have been replaced by fundamentalists or fanatics. That’s how bad this really is.
There’s no easy way out now. We all know what the Democrats have to do. Reform the court. Abolish the filibuster, and expand the court. Do away with lifetime tenure. Don’t make it so easy to get a seat on it. Make the Supreme Court functional again.
But.
The Democrats, as usual, show no signs of life. They appear totally uninterested in doing any of the above. That’s incredibly bad. Because it tells us that either they don’t understand the above — or worse, they don’t care. Just “voting” isn’t going to fix this. A rogue Supreme Court actually needs to be challenged, reformed, and made to do its job again. That job is defending the constitution and the rights it guarantees, not stripping its very inalienable rights away from people.
Every American should understand the problem they’re facing now — a judicial coup and a constitutional crisis — carefully and intimately. What’s left of democracy depends critically on undoing them.
Umair
July 2022
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