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The Supreme Court is stacked against democracy

Supporters of President Donald Trump participate in the Million MAGA March  to protest the outcome of the 2020 presidential election, in front of the US Supreme Court on December 12, 2020 in Washington, DC. (Photo by Olivier Douliery / AFP via Getty Images)
Supporters of President Donald Trump participate in the Million MAGA March to protest the outcome of the 2020 presidential election, in front of the US Supreme Court on December 12, 2020 in Washington, DC. (Photo by Olivier Douliery / AFP via Getty Images)

A violent attempted coup 16 months ago failed to overturn a presidential election, but the racketeering enterprise that is the modern Republican Party has, by stacking the Supreme Court with partisan hacks, succeeded in defrauding Americans of their right to majority rule.

In a mind-numbing flood of rulings, an illegitimately constituted and brashly emboldened conservative majority on the Supreme Court this month rescinded a woman’s constitutional right to terminate a pregnancy, subverted a state’s right to control guns within its borders, breached the wall between church and state and eviscerated the power of the government to combat the existential crisis that is climate change.

The justices did so despite broad public support for reproductive rights, reasonable gun regulation, the separation of church and state and the urgent need for environmental protection. They did so disdainful that, across the street from the high court, witness after witness has been testifying to the seditious conspiracy to overturn the will of the people that was launched by a deluded president who appointed three of them and that culminated in the attack on the U.S. Capitol on Jan. 6, 2021.

Next term, the high court promises to meddle even more in the electoral process when it hears a case out of North Carolina that could alter the states’ conduct of federal elections. One can only imagine the pillow talk between Justice Clarence Thomas and his wife Ginni, who urged White House advisors and state legislators to fight to overturn the 2020 election.

The stunning decisions by the court’s majority and the remarkable revelations of the last few weeks to the Jan. 6 committee investigating the Capitol riot have much in common. The intellectual inconsistency of the court’s constitutional “originalists” is of a piece with the incoherence of Donald Trump’s claims of a stolen election and the craven complicity in that Big Lie of Republican lawmakers willing to subvert democracy to advance a reactionary agenda soundly rejected by the American people when — by more than 7 million votes — they awarded the presidency to Joe Biden.

The intellectual inconsistency of the court’s constitutional “originalists” is of a piece with the incoherence of Donald Trump’s claims of a stolen election

Access to abortion is not a constitutional right, the originalist majority held in Dobbs, because abortion is not “deeply rooted in this Nation’s history and tradition,” a history in which, of course, women were long disenfranchised. The authority to regulate abortion belongs “to the people and their elected representatives” in the individual states, the court said.

But those people and those elected representatives have no such authority to restrict the right to carry concealed firearms because unfettered access to lethal weapons is constitutionally protected, in the view of the court that just struck down a century-old state law in New York Rifle & Pistol Association.

So much for history and tradition.

As far as the reliability of “elected representatives,” consider Sen. Mitch McConnell. As majority leader, he rammed through the confirmation of Amy Coney Barrett as an associate justice days before the 2020 presidential election, despite having blocked even a hearing on President Barack Obama’s nomination of Merrick Garland four years earlier because the Kentucky Republican deemed eight months “too close” to the election.

So much for intellectual honesty.

A day of reckoning is coming. Congress must suspend the filibuster and codify the right to abortion into federal law.

Consider, too, the 147 Republican lawmakers who refused on Jan. 6, 2021 to certify President Biden’s electoral victory despite more than 60 court decisions affirming his win and an attack on the Capitol that sent them scurrying to hide from the armed insurrectionists Trump goaded into violence and set loose that day. To say nothing of the spineless Republican congressmen and White House advisors who asked Trump for preemptive presidential pardons while declaring themselves innocent of criminal wrongdoing.

A day of reckoning is coming. Congress must suspend the filibuster and codify the right to abortion into federal law. Chief Justice John Roberts must require Justice Thomas to recuse himself from any case involving state and federal elections. Democrats must set aside their perpetual internecine warfare to focus on winning commanding control of the U.S. House and Senate this fall to arrest the damage.

Finally, Republicans must take an unflinching look at the debasement of the Grand Old Party. Leave it to Trump’s most deranged acolytes to overlook the evidence of seditious conspiracy that Cassidy Hutchinson, a former aide to Trump’s chief of staff Mark Meadows, so chillingly described in her testimony this week. The suggestions of witness intimidation put the rest of us in mind of nothing so much as the mob bosses who a very different Rudy Giuliani, in a very different time, made a very different reputation prosecuting.

“At this moment, we are confronting a domestic threat that we have never faced before — and that is a former president who is attempting to unravel the foundations of our constitutional republic,” Liz Cheney, the embattled Republican congresswoman from Wyoming, told an audience at the Ronald Reagan Presidential Library the other night. “He is aided by Republican leaders and elected officials who made themselves willing hostages to this dangerous and irrational man.” Republicans, she said, “have to choose.” They “cannot both be loyal to Donald Trump and loyal to the Constitution.”

As the religious-minded Supreme Court majority might say: Amen to that!

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Eileen McNamara Cognoscenti contributor
Eileen McNamara teaches journalism at Brandeis University. The author of a biography of Eunice Kennedy Shriver, she won a Pulitzer Prize as a columnist for The Boston Globe.

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