Author: Harvey Dzodin Former vice president of ABC-TV and political appointee in Jimmy Carter administration
When I was growing up in mid-20th century Detroit we were taught that the United States was, to quote founding father and second U. S. president John Adams “a government of laws, not of men”. Now with the Supreme Court of the United States (“SCOTUS”) overturning a woman’s federal rights to control her own body, we know that Adams was wrong and that the opposite is literally true. The ruling in Dobbs vs. Jackson’s Women’s Health represents the triumphal conclusion of a half-century of radical social and economic reactionary warriors who have relentlessly been successfully destroying the American Dream. It may well represent one of the final nails hammered into the coffin of the American experiment and the death knell of “life, liberty and the pursuit of happiness” for all but the richest, and most white-bread of men.
At the same time that I was studying Civics, the Democratic Party, was dominant. It was a heady time for those of us who believed in the promise of America’s Great Society to right America’s wrongs including civil rights, economic and educational inequality. Attending the 1964 Democratic Convention in August, I was moved by party’s domestic vision to achieve a more perfect union and thrilled that my party had won a landslide victory in November, especially against a far-right Republican reactionary, Barry Goldwater. He famously said in words that would be echoed by zealots storming the U.S. Capitol on January 6, 2021 that “extremism in the defense of liberty is no vice”. He also said that “I have little interest in streamlining government or in making it more efficient, for I mean to reduce its size. … My aim is to not pass laws, but to repeal them. It is not to inaugurate new programs, but to cancel old ones that do violence to the Constitution.”
Goldwater was soundly defeated but that stinging rejection of his conservative-libertarian philosophy planted the seeds for the sorry state America is in today. Those on the Radical Right vowed to spend whatever it took to reverse “a government of the people, for the people and by the people” and bend the Constitution to their narrow economic and political interests.
Flush with money from some of America’s richest and most selfish and reactionary families, they’ve wildly succeeded beyond their expectations. They have surpassed the fears of the few who noticed their rise, but who have done little to stop them.
One of their most effective tools is the Federalist Society for Law and Public Policy founded in 1982, and its subsidiaries, that advocate for a textualist and originalist interpretation of the U.S. Constitution. Simply stated, this means that their aim was to as much as possible force judges to follow the precise text of our 18th century Constitution and its subsequent amendments, and to try to make decisions based on what was in the minds of the drafters, especially where the powers were not clearly spelled out or addressed. The imprecision and impossibility of being able to do so reminds me of what Winston Churchill said in another context, that it would be like deciphering “a riddle, wrapped in a mystery, inside an enigma”.
When I attended Harvard Law School a half-century ago, professors like the now-retiring Justice Stephen Breyer taught us that the Constitution was a living, breathing document that mirrored the twists and turns of an unknowable future. Now the same document is seen as frozen in time looked at through rigid 18th century spectacles.
Whereas previous presidents vetted potential nominees through the prestigious American Bar Association (ABA), the Trump Administration outsourced this task to the Federalist Society to shortlist candidates and nearly 90% of Trump’s appellate judges, all three of his Supreme Court Justices picks are members, as are Chief Justice John Roberts, and Justices Alito and Thomas.
While the ABA rated federal judicial nominees as “well-qualified” or “qualified”, the Federalist Society rates nominees by applying an ideological litmus test so some of its recommendations have neither relevant experience or wisdom. The most glaring example is Judge Neomi Rao, now on the influential D.C. Circuit Court of Appeals. She’s a political hack for extremists causes with zero prior judicial or legal experience.
To see how much damage these ideologues have caused, consider a small sample of the havoc they’ve inflicted on American society in this century alone.
In the 2000 election between Democrat Vice President Al Gore and Republican Texas Governor George W. Bush, the two candidates were virtually tied in “electoral votes”, the unrepresentative system mandated by the Constitution to award each state the number of votes equal to the number of its two Senators plus its members of the U.S. House of Representatives. Bear in mind that no Republican president since 1988 won a majority of all votes cast. The election came down to the Florida results and based on no particular valid reason, and without any precedent or constitutional power to adjudicate a state matter, the Conservative majority voted to halt the state vote-count and award the presidency to Bush. It was power politics plain and simple. The Democrats, rolled over, as they usually do, and accepted the result despite the questionable SCOTUS decision and despite Bush having a half-million less votes than Gore. Here no ox was gored, but it was Gore who decided to acquiesce to the detriment of the U.S. and its future.
The hard-ball playing “take no prisoners” Republicans played their dirty tricks time after time both off and on the Court. In March, 2016 President Barack Obama quickly nominated now Attorney-General Merrick Garland to replace Conservative icon Antonin Scalia, who had died a month earlier. But based on no precedent at all, just power politics, Republicans announced a novel policy, hoping that a Republican would win the presidency and nominate a Federalist Society nominee (as opposed to the centrist Judge Garland). Their phony stated reason was that seven-plus months was too close to the November election and that the American people should decide which president got to make the nomination—as if that was the only issue upon which the election turned. They were successful and Trump appointed Federalist Society’s Neil Gorsuch. But when liberal Ruth Bader-Ginsburg died six weeks before the 2020 presidential election, the Republicans rammed through Amy Coney Barrett’s nomination.
In both cases the impotent Democrats only cried crocodile tears. They shamefully wimped out. It reminds me of what American humorist Will Rogers said nearly a century ago and is still true today: “I don’t belong to any organized political party. I’m a Democrat”. These examples show that the much lionized American two-party system is broken and that there are no signs on the horizon of a rapid reversal down the slippery slope.
These are not the only instances, where reactionary selfish forces have weakened U.S. democracy via SCOTUS. In the name of free speech, but in truth to hide the tons of dark money that buy influence at the expense of ordinary citizens, SCOTUS effectively ended modest disclosure requirements of most high-donor political contributions. Similarly, they weakened unions, on the same grounds, by prohibiting mandatory dues collection from benefitting nonmembers. They have also weakened federal voting regulations designed to prevent blatant racial bias, and forbidden intervention in state-gerrymandered voting districts with the same goal. They have also weakened the vast federal administrative state that administer a variety of laws, including the environment, workplace safety, and even health regulations,
The right to an abortion is nowhere mentioned in the Constitution, perhaps because women are similarly absent there. While not treated as mere property like slaves, who are mentioned and counted for some purposes as 3/5ths of white men, women couldn’t vote or hold office, own land while married, enter many professions or report domestic abuses.
There is nothing whatsoever then stopping this radical majority to trample on other established rights since the opinion holds that Roe vs. Wade was “egregiously wrong from the start” as it was part of a flawed series of right-to-privacy cases that among other matters include the right to use contraceptives, to sexual privacy and to same sex and mixed-race marriages. All these are rights are at risk and could easily be undone the same way a garment often unravels if one pulls at a loose thread.
While a minority of religious zealots, will applaud the decision, the overall impact will further divide the splintered country I call the “Un-tied States of America”, that the radical right has been successfully splintering for the last half-century.
Gallup has tracked this issue since 1989 through last month. Opposition to overturning the federal right to abortion has averaged 59%, while support for doing so averaged 32%.
Pro-choice sentiment is now the highest Gallup has measured since 1995 when it was 56% — the only other time it has been at the current level or higher — while the 39% identifying as “pro-life” is the lowest since 1996.
Majorities of Democrats and independents have consistently favored keeping the federal right to abortion over the years, but Democratic support for keeping abortion legal has risen 10% since 2021. This coincides with a sharp rise in Democrats’ self-identification as “pro-choice”.
The issue is contentious with 80% of Democrats, 62% of independents and 31% of Republicans saying they do not want Roe v. Wade overturned. In contrast, 58% of Republicans, 34% of independents and 15% of Democrats do want Roe reversed.
It’s ironic that SCOTUS could be the branch of government that finally ends the American experiment. The now-again famous Alexander Hamilton saw SCOTUS as the “least dangerous branch” of government having neither funding or forces to execute is judgments. Yet, perhaps many feel today, that it is an untethered law unto itself with judges appointed for life, with no internal code of ethics or external oversight, except for the seldom-used power of impeachment.
Those many years ago we were taught that SCOTUS was composed of impartial judges, making decisions based only on the law. Few believe this fairy tale today. An October 2021 Grinnell College poll found that “62 percent of respondents believed that the Supreme Court’s decisions are driven by politics rather than the U.S. Constitution and the law.”
Is this the shining example of democracy that the U.S. wishes to spread? I sincerely doubt it.
