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By Phil Roeder — Flickr: Supreme Court of the United States, CC BY 2.0,

Republicans do not get it yet. Americans are angry. is not just Democrats. Anybody with half a brain who follows politics and the courts knows what happened is hardly legitimate, even if technically legal. The courts are no longer a neutral third branch of government. Instead, they have become is a highly politized arm of the Republican Party. This is not unprecedented in American history. But we have not seen a highly conservative and radical high court since at least the 1930s. It was mild when compared to the end of the nineteenth century and the gilded age. That court was even more radical and in favor of corporate power. Am afraid the current court is more like that Supreme Court.

Amy Conney Barrett is now an Associate Justice of the Supreme Court of the United States. This is not about replacing a justice of the Supreme Court. It’s how it was done that that makes this an incredibly sad and dangerous moment in American history. When the courts lose legitimacy, we have a problem. At this point, both the Republican United Senate and the Supreme Court have lost it. Legitimacy matters for buy-in from the people. If you do not have it, this can get ugly. Just read the preamble to the Declaration of Independence if you doubt this. . The founding fathers led a revolution out of a sense of deep grievance. The country came to be from deep alienation and frustration with a home country that refused to even admit colonials were full British citizens with a right to representation. Read this as many times as you need and consider Democratic grievances about stolen seats.

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

The use of raw power by Senate Republicans to literally pack the courts with far-right activist judges, including the Supreme Court, is making Democrats and independents not just unhappy but angry. They are sowing seeds, but they will harvest the whirlwind.

Let me be clear about this. When the far-right claims the left wants to pack the court with doctrinaire activist judges, this is precisely what they are doing. It is projection at its finest. What we now have is one of the most activist courts in many decades. They are not there because they believe in the Constitution as written by the founders, all protests to the side. They are there to prevent progress and regulations that would protect citizens. Their job is to prevent regulations that will also protect the environment in the era of a climate emergency.

Originalism is Dead Letter.

Let’s be honest. If we wanted to interpret the Constitution as written, three of the nine justices would not be in the Supreme Court because they are women. the fourth one would not be there because he is Black. Nor was he considered a full citizen in 1789. It is that simple. He could be a Freeman, best case scenario. Or he could be a slave and property. His person would not count for more than three-fifths of an individual during the decennial census.

As to the three females on the court, one of the great frustrations of Abigail Adams was that the founders did not allow women to participate in public life. It literally took an amendment for women to legally cast a ballot. It took laws for women to be able to work, own property, and own a credit card. All this could be in danger in this far more conservative court. So one has to ask. Will the last of these flour justices turn the lights out on their way back to the 18th century? Yes, that includes Amy Coney Barret incidentally.

Trying to scry what the founders wanted is not that hard. We have papers, and memoirs,. Historians have done a very good job of painting life in the late 18th century for all of us. If that is the objective, why do we have a woman stating she wants to give up all her rights? Why do we have a black man, in a mixed marriage no less, also singing the praises of a slave-owning society? They are not. All this is cover for a nefarious far-right agenda. One that we know is not popular with most Americans. However, one that they have committed to. This is a society run by a minority, to impose the values of that minority and prevent anything that improves the lives and conditions of most of the country.

This is a court committed to corporate power over that of Unions, workers, or for that matter the environment. Far-Right radicals also believe in constraining access to the ballot. However, they use the word originalism as cover. Because if they believed in it, the newest justice would be staying home, not have a career, or vote for that matter. That was the original intent of the Founders. Nor would the vote be available to the vast majority of people who do not own property, or are white and mostly Christian.

The Democratic Response

this abuse of power should lead to a response. Democrats will control the House, the Senate, and the White House after the election. At this point, it is starting to be transparent. They will have the ability to change a few things. The question is will they? Republicans, as radical as they are, do not fear abusing power and breaking norms. Then they turn around and claim the other side is doing this.

The Republicans blocked over 300 nominees during the Obama years. They blocked Merrick Garland, by refusing to even have a single hearing in the Senate. They have behaved in ways that not only violate tradition but reflect an authoritarian bent. This is not just Donald Trump. It is the party that is sick and despises democratic norms.

So now Democrats have to act. The question is will they?

Democrats live under the fiction that they can compromise with far-right radicals that take advantage of this naivete every day of the week, and… let me correct it, all the time. It is time for Democrats to realize there is no compromise with radicals.. Democrats need to take a few actions to blunt the effect of the radical right.

Vice-President Joe Biden said that if elected he will form a bipartisan commission to fix the courts. That is a mistake. He cannot have members of a radical party that has worked for decades to break norms help him fix the courts. He can have conservatives, and there are plenty who have left the radical Republicans. There is the Lincoln Project for example. There is a good chance that these former members of the party are the core of a new conservative party. They are far more reasonable than the radical people they have been trying to work with for now over two decades.

This is another example of the Democratic denial that Republicans will take advantage of this commission to either advance their unpopular policies or scuttle any effort to reform the courts. In reality, this is not just a punt on the part of Biden, but also a way to prevent something that could mobilize the right. He is misreading the room, since the right wants to destroy any progressive change, however, slow it comes. They believe Democrats lack legitimacy.

The other problem Democrats have is that they are seen as the party that lacks a spine. They will roll over and not fight back This is not just a fear from younger activists, but it is based on long term reality, that has shifted politics in the United States to the right. They are afraid of what is proper and what slurs Republicans will use against them. The fact is that it does not matter what Democrats do, Republicans will anyway.

So we will wait with bated breath to see what Democrats will do to both restore some sanity to the courts, and legitimacy. What Republicans have done over the last eight years is achieve a generational goal. The courts serve as a barrier against any progress. They are also set to protect corporations from regulations and the voting public from going ot the voting booth. Democrats are about to achieve a historic election in a giant tsunami. But they could be prevented from doing what they need to do, for both the short term with the pandemic and long term with the climate emergency.

A little factoid is in 1789 the country was an agricultural nation. Corporations were not multigenerational affairs. If they broke the law, they could easily be dissolved. All this changed in the late 19th century.

Written by

Historian by training. Former day to day reporter. Sometimes a geek who enjoys a good miniatures game.

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