“It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness…”
https://EN.WIKIQUOTE.ORG/WIKI/A_TALE_OF_TWO_CITIES
As we approach the 2024 Election Cycle — where we pick a president, members of the House of Representatives and 1/3 of the Senate — it still feels like the Best of Times and The Worst of Times.
“Best” for us reasonably affluent retired folks (What mortgage? New stock market highs.).
“Worst” in terms of reasonable choices for elected officials — and for reasoned discussions about issues instead of defamation of personalities and proclivities.
We do not directly vote for the members of the Supreme Court. However, watching the accretion of recent decisions, I feel compelled to comment.
Perspective of a Retired Professional
As someone who was baptized and raised within the domain of the Roman Catholic Church, and as someone who is old enough to remember the Mass in Latin, I see disturbing judicial drift in the most recent and threatened future rulings of the Supreme Court.
The current Supreme Court claims to be influenced by:
- Textual analysis of the Constitution and, perhaps, its amendments.
- Original intent of the Founding Fathers.
Textual Analysis is—from the perspective of the current Court—simple: the words mean what they say. However, the academic community, both English departments and disciplines of social science, have used textual analysis to uncover deeper meaning and intent, not mere surface simplicity.
The Original Intent of the founding fathers was to create a Republic where voting was restricted to European gentlemen who had a Christian religious affiliation. No women, no three-fifths human African slaves.
The current Court is using both frameworks, Textual Analysis and Original Intent, to craft meanings and interpretations from a frame of reference that precedes any of the 27 amendments to the U.S. Constitution, amendments which include the Bill of Rights.
Explicitly, the Constitution guarantees separation of Church and State. And Thomas Jefferson, writing the Freedom of Religion law of the Constitution of Virginia, included freedom from religion as a needed condition for a more perfect union.
Article I. Bill of Rights
Section 16. Free exercise of religion; no establishment of religion
That religion or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and, therefore, all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other. No man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but all men shall be free to profess and by argument to maintain their opinions in matters of religion, and the same shall in nowise diminish, enlarge, or affect their civil capacities. And the General Assembly shall not prescribe any religious test whatever, or confer any peculiar privileges or advantages on any sect or denomination, or pass any law requiring or authorizing any religious society, or the people of any district within this Commonwealth, to levy on themselves or others, any tax for the erection or repair of any house of public worship, or for the support of any church or ministry; but it shall be left free to every person to select his religious instructor, and to make for his support such private contract as he shall please.
.
Given the connections between most of the Justices and the Catholic Church, SCOTUS also seems influenced more by a specific theological focus than by a rigorous adherence to a secular document intended “to form a more perfect Union,”
Preamble to the Constitution: {with original spellings}
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
https://constitutioncenter.org/the-constitution/preAboutamble
Earlier Rulings
Establishing justice and ensuring domestic tranquility are two processes that I have watched unfold during my early life:
Brown v. Board of Education 1954
In this milestone decision, the Supreme Court ruled that separating children in public schools on the basis of race was unconstitutional. It signaled the end of legalized racial segregation in the schools of the United States, overruling the “separate but equal” principle set forth in the 1896 Plessy v. Ferguson case.
.
Griswold v. Connecticut 1965
In Griswold v. Connecticut (1965), the Supreme Court ruled that a state’s ban on the use of contraceptives violated the right to marital privacy. The case concerned a Connecticut law that criminalized the encouragement or use of birth control.
https://www.thirteen.org/wnet/supremecourt/rights/landmark_griswold.html
Roe v. Wade 1973
Roe v. Wade, 410 U.S. 113 (1973),[1] was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States generally protected a right to have an abortion.
https://en.wikipedia.org/wiki/Roe_v._Wade
Obergefell v. Hodges 2015
Obergefell v. Hodges, 576 U.S. 644 (2015) (/ˈoʊbərɡəfɛl/ OH-bər-gə-fel), is a landmark decision of the Supreme Court of the United States which ruled that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment of the Constitution.
https://en.wikipedia.org/wiki/Obergefell_v._Hodges
The last three decisions were in harmony with a liberal interpretation of the U.S. Constitution, but not in harmony with pronouncements from the Vatican.
Current Rulings
I now inhabit a different world—one where the blessings of liberty seem under siege.
From 1949 to 1987, the Federal Communications Commission had a rule called the Fairness Doctrine. It provided that for broadcasting license renewals by radio and TV stations, the FCC would consider whether a licensee had covered both sides of controversial public issues.
https://dividedwefall.org/fcc-fairness-doctrine/?gad_source=1&gclid=CjwKCAjwydSzBhBOEiwAj0XN4KHwgR_xfW69d4VkkFEVusuRGFPXlAvl9gcupnFb72Dsp_sD9rYuVRoCdFQQAvD_BwEAbout
The combination of the loss of the Fairness Doctrine and the emergence of monetized social media has bolstered the polarization of America. As my memories of Walter Cronkite and Huntley-Brinkley and MacNeil/Lehrer fade, my concern for the plight of the Fourth Estate expands. We may be returning to the meaning of its etymology:
The term Fourth Estate or fourth power refers to the press and news media both in explicit capacity of advocacy and implicit ability to frame political issues.[1] The derivation of the term arises from the traditional European concept of the three estates of the realm: the clergy, the nobility, and the commoners.
We appear to be hovering on the brink of something quite different from a Republic composed of an Executive branch, a Congress, a Supreme Court, and ethical journalism. We appear headed for a fascist state ruled by a narcissistic sociopath enabled by sycophant evangelical legislators and a compliant clergy/SCOTUS.
Perhaps, given the Textual Analysis and Original Intent approach, SCOTUS could require an original version of the Ten Commandments for the walls of Louisiana classrooms:
Regulations in a Complex Century
Not only has the Court moved in the direction of Vatican-based interpretations of Scripture, but it has also amassed for the Judiciary powers beyond what precedent dictates. In overturning Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984), the Supreme Court has decreased the reasoned effectiveness of regulations that ensure ethical guidance for modern life (FDA, FTC, USDA, EPA, …).:
In a momentous decision that will affect vast swaths of American life, the U.S. Supreme Court on Friday [June 28, 2024] undid decades of regulatory law, making it far more difficult for federal agencies to issue rules and regulations that carry out broad mandates enacted by Congress. The vote, along ideological lines, was 6-to-3.
Writing for the court’s conservative supermajority, Chief Justice John Roberts explicitly overturned a 40-year-old precedent that had instructed lower court judges to defer to reasonable agency interpretations of ambiguous federal statutes. Acknowledging that some of the court’s most conservative members had initially proposed or embraced that idea, Roberts said that time and experience had proved the approach “unwise,” “misguided,” and “unworkable.”
The 1984 decision, he said, is contrary to the Framers’ understanding or our form of government. Roberts went on to quote Chief Justice John Marshall’s famous 1803 decision in Marbury v. Madison declaring that, “[i]t is emphatically the province and duty of the [judiciary] to say what the law is.” That, said Roberts, means that courts, not agencies, decide what the law is, and if Congress wants to do something different, it should say so explicitly.
Justice Elena Kagan took the rare step of announcing her dissent from the bench on behalf of the court’s three liberals.
“Agencies report to the president, who in turn answers to the public for his policy calls,” she said. “Courts have no such accountability,” nor do they have the kind of expertise that agencies have to carry out broad mandates from Congress. Today, she said, a four decades-old “rule of judicial humility gives way to a rule of judicial hubris.”
“As if [the court] does not have enough on its plate,” she added acerbically, “the majority turns itself into the country’s administrative czar,” giving itself the power to determine what rules will govern AI, or the nation’s health care or transportation systems, or even the environment. “That is not a role that Congress gave to [the courts],” Kagan asserted, but “it is a role this court has now claimed for itself, as well as for other judges.”
https://www.npr.org/2024/06/10/nx-s1-4998861/supreme-court-chevron-doctrine
As someone who was involved in drafting the Section 508 Standards, and engaged as a consultant in the interpretation and implementation of these standards for two Federal agencies, I remain convinced that regulators within agencies have more expertise in the arenas that they oversee than people with law degrees from prestigious universities. Undoubtedly, judges are intelligent and well educated, but their scope of expertise is not the same as that of bright, well-educated people who have worked and served within a field where specialized knowledge and understanding accrue over decades.
For another glimpse at the challenges of “Marbury v. Madison” declaring that, “\’[i]t is emphatically the province and duty of the [judiciary] to say what the law is,’” I suggest an examination of the “Tri-state water wars: Alabama, Georgia, Florida,” and the Supreme Court’s inability to create a coherent rule in the context of regulatory disputes:
Tri-state water wars: Alabama, Georgia, Florida
Advocating for the long-term health of two major river basins
Georgia scores new legal victory over Alabama in ‘water wars’ challenge
Judge rules federal plan to manage the Alabama-Coosa-Tallapoosa River Basin is lawful:
Georgia wins fresh ruling in water war with Florida, Alabama
[I’m sure that Chief Justice John Roberts bathes frequently, but I suspect that he is out of this depth in trying to rule on complex and contentious arguments about arcane water rights laws with conflicting precedents.]
Executive Power in a Complex Century
To bolster the power and authority of not only the Judicial branch of government, but also the Executive branch, the Supreme Court has now given virtual immunity to Presidents in their official decisions and actions.
Supreme Court Says Trump Has Some Immunity in Election Case
The Supreme Court ruled on Monday [July 1, 2024] that former President Donald J. Trump is entitled to substantial immunity from prosecution on charges of trying to overturn the last election, a blockbuster decision in the heat of the 2024 campaign that vastly expanded presidential power.
https://www.nytimes.com/2024/07/01/us/politics/supreme-court-trump-immunity.html
Highlights of the Supreme Court Ruling on Presidential Immunity
OPINION OF THE COURT:
“We conclude that under our constitutional structure of separated powers, the nature of Presidential power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office. At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is also entitled to immunity. At the current stage of proceedings in this case, however, we need not and do not decide whether that immunity must be absolute, or instead whether a presumptive immunity is sufficient.”
…
OPINION OF THE COURT
“Taking into account these competing considerations, we conclude that the separation of powers principles explicated in our precedent necessitate at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility. Such an immunity is required to safeguard the independence and effective functioning of the Executive Branch, and to enable the President to carry out his constitutional duties without undue caution.”
As the blessings of liberty begin a steep descent, perhaps what we need on the walls of classrooms is not the Ten Commandments, but a bit of our original secular guidance:
Declaration of Independence
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.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.
https://www.archives.gov/founding-docs/declaration-transcript
For more on the Pursuit of Happiness, see
The Pursuit of Happiness: How Classical Writers on Virtue Inspired the Lives of the Founders and Defined America Hardcover – February 13, 2024 by Jeffrey Rosen (Author)
Music Update
In 2019, I did an Xmas Carol parody of Chestnuts Roasting on an Open Fire.
An Update seems in order –
Trump’s Nuts Roasting on An Open Fire
Trump’s nuts roasting on an open fire
Jack Smith nipping at his ass
Yule-tide carols being sung by a choir
Inditements cut like shards of glass
Everybody knows the Donald is a bigot
Hates those rapists from down south
Tiny tots with their eyes all hollowed out
Will have no food to put into their mouth
They know that Trump is on his way
He’s loaded lots of tax cuts for the rich onto his sleigh
And every mother’s child is gonna cry
Because universal health care will never get to fly
And so, I’m offering this simple phrase
To kids from one to ninety-two
Although it’s been said many times, many ways
Donald Trump was really screwing you
And so, I’m offering this simple phrase
To kids from one to ninety-two
Although it’s been said many times, many ways
Convicted felon’s gonna keep on screwing you
Best of Times, Worst of Times 