Warning: read this only if you are actually willing to do the minimal work necessary to understand the revolution that the Extreme Court of the United States is effecting right now. It can happen here, folks. It is happening. And this court is preparing the way. What it is up to is equivalent to the German Enabling Act of 1932. I think all of this extreme and frightening.
Let me be as clear about this as I can be. My reading of what the Extreme Court has been up to is NOT that it means to do away with the doctrine of stare decisis, though you will read many pieces in the popular media that claim that this is so. No. This court means to establish, with Dobbs v Jackson Women’s Health and West Virginia v. EPA, in this term, and with Moore v. Harper, in the next term, a new set of precedents designed to prepare the legal ground for meeting the conservative goals of
a) shrinking the federal government down to a size at which it can be drowned in a bathtub and
b) turning over power to state governments, many of which will become de facto theocracies under the new legal order the Extreme Court seeks to establish.
Let’s look at the three cases and see how each reduces the federal government (and importantly, reduces or eliminates and prepares the ground for further reducing or eliminating previously federally protected human rights).
Dobbs v. Jackson Women’s Health provides a template or boilerplate for eliminating not only the federal right to abortion but a) whole bodies of federal law and regulation related to unenumerated rights and b) the primary functions of agencies and departments that do that regulation and enforcement to preserve those rights.
WV v. EPA is a template or boilerplate for eliminating government agencies or departments (or parts of these) that promulgate regulations in areas over which the Congress has, according to the Constitution, primary authority. This Court is arguing that Congress can’t turn over to Executive Branch agencies or departments decision-making about matters left to Congress by the Constitution if the decisions made by those agencies or departments deal with “major questions.” The idea is that Constitutionally, some matters belong SOLELY to the legislative fiefdom and cannot be delegated, in whole or in part. So, for example, in WV. V. EPA the court ruled that the EPA, being an administrative agency, cannot force utilities to move toward cleaner energy sources, that Congress would have to authorize the EPA, specifically, to do that (something that, of course, the current Senate, with a 50 + Manchin block, would never do). And as with Dobbs, the Court doubtless means to generalize this ruling, in future rulings, thereby shrinking dramatically the power and scope of the administrative/executive branch of the federal government. The Court means to strip administrative agencies and departments of powers in full knowledge of the fact that Congress, being divided, will not step in to carry out the work formerly done by the Executive Branch (will not, for example, agree on laws with real teeth related to matters like climate-friendly energy sources or food safety). And again, the effect of that will be, with the federal executive and legislature and courts all out of the picture, to turn all this power back to the states.
And, finally, Moore v. Harper will enable the court to rule that the feds cannot pass legislation to protect voting rights because determination of how voting is to be conducted is entirely up to state legislatures under this extremist reading of the Constitution. Again, the effect will be to eliminate federal power and agencies/departments and turn this all over to the states. This is really important to Republicans going forward because the only way that they can hold onto power is by restricting voting rights, and the troglodytes on the Extreme Court want to ensure that Republican state legislators can do that.
All this is revolutionary and is meant to be. It’s the fulfillment of a dream that conservatives in America have had for a long, long time. They have long believed in state’s rights and in the federal government being a monster not envisioned by the founders. This Extreme Court is simply finally making good on the conservative dream to enshrine those beliefs in law.
And, btw, as with the various parallel attempted coups undertaken by Trump and his team (there were several of these), this has all been discussed on Steve Bannon’s War Room Pandemic podcast (or whatever he is calling his show; I have read that he doesn’t like his podcast being called a podcast; perhaps the term doesn’t sufficiently match his delusions of grandeur). Bannon recently devoted much of whatever his program is (podcast? cuckoo coup lollapalooza?) to this very topic–the ways in which work is underway to completely “dismantle the administrative state.”
Again, conservatives have been making these arguments for a very, very long time. Now, after a century of arguing that our expansive federal government is illegitimate, they finally have a supermajority on the court that agrees with them. The nationalist, fundamentalist supermajority on the Court sees the current program to shrink and drown the federal government as returning government in the U.S. to its original principles after a long period in which it veered off into weirdness never conceived of by the founders. THAT’S NOT a new argument. The conservative legal scholar James Q. Wilson, for example, spent much of his life making it. Our Original Sin, politically, according to Conservatives, was the expansion of federal government via an over-generous interpretation of the Interstate Commerce clause, Article 1, Section 8, Clause 3 of the U.S. Constitution, which gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Thus we find the feds involved in matters as diverse as regulation of tobacco and food and wetlands and emissions.
Know your enemy, folks. Understand what the conservative beef is. And don’t underestimate them or it.
In short, this Court is in the process of establishing precedents that amount to a legal revolution that returns U.S. government, they believe, to what as envisioned by the founders: independent state governments in loose federation. So, the Extreme Court will claim to be reaffirming precedents, but ones from long, long ago, before the courts derailed and created a huge federal government that can have its hands in everything, from marriage law to regulation of tobacco and wetlands.
Those of you old enough to remember the Civil Rights Movement of the 1960s will understand what I mean when I say that this could most appropriately be designated The Nullification Court.
Again, and in summary, this court plans to reduce, dramatically, the scope and power of the federal government and place power over many matters back into the hands of state governments, many of which will function as small, independent theocratic states with the court’s imprimatur and blessing. The folks at The National Review and The Wall Street Journal and The American Enterprise Institute, who are hip to this, can barely contain their glee.
This is the disaster that Trump has wrought. But it’s too complicated for Americans to follow. They are too busy thinking about the next Spiderman movie or Elon Musk sex life tabloid release. So, the fascist revolution will happen here while no one was paying any attention.