Grandpa, Tell Me About the Time the Supreme Court Picked a Fight with the Future

Major media outlets often describe the six justices who make up the far-right majority on the Supreme Court simply as conservatives, but they are much more than that. In a very real sense, they are revolutionaries, kindred spirits who are using their judicial power to remake America. And the fact a majority of Americans don't approve isn't slowing them down.

These six justices have strikingly similar judicial outlooks. Why wouldn't they? They all came of age as lawyers as part of the same Federalist Society clan. These are people who were bred from their earliest days in the law to be precisely what they are—ideological combatants, united in purpose, playing the role of judges. And when this united commitment is combined with the paucity of practical checks on judicial power, these six people are able to exercise something shockingly close to a dictatorial level of power.

The powers of the other, supposedly coequal, branches of government are chicken feed by comparison. The president, of course, exercises great power, but in a contest between the president and the Supreme Court, the Court always wins. The Court's primacy is baked in by the judicially created doctrine of judicial review. Congress can pass statutes. The president can sign them. But if the Supreme Court decides any of those statutes, or for that matter regulations or other governmental actions, are unconstitutional—it's game, set, and match.

By installing a Supreme Court prepared to constitutionalize right-wing dogma, the political right is stripping the generations that follow them of the freedom to decide for themselves what sort of society they will strive to achieve.

American democracy is in trouble. The reasons are many— extreme gerrymandering, voter suppression, unlimited (and often undisclosed) oceans of cash, much of it from billionaires and corporations. But these Supreme-Court-endorsed roadblocks to a functional democracy, as bad as they are, only go so far. If enough voters get mad enough, there is, at least for now, still enough small d democratic in our democracy to bring about change. Decisions of the Supreme Court that are based on the Constitution, on the other hand, are unassailable.

The retort to this is that judicial decisions can be overturned by constitutional amendments. Supreme Court justices can be impeached. For that matter, the president and Senate have the power to increase the size of the Court and thereby change its ideological bent. All of these potential checks on judicial overreach are enshrined in the Constitution. But anyone with an ounce of intellectual honesty has to concede none of them are politically realistic options in anything short of the most extreme situations imaginable.

A good example of the political impossibility of using these devices to restrain a runaway judiciary is playing out now in the scandal surrounding Justice Clarence Thomas. We all know how this will end. Thomas will stand firm, and eventually everyone will move on. We can scream all we want that Abe Fortas, a liberal justice, was forced to resign for far less egregious conduct. Indeed, many Democrats joined in the calls for him to resign despite the fact Richard Nixon, who was certain to nominate a Republican replacement, was president.

But we live in a different world today. It wouldn't matter if, to borrow Donald Trump's words, Justice Thomas was to "stand in the middle of Fifth Avenue and shoot somebody." The GOP would stand behind him. Thomas is their man and their vote on the Court. And they won't give that up, not with a Democratic president positioned to nominate the replacement. They didn't steal a Supreme Court seat from Barack Obama just to give it back now.

If you're still not convinced that these checks on judicial power are politically implausible today, remember what a somewhat less extreme Republican Court majority got away with in 2000 in deciding Bush v. Gore. Given the choice between letting a recount play out to see who actually won or simply installing George W. Bush as president, they went with Bush, the candidate they favored. No serious legal scholar even tries to defend the rationale applied by the Court. Even Richard Posner, who acted as the Supreme Court's chief defender after the decision, admitted the Court's use of equal protection to decide the case was indefensible.

But they got away with it, suffering no long-term damage other than a few scratches to the Court's reputation. And none of these supposed remedies were ever even seriously considered.

Bush then used the power thus given him to nominate two more right-wing justices, thereby solidifying the right's dominance on the Court. So armed, the newly invigorated and increasingly extreme Court upheld restrictions on voting rights, struck down part of the Voting Rights Act, and opened the door to limitless infusion of corporate cash into the political process. None of this would have happened if Al Gore hadn't been torpedoed by the Supreme Court and been in office to make the appointments. And without these antidemocratic rulings, there is little doubt Donald Trump would have lost to Hillary Clinton in 2016.

This, of course, is the same Donald Trump who then put three more extreme-right-wing justices onto the Court, thereby likely cementing the far-right's dominance for decades.

In short, the far-right justices helped build their own majority—and paid no real price for it.

But as they say, pride goeth before a fall. And ironically, it is this far-right dominance that makes it all but inevitable that a titanic battle, one likely to be damaging to the Court, is going to occur between the Court and a younger, mostly progressive, generation with an agenda of its own. An agenda that will put it in direct conflict with an activist Supreme Court.

What is happening here is nothing less than an attack by the old against the young. By installing a Supreme Court prepared to constitutionalize right-wing dogma, the political right is stripping the generations that follow them of the freedom to decide for themselves what sort of society they will strive to achieve. By all indications, the clear majority of this younger generation will work to create a society with fewer guns, more action on climate change, and greater guarantees of respect for diversity. But they'll quickly find themselves stopped cold—effectively told, "Be silent, children, Justice Alito will decide for you."

Millennials and Gen Zers will be asked to accept a situation in which, for decades to come, politically inspired legal opinions will prevent them from making changes a majority of them believe necessary in order to form a more perfect union.

There is every reason to believe their answer will be no.

And here's something those six far-right justices might want to consider. In a war between the future and the past, the future always wins in the end.

This content originally appeared on Common Dreams and was authored by Steven Day.

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