Is the U.S. Supreme Court the Biggest Threat to Our Democracy?

 By JIM SMITH

Conventional wisdom and conventional teaching of history tells us that the U.S. Supreme Court is the supreme law of the land, that the only branch of government which isn’t elected can tell the other two branches of government what is and is not constitutional.

But Thom Hartmann took his readers to school on this topic in his Oct. 20th column, The Hartmann Report.

According to Hartmann, “There is literally nothing in the Constitution that gives the Supreme Court the exclusive right to decide what the Constitution says or means and impose it on the other two branches of government, or on the rest of America. That is a power the Supreme Court took onto itself in that 1803 decision of its own, Marbury v Madison.”

Hartmann continues:

“Instead of putting the Supreme Court in charge of American laws, the Framers of the Constitution did the opposite: they put Congress in charge of the Supreme Court.

“As they wrote in Article 3, Section 2 of the Constitution:

“[T]he Supreme Court shall have appellate jurisdiction, both as to law and fact, with such Exceptions, and under such Regulations as the Congress shall make.

“Republicans know this well…. Most recently, in the wake of the Obergefell gay marriage decision, Republicans in Congress offered a law stripping from the Court its power to rule that gay people could get married. The Marriage Protection Act, which passed the House of Representatives on July 22, 2004 but failed in the Senate, explicitly says:

“No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, section 1738C or this section.”

[End of Hartmann excerpts]

We have heard that Congress has the power to increase the number of justices on the Supreme Court, but it turns out, according to the Constitution, that it has complete power over the Supreme Court and how it functions.

Now the Court has been overtaken by rightwing extremists poised, among other things, to make gay marriage illegal, to validate the power of the 30 Republican-controlled state legislatures to ignore presidential balloting and send electors of their choice to the Electoral College, to abolish all forms of local gun control, to end affirmative action by private colleges, and to further gut the 1967 Voting Rights Act.

If that sounds extreme, just consider what the Court has already done:

>   It overturned Roe v. Wade.

> In Citizens United, it allowed unlimited political donations by corporations and their billionaire owners.

> It gutted the power of the EPA to regulate carbon and water pollution.

> It gutted the Civil Rights Act and Voting Rights Act.

> It approved extreme gerrymandering in Wisconsin, Louisiana and Alabama that demonstrably disenfranchised voters of color.

> It eliminated the right of citizens to sue police officers who don’t read them their Miranda rights.

> It eliminated protection against unreasonable search and seizure by the Border Patrol or other federal officers within 100 miles of any border, including the ocean. No warrant necessary!

All those decisions and the ones to come in the Supreme Court’s current term are based on that 1803 decision in Marbury v. Madison in which the court empowered itself to overrule both Congress and the Presidency.

The backlash against Marbury was so great that the Court didn’t rule on the constitutionality of laws again for over 70 years. But today, it’s routine.

Congress has the power to rein in the Supreme Court, revoke its right to overrule its laws and even change the number of justices. Hartmann maintains in his Oct. 20th column that the time is now, because “if we fail, 2024 may be this nation’s last [popular] election for president.”

You can read the full Hartmann column at https://hartmannreport.com/p/are-scotus-republicans-in-on-a-plot.

 

If They Loved America, Wouldn’t Anti-Trump Republicans Speak Out?

  I’m reminded by the silence of mainstream Republicans of a quote often attributed to Edmund Burke: "The only thing necessary for the triumph of evil is for good men to do nothing."

I hesitate to use the word “mainstream” because it appears that the Republican Party is now the party of Trump and that the values (or lack of them) of Donald Trump have been adopted by the Republican mainstream. The rest of us should be frightened.

Thom Hartmann, the radio host and newsletter writer I admire for his articulate coverage of the decline of American democracy under the spell of Donald Trump, wrote a particularly cogent newsletter this Monday.

In the headline, Hartmann asks, “Is the Anti-Democracy Movement Reaching a Tipping Point in the US and Around the World?”

In it he notes: “Ukraine and Taiwan represent possible tipping points for democracy internationally, while Republicans passing laws that allow politicians to ignore the results of elections… could be a tipping point here.”

Hartmann notes that “virtually the entire Republican Party has rejected supporting democracy at home and supporting democratic governments abroad.”

This is no small matter. It is becoming clear that our Constitution is being used against us, and I see no way to avoid the death spiral of democratic rule in America.

Yes, the filibuster, which allows a minority of Senators to frustrate the majority, could be eliminated by a majority vote of Senators, because it is a Senate rule, not embedded in the Constitution. To their shame, two Democratic Senators prevented that from happening so that a voting rights bill they claim to support could pass without any Republican votes.

But even if the filibuster were eliminated, it does not change the structural issue built into the Constitution which gives the same vote in the Senate to Wyoming with fewer than 600,000 residents as it gives to California with over 39 million residents.  And the District of Columbia, which has more residents than Wyoming, has not one vote in the Senate (or in the House of Representatives).

Because our electoral system is under so much discussion since the former president started claiming his election was stolen through massive fraud — the Big Lie, as we call it — we are becoming more and more aware of how fragile our democratic republic is, and I’m not hopeful that there will be a happy ending, even if we see Trump and his cronies go to jail, as they should, for the many crimes that are coming to light thanks to the diligent work of the Jan. 6th committee and multiple prosecutors in New York and now Georgia.

My Republican mother and father, for whom integrity, civility and respect for the law were paramount (and instilled in us children), would be astounded at how our country is being brought down by the opposite traits of a single man who boasted that he could murder someone in broad daylight on Fifth Avenue and not lose a single vote.

The trendlines are all going in the wrong direction. Income inequality is on the rise, with the 10 richest billionaires doubling their wealth during the pandemic, while the government had to print money just to keep the bottom 99% above water. Non-partisan election officials are being terrorized by death threats and their jobs taken over by right-wing partisans. Legislatures are passing laws restricting ballot access and preparing to declare fraud if they don’t like the next presidential vote and send their own slate to the Electoral College. Tucker Carlson is convincing his viewers that we should support Russia instead of Ukraine. Where does this madness end?

As a wealthy white American, I have little to lose as long as I keep quiet in Trump’s new America, but it’s not an America I wish to live in.

 

Democracy Is Looking More & More Like an Experiment -- That Could Fail

By JIM SMITH

As a Baby Boomer, I grew up taking democracy for granted, sort of like how a fish takes water for granted. We elected class presidents in school. We held mock United Nations meetings. Every public office was either elected or appointed by elected officials.

In school we had classes in civics. We learned how democracy came about, how it works, and about other models that oppose democracy. We also studied the religions of the world, even in parochial schools.

Elected officials were “public servants” whose tenure was based on maintaining the confidence of voters. Although there were party labels, each legislator voted in a deliberative atmosphere not dictated by his party leaders. "Party-line votes" were less common. 

We had a “middle class” and most politicians wooed the middle class by adopting policies under which the middle class would grow and prosper.

There were more romantic comedies and fewer action and horror movies. There were far fewer guns and much less promotion and acceptance of them.

When Ben & Jerry’s ice cream was founded in 1978, it had a policy that the highest paid executives should be paid no more than five times the lowest paid workers.

Racism, we now realize, was systemic, but hate crimes were rare because political leaders did not embolden those with racist attitudes to act them out in violent ways. The KKK and other white supremist groups existed but they were in the shadows, not recruiting others by appealing to latent racist feelings that we would be embarrassed or afraid to voice publicly.

It felt right to us, and our country was a model for the world. By the late 20th Century, democracy was ascendant, or so it seemed. The “American way of life” was peaceful, honest, rewarding to hard workers, and above all it felt fair. Anti-trust legislation had “busted the trusts,” and unions — the honest ones — built up the middle class, raising wages across the board within a democratic framework.

But life has changed, hasn’t it?

Those who earned or inherited millions of dollars have figured out how to buy democratically elected legislators and get them to vote based on personal interest (campaign donations and more) rather than based on the public good.

They became masters at manipulating the middle and working classes to vote against their financial interests in exchange for promoting their inner prejudices. Fear, they learned, was the best tool for gaining the support of people while working against what used to be their needs and wants. They were able, for example, to sugar coat massive tax cuts for the rich with minor tax cuts for those in the lowest tax brackets.

The Citizens United decision by the Supreme Court legalized unrestricted political donations by corporations, giving us what we have today — a Congress which is owned lock, stock, and barrel by the National Rifle Association, voting against policies like universal background checks which most Americans, including NAR members, support. Why? Because the NRA has been bought, lock, stock, and barrel, by the manufacturers of guns.

Ben & Jerry’s abandoned its five-to-one ratio policy in 1994 when it recruited a new CEO. Today, it’s common for the pay of a CEO to be several thousand times the pay of line workers for the same company — and to get a bonus even when the company is suffering financially and laying off workers. The income gap between rich and poor is obscene now, a condition that in previous times would have led to revolution.

During the French Revolution, Marie Antoinette, when told the peasants had no bread, famously said, “Let them eat cake,” showing how out of touch royalty was. Today it’s different. Certain leaders act on the knowledge that constituents will even suffer hunger if you appeal to their fears of minorities, of crime, and of “socialism,” ignorant of how socialism might serve them.

It’s clear to many now, including me, that the “American Experiment” is just that — an experiment. And experiments can fail. Ours appears to be failing due to the manipulated ignorance of the general population, exacerbated by the death of local newspapers and the purchase of big city dailies by hedge funds interested in profit, not in serving the public good.

My thanks to the readers who support this column through my GoFundMe campaign at www.FundTalkingTurkey.com.

 

A Must-Read Article From The Guardian: "The next US civil war is already here – we just refuse to see it"

Here's the link: https://www.theguardian.com/world/2022/jan/04/next-us-civil-war-already-here-we-refuse-to-see-it

Here are some excerpts: 

The right has recognized that the system is in collapse, and it has a plan: violence and solidarity with treasonous far-right factions....

The legal system grows less legitimate by the day. Trust in government at all levels is in freefall, or, like Congress, with approval ratings hovering around 20%, cannot fall any lower. Right now, elected sheriffs openly promote resistance to federal authority. Right now, militias train and arm themselves in preparation for the fall of the Republic. Right now, doctrines of a radical, unachievable, messianic freedom spread across the internet, on talk radio, on cable television, in the malls....

Under such conditions, party politics have become mostly a distraction. The parties and the people in the parties no longer matter much, one way or the other. Blaming one side or the other offers a perverse species of hope. “If only more moderate Republicans were in office, if only bipartisanship could be restored to what it was.” Such hopes are not only reckless but irresponsible. The problem is not who is in power, but the structures of power....

An incipient illegitimacy crisis is under way, whoever is elected in 2022, or in 2024. According to a University of Virginia analysis of census projections, by 2040, 30% of the population will control 68% of the Senate. Eight states will contain half the population. The Senate malapportionment gives advantages overwhelmingly to white, non– college educated voters. In the near future, a Democratic candidate could win the popular vote by many millions of votes and still lose. Do the math: the federal system no longer represents the will of the American people.

The right is preparing for a breakdown of law and order, but they are also overtaking the forces of law and order. Hard right organization have now infiltrated so many police forces – the connections number in the hundreds – that they have become unreliable allies in the struggle against domestic terrorism....

Just consider: in 2019, 36% of active duty soldiers claimed to have witnessed “white supremacist and racist ideologies in the military”, according to the Military Times....

The right has recognized what the left has not: that the system is in collapse. The right has a plan: it involves violence and solidarity. They have not abjured even the Oath Keepers. The left, meanwhile, has chosen infighting as their sport....

It would be entirely possible for the United States to implement a modern electoral system, to restore the legitimacy of the courts, to reform its police forces, to root out domestic terrorism, to alter its tax code to address inequality, to prepare its cities and its agriculture for the effects of climate change, to regulate and to control the mechanisms of violence. All of these futures are possible. There is one hope, however, that must be rejected outright: the hope that everything will work out by itself, that America will bumble along into better times. It won’t.

It’s Hard to Be an Optimist About the Future of Our Country, Isn’t It?

This is an expanded version of the column published Nov. 25, 2021, in the Denver Post’s YourHub section.

First of all, I realize this column is appearing on Thanksgiving Day. New readers need to know that “Talking Turkey” is not a food column. The name originated when I ran for mayor of New York in 1981 against Ed Koch and published a campaign newspaper by the same name.

In this week’s “Real Estate Today” column, I wrote about what I’m thankful for. I didn’t mention, as I could have, that I’m thankful (indeed, blessed) to have been born in America, which, for most of my life, has been a beacon of democracy. Unfortunately, that beacon is fading, as recently documented by International IDEA in a report on “The Global State of Democracy” which put it this way: “The United States, the bastion of global democracy, fell victim to authoritarian tendencies itself, and was knocked down a significant number of steps on the democratic scale.” 

Unfortunately, because the rest of the world has always looked to the United States as model, we have witnessed anti-democratic forces emboldened worldwide during the Trump administration. This is similar to how Donald Trump himself emboldened alt-right and white supremacist organizations to come out from the shadows, most notably in Charlottesville’s “Unite the Right” rally.

Remember how Michelle Obama was lambasted following her husband’s election in 2008 when she said, “For the first time in my adult life, I’m really proud of my country.” She, as a black woman, had good reason to make that statement, but right wingers were happy to use it against her.

Well, for the first time as an adult, I can say that I am no longer proud of my country. It may have survived the attempted coup of January 6th, but the ground work is being laid to “elect” Donald Trump or some other fascist wannabe in 2024 regardless of the popular or Electoral College vote.

     That’s right. Maybe you have heard about the John Eastman memo which laid out how Republican-controlled legislatures could, in accordance with the Constitution, declare their popular votes for president invalid and send their own slate of electors to Congress for approval. Failing that, the Constitution allows for the presidential vote to be thrown to the House of Representatives if the Electoral College fails to produce a decisive vote as a result of those contested slates of electors. Each state gets one vote, regardless of population, and there are 25 states with a majority Republican delegation, possibly more after the 2022 mid-terms, to cast their one vote for the Republican.

The recipe for overturning a presidential election failed in 2020 only because it was conceived too late — no Republican controlled state had acted in time to send a competing slate of Trump electors to the Electoral College. That recipe could, however, work for the 2024 election, so the groundwork is being laid now.

Aggressive gerrymandering by those Republican-controlled legislatures is part of that groundwork. Currently, 32 state senates are controlled by Republicans (red states in map below), compared to 18 by Democrats. The breakdown in state houses is similar: 29 to 19, with one state, Alaska, sharing power. (The total is 49, because Nebraska has only a senate, not a house.)

We are truly in a downward spiral toward a takeover of our country by followers of Donald Trump. This could spell the end of The American Experiment — the title of a recent best-seller by David M. Rubenstein, which I am now reading and heartily recommend.

Republicans have learned that they can’t win an election in which voting is facilitated in multiple ways, including mail-in voting. They know that’s what turned Colorado blue. So their strategy is to restrict easy access to the ballot.

As an anti-Trumper, I took heart in the fact that the former president, at his best, rarely exceeded the low-40s approval rating Joe Biden has right now, and was never over 49%. (See Gallup chart below.) The majority of Americans disapproved of him and it showed when Trump was voted out in 2020.

The way things are heading, however, it will no longer matter who gets the most votes.

This downward spiral toward right-wing, anti-democratic control of our government should concern every citizen who loves democracy and respects the rule of law.

By now we should all know the hypocrisy of Donald Trump’s labeling the mainstream media “fake news” and “the enemy of the people.” The real purveyors of fake news are their media outlets, and the #1 “enemy of the people” nowadays is Tucker Carlson, closely followed by Sean Hannity and Laura Ingraham.

The right-wing takeover of our country began in earnest when Donald Trump was elected and wholesale nomination and confirmation of arch-conservative federal judges was undertaken by Trump and Senate Majority Leader Mitch McConnell. I use the word “wholesale” on purpose. The nominees, all but eight with connections to the right-wing Federalist Society, were so numerous that they were bundled in Senate voting, not voted on individually. Several of those judges received “not qualified” ratings by the American Bar Association, but that didn’t matter. They passed the Federalist Society’s litmus tests for conservative opinions. Here's a link to a May 2020 New York Times analysis of Trump’s appointees — very revealing in its detail. By that date, a quarter of the judges on the appellate bench (last stop before cases go to the Supreme Court), were Trump appointees. Their political background was key to their nomination by Trump. Read that New York Times article.

Yes, the conservative shift in the Supreme Court is worrisome to liberals like myself, but the shift in the lower courts is just as worrisome. We are seeing gun rights expanded and abortion rights restricted. Voting rights are being severely restricted in Republican-controlled states, and there’s little hope that they will be invalidated by the courts.

Not surprisingly, Republicans are unapologetic about these developments. It’s not the party of my Republican parents, or probably yours.

Equally disturbing is the way in which our Democratic president is going against his own values for political reasons. As a Democrat, I’m confident that he would like to promote the New Green Deal, Medicare-for-All, and other issues voiced primarily by Alexandria Ocasio-Cortez and the other members of “The Squad.” But he can’t afford to be in the crosshairs of the right-wing, given its huge cable TV, talk-radio, and other megaphones.

All these developments have eaten away at my past optimism about continued forward movement on policies and issues which are important to me.

   Moreover, I’m not satisfied with how competent the Democrats and President Biden in particular are at countering the lies and distortions of the right wing. I admired Pete Buttigieg for his regular appearance on Fox News, including at least one Town Hall-type broadcast. I think both Joe Biden and Kamala Harris should offer themselves up to Fox News for a town hall broadcast. There’s no oother way that the Fox News audience will hear a response to the lies and distortions they hear from both the news side of that network and from their evening fear-mongers.

Happy Thanksgiving!

 

 

 

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