How to Evade The Supreme Court

                                                     By David K. Shipler 

              With radical regressives on the Supreme Court trying to drag the country back to the 1700s, the case is being made for ignoring, defying, or deftly evading rulings that clash with the values of modern society. These include abortion, guns, government regulation, voting rights, religion, and affirmative action.

Both legal and illegal approaches are on the horizon. Already, to parry the extremist justices, New York has taken advantage of loopholes in Justice Clarence Thomas’s sloppily written gun-rights opinion. The Democratic governor and legislative majority enacted into law restrictions on concealed-carry licenses that the Court’s majority surely hadn’t imagined, and a list of “sensitive places” where guns would still be prohibited—a much longer list than the Court presumably envisioned.

Similar efforts are underway in progressively-dominated state legislatures to enshrine abortion rights in statutes or amendments to state constitutions following the Supreme Court’s ruling (Dobbs v. Jackson Women’s Health Organization) that overturned Roe v. Wade and magically erased the right to abortion that the Court had earlier found existed implicitly in the United States Constitution.

The game now is going to be to outwit the justices, legally or otherwise. Some methods likely to be tried are in plain view, some under the radar.

 In the blatant category, nearly ninety elected district attorneys across the country announced in a joint statement that they would not prosecute violations of anti-abortion laws in their states. More unspoken refusals can be expected from prosecutors whose offices are already overworked with street crime and don’t want the cruel optics of jailing women and their doctors.

Civil disobedience by clinics willing to risk penalties to oppose the Court might be attempted if brave souls exist. And in some other areas of the law, surreptitious defiance or passive resistance is probable.

For example, after the Supreme Court strikes down race-based affirmative action, as it is certain to do next term in a case involving Harvard University, admissions officers will have little trouble continuing to give preference to minorities in the cloistered discussions that occur when picking the next freshman classes.

Those choices are pretty subjective right now. Grades and test scores have never been the whole story, especially at elite schools, which also look for the unquantifiable attributes of social commitment, community leadership, perceptive self-awareness, and personal success in rising above hardship, among other characteristics. A former Ivy League admissions director once told me that his department valued students who had worked for change, albeit just in their limited circles of school and neighborhood. Absent such qualities, even some class valedictorians with sparkling SAT scores were being rejected.

Since colleges are moving away from requiring or considering SATs, they’ll be able to disguise their racial preferences more easily, if they wish, to create the diverse classes many schools now see as benefitting not only students of color but also whites, who are exposed to the variegated features of the real world they will enter after graduation. University lawyers won’t approve, noted a friend in the legal profession, since they don’t want their clients to get sued. But that risk might not deter the entire generation of admissions officers who have worked hard to recruit bright kids from poor and minority backgrounds. (The Court could leave economic affirmative action intact, allowing colleges to give preference to low-income applicants without considering race.)

The Dying Constitution

 

By David K. Shipler 

              Conservatives like to deride liberals who believe in a “living Constitution,” which has stayed alive by applying its core principles to the evolving conditions of society. But the opposing view, that the Constitution must be interpreted only as the Framers supposedly intended, will not conserve anything. It will, if taken to the logical end now pursued by Republican extremists in legislatures and courts, strangle the founding document by cutting it off from the present, from the oxygen it needs to nourish the rights it is meant to preserve.

              The radicals on the right have formed a continuum of anti-constitutional movements that run from street thugs to election workers to politicians and to Supreme Court justices. Paradoxically, they cite the Constitution as their guide: the January 6 insurrectionists shouting their affection for a Constitution they’d obviously never read (in particular the Twelfth Amendment on Congress’s vote-counting process). Republican state legislatures organizing myriad ways to undermine the next elections. And the Supreme Court justices who are orchestrating an insurrection of their own by twisting the Constitution to fit their personal ideologies.

The “conservatives” in robes say they are keeping the Constitution as written, but they are actually making it all too malleable. They are turning it into a blank check for whatever policy they wish to inflict on American citizens, whether erasing women’s abortion rights, establishing in the public square a state-sanctioned Christianity (not Islam, for sure), or expanding practically everyone’s right to carry deadly weapons. All this has provoked accusations from the left that the Supreme Court is forfeiting its legitimacy, but the larger danger may be to the legitimacy of the Constitution itself.

America Without Heroes

By David K. Shipler

                There is a vacuum in America. Where leaders of virtue should reside, citizens find only a void, which echoes with yearning.

                So we have to invent heroes, and we rely on myth-making. These days, whenever a decent Republican dies, bringing that endangered species nearer to extinction, the firmament is flooded with rhapsodies of adoration: first, John McCain, now George H.W. Bush, their reputations amplified as counterpoints to Donald Trump. As the outpouring for Bush has shown this week, we love them more after they’re gone. They are never as pure in life as in death.

The hunger for heroes is one reason for Trump’s popularity among a core of supporters whose cheers cannot be dampened by his insults, his lies, his corruption, his racism, his misogyny, his impulsiveness, his ignorance, his hatreds, or his damage to the prized institutions of democracy. We are a needy people, and a large minority of us, it turns out, are excited by a large, brash personality who crashes through convention and waves his fist in the faces of more than half of his compatriots, plus most of the globe.

This infatuation with Trump’s autocratic bullying reveals a deep fault in American society. Coming when the country faces neither war, depression, rising crime, nor widespread terrorism, the readiness to be afraid is remarkable. Bedraggled families seeking refuge are “invaders.” Democrats threaten “mob rule.” Whites and men are victims. The world’s biggest economy is at the mercy of foreign countries. Imagine if the United States confronted actual risk, how vulnerable we would be to demagoguery—which can be a real danger in itself.

The search for heroes, then, can imperil security. It can let loose toxic impulses. It can undermine the constitutional system, which regards traditional institutions and venerable procedures, not individuals, as the protectors of the country’s freedoms. It can flit from one character to another, conferring Andy Warhol’s fifteen minutes of fame on the person of the moment.

Judge Gorsuch's "Magical Notion"

By David K. Shipler

            Late in the third day of Senate Judiciary Committee hearings on the nomination of Neil Gorsuch to the Supreme Court, Sen. Mazie Hirono of Hawaii summed up the judge’s picture of American jurisprudence with three words: “a magical notion.” She called his portrait of neutral, apolitical judges interpreting the law fairly and without personal bias a Norman Rockwell painting of the courts, as if he himself weren’t being promoted by the dark money of hidden billionaires, as emphasized by Sen. Sheldon Whitehouse in a tough interrogation.

            Through incisive questioning by Democratic senators (Republicans lobbed only softballs), Gorsuch stuck resolutely to his line that there were no “Republican judges or Democrat judges.” In this phrasing he repeatedly allowed his mask to slip, since the use of the noun “Democrat” as an adjective instead of “Democratic” is embedded in the lexicon of the right, designed to deny that opposition party the mantle of representing masses of citizens. He also took several opportunities to mention that judges appointed by “Democrat” presidents had joined him in opinions. In other words, the courts transcend politics.

            It would be a grand gift to the republic if it were always so. It often is, especially on lower courts, such as the Tenth Circuit Court of Appeals where Gorsuch has served for a decade, and which are bound by precedent. He and the two other judges on his panel relied on a particularly cruel precedent when they denied an autistic child payment for private residential educational services that the local school district could not provide. The earlier case in his circuit found that under the law, such schooling “must merely be ‘more than de minimus,’” Gorsuch wrote, adding the word “merely.”

A Constitution Informed by Social Change

By David K. Shipler

            If you spend time reading the Supreme Court’s majority and dissenting opinions in the landmark same-sex marriage case, a transcendent principle jumps out at you. It has little to do with the definition of marriage or the widening acceptance of homosexuality. Rather, it is the notion that society should be alive to its own injustices, even those unseen in the age when solemn constitutional texts were written. Later—nearly 150 years later in this instance—practices that were once acceptable emerge as violations of the rights set down at a very different time.

This is the crux of the ideological dispute between conservatives and liberals on the Court, and it is articulated in this case with unusual clarity. The conservative dissenters define liberty in the narrowest terms—to Clarence Thomas it means freedom from physical restraint and imprisonment, nothing more.

To Antonin Scalia, the clock simply has to be turned back to the date of the post-Civil War Fourteenth Amendment, whose clauses banned the states from denying any person “the equal protection of the laws” or depriving anyone “of life, liberty, or property, without due process of law.” Those were the provisions that the Supreme Court found were being violated by denying same-sex couples the right to marry.

Scalia scoffed. “When the Fourteenth Amendment was ratified in 1868,” he wrote, “every state limited marriage to one man and one woman, and no one doubted the constitutionality of doing so.” Case closed.

Compare that with Anthony Kennedy’s fluid view of liberty in his opinion for the slim 5-4 majority. Kennedy is not easily categorized as liberal or conservative; he is often a swing vote. Here, however, he effectively endorses the liberal concept of a living Constitution by emphasizing its place in a shifting world.