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.

"Make America Think Again"

--Sign at the March for Our Lives

By David K. Shipler

            Every big march has a personality and a mood. The 1963 March on Washington, where Martin Luther King Jr. declared, “I have a dream,” was the friendliest large crowd I’ve ever been in, with warmth and smiles and easy conversation among strangers—except during Dr. King’s speech, when the hundreds of thousands on the Mall fell quiet under the cadence of his hopeful appeal to the conscience of America.

            The November 1969 demonstration by the New Mobilization Committee against the Vietnam War, mostly grim and peaceful, disintegrated late in the day as militants in the Weather Underground threw rocks, bottles, and paint at the ground-floor windows of the Justice Department, and then at police officers who replied with volleys of teargas and nightsticks.

            The 1995 Million Man March, billed as a demonstration of atonement and renewal by African-American men, was conducted in an air of firm, morality-driven conviction and contemplation as speaker after speaker confessed, apologized, pledged, cajoled, preached, and promised.

            The 2017 Women’s March, the day after Donald Trump’s Inauguration, displayed all the difficult emotions of that moment for those who decried his election: defiance, bitterness, resentment, resolve—but with a tincture of dry wit represented in the hand-made pink pussy hats worn to mock Trump’s boastful claim to a pussy-grabbing habit.

            Today, the March for Our Lives in Washington was different. There was some wit in the signs, to be sure (“Trump Loves NRA Because It’s Easy to Spell”), and some laughter from the cramped crowds of teenagers and younger kids, of teachers and parents and other adults from the graying and limping to the lithe. We weren’t all solemn all the time. Just most of the time. It didn’t take a big push to get us to the edge of angry tears.

   

Looking For a Political Bell Curve

By David K. Shipler

            Here is a simple illustration of what’s wrong with Congress. The graph below, plotted from an assessment of Senators’ voting records by The New York Times, shows the deep chasm in the moderate middle where bipartisan compromise and true governing can take place. Both Democrats and Republicans are clustered far outside that center, making negotiation on major issues difficult. We have just seen a result of this in the stalemate over immigration.

 

Chart by David K. Shipler. Data Source: New York Times

            Voters of various stripes will surely look at this and say, well, I’d like even more Democrats to shift to that liberal left, or I’d be pleased to see more Republicans at the far right of the graph. Fine. When we get to the ideal world, count me in the first group. I’d be glad to see a more liberal, or “progressive,” drift. But the country isn’t built that way, and it cannot be led effectively from either end of the spectrum, or with the current barbell-shaped political distribution. We need a traditional bell curve, where the line bulges in the center and tapers off at both extremes.

            Around that central axis there would still be sharp disagreements between Republicans and Democrats over the size and function of government, the regulation of business, the environment, immigration policy, budget priorities for the military versus social benefits, the makeup of the judiciary, and other matters. But more members of Congress clustered near the center would indicate less dogmatism and more flexibility; they might even be willing to listen seriously to the other side’s arguments.

A Nation's Mental Illness

By David K. Shipler

            If the United States were a person, it would be involuntarily confined to a psychiatric institution as a danger to itself and others. Hopefully, it could eventually be cured. But for the time being, it displays a disconnection from reality, a tendency to hear voices of fantasy, an addiction to violence that it knows is self-destructive, and an inability to grasp the logic of cause and effect.

            No mass shooting is needed to reveal these impairments, but every time one occurs, as in Orlando over the weekend, it is a symptom of the national psychosis, seen in a parade of careless pronouncements, declarations, analyses, and proposals. Imaginary enemies are everywhere. Facts are powerless. Magic words are conjured up as remedies—“radical Islam” is what Donald Trump wants Obama and Clinton to say—as if some spell of witchcraft will neutralize the threat.

            Such behavior is not the mark of emotional health. National sanity, equivalent to civic responsibility, requires critical thinking to sort through the ambiguities and contradictions that come with reality. It assumes an instinct for self-preservation that will reject damaging practices, i.e., a recovering alcoholic’s avoidance of alcohol, or a violent individual’s avoidance of weapons. It demands deferred gratification, long-term planning, and an understanding of the consequences of one’s actions.

The United States demonstrates some of these attributes some of the time, but not most of them most of the time. If it had a single brain, it would be diagnosed as paranoid, manic-depressive, schizophrenic, and yet rational and well adjusted all at once. (I checked this with a prominent psychiatrist friend, who confirmed the finding.) That brain would be so torn between oscillating impulses of dysfunction and functionality as to be paralyzed and unable to take care of its own interests except in rare instances.

Mixing Opinion into News

By David K. Shipler

            The New York Times violated a worthy tradition today by publishing an editorial on its front page, above the fold, in a space previously reserved for facts and analysis, not opinion. It was a mistake, and I’ll bet I’m not the only former or current reporter for the paper who hopes it doesn’t happen again.

            The Times has been one of the last American news organizations to maintain a high wall between news and editorial. This is a peculiarly American practice, unusual even among other democracies. But it has been badly eroded by Fox News especially, which taints much of its reporting with politics. MSNBC, some radio broadcasters, and smaller newspapers have also allowed news coverage to be corrupted by partisan perspectives, while The Washington Post, the Los Angeles Times, The New York Times, and some others still cling to what we denizens of the newsroom used to call, in decades past, “the separation of church and state.”

            Reporters were so zealous about this firewall that the newsroom would rumble with murmurs of discontent when a certain editorial writer, who opined on urban affairs, descended periodically from his exalted perch on the tenth floor of the old Times building to the third-floor newsroom to find out from me and other writers what was actually going on in the street. We talked to him but were careful not to listen to him and to pay no attention to whatever he wrote on the topics we covered.

The NRA's Dark America

By David K. Shipler

            Years ago, driving through the Wild West Bank, I was stopped by an Israeli army checkpoint on the road up the Jordan Valley. The young soldier asked if I had any weapons in the car. No, I said. Well, in that case, he advised, it would not be a great idea to continue.

            That’s the kind of America envisioned by the NRA: Don’t send your kids to schools where teachers can’t sport .45 Magnums on their hips or keep Tec 9s in their desks. Don’t lull your kids into thinking there are safe places, free from marauding crazies, where they can concentrate on learning. Remind them every moment of every school day how scary the world is, how vulnerable they are, how consistently high their stress and sense of danger should be. Beginning in their early years, keep those cortisol levels elevated to make sure they greet every affront as if it’s a dire threat. With teachers as role models, every kid will want to carry a weapon. What a wonderful country we’ll have.

Guns: Working Around the Second Amendment

By David K. Shipler

            Please forgive the cynicism, but here’s a prediction: For all the heartfelt hand-wringing and passionate calls to action since the Newtown massacre, Americans will not be made safer from gun violence. After a year or five years (let’s give Congress plenty of time), the country will still be awash in firearms, they will still be available to many untreated mentally ill people, and mass shootings will still occur on occasion, probably even in schools. Guns exist in a perfect storm of politics, law, and culture not easily revised.

In the most optimistic scenario, the Second Amendment might serve as an asset to those favoring modest controls, for under recent Supreme Court rulings, gun ownership is no longer jeopardized. Recognizing an individual right to bear arms rather than one based only in state militias, the thin conservative majority has effectively eliminated what the National Rifle Association and its supporters saw as the dire threat that all guns would eventually be outlawed and taken from the hands of law-abiding citizens.

That cannot happen as the Second Amendment is now interpreted. In both District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010), a 5-4 majority ruled that the right to keep a loaded gun at home was protected by the Second Amendment. Whether the right extends to handguns outside the home remains uncertain until the justices consider cases that have been decided differently in lower courts.