If What's Been Happening Since Bush v. Gore Is Regular Order Bring On The Constitutional Crisis

In reading about the various ideas about what Brett Kavanaugh as Republican-fascist vote #5 on the Supreme Court means the increasingly shrill cry that this will be a Constitutional Crisis is the major theme.  Well, seeing what normal order consists of I'm ready to try a Constitutional Crisis which ends up with the Supreme Court drastically changed.  If we could democratize the Senate and get rid of the electoral college at the same time . . .

Liberals who are watching more than a century of hard-fought for progress falling to the Federalist Society American Enterprise Institute fascists on the Court, them taking every opportunity to destroy the possibility of democracy have got everything to fear from this regular order that we're supposed to revere.

We always have had everything to fear from it, the regular order of the Supreme Court as it has been for most of its history is exactly what we've had to fight against to get every crumb of progress in equality, in equal justice, in the securing of basic necessities of life for those who aren't wealthy, of even clean water, safe food and drugs that won't kill us.

That is a literal truth of American history, of the history of the Supreme Court and the regime that it has established.  It took the Civil War and the largest death total in our history to get rid of merely the legal form of slavery, it took enormous struggle costing many lives in the labor movement to get some measure of mitigation of wage slavery, it took the many civil rights struggles with its sacrifice in lives to ensure even a small measure of equality.  And all along the way the Supreme Court, the corrupt electoral system, the Senate the Electoral College have been hurdles and blocks to all of that progress toward equality and democracy.

This article by Mark Joseph Sterns bemoans what I have come to hope for, the possibility that liberals will rebel against the Constitutional order due to the spectacle of the Roberts-Kavanaugh court taking a wrecking ball to the progress of the last century as, in fact, they already have been when it was Kennedy regularly supplying them with their fifth vote.   Well, why shouldn't we rebel and demand that a court that does that be changed in the drastic ways that would stop them from doing what they're doing or to prevent them from making what they want to do law?

I would be willing to see if a drastically different Court with different rules would be enough since it's unlikely we're going to be able to democratize the Senate or get rid of the goddamned Electoral College.    Sterns nightmare scenario certainly sounds better to me than what we've got now.

No matter how courteously Kavanaugh behaves on the court, many Democrats will always see him as the man who blamed “friends of the Clintons” for trying to thwart his confirmation. They will dismiss his votes as the product of political bias. It might not matter much at first: So long as Republicans maintain their grasp on power, they can enforce the court’s decisions through legislation, executive orders, and, if necessary, the National Guard.

But what happens when Democrats take back the legislative and executive branches? What if Democrats pass Medicare for All, and the Supreme Court strikes it down, with Kavanaugh casting the decisive fifth vote? It’s not hard to envision Democrats marching in the streets, demanding that the president and Congress ignore the ruling. And what if they do? What happens if the Department of Health and Human Services just … implements the law anyway? It’s easy to envision the presidential statement: As the chief executive, it is my duty to enact this legislation, passed through the democratic process, and to reject the illegitimate ruling of Donald Trump’s Supreme Court. The federal government, acting on orders of the president, opens enrollment, and Congress appropriates the funds as planned. What can the Supreme Court do? Send its tiny police force to storm the White House?

Considering what the Court would do to the lives, the health, the economic security to tens if not hundreds of millions of Americans with such a ruling, or even just the expected end to the ban on insurance companies refusing to issue policies or to honor ones they wrote on the basis of "preexisting conditions" such a ruling would be a death sentence to many people as, in fact, the ruling that allowed Republicans to block Medicaid expansion has been.  WHY SHOULD WE NOT INSIST THAT OUR ELECTED OFFICIALS PROTECT OUR LIVES, OUR FAMILIES, OUR RIGHTS BY TELLING THE AUTOCRATS IN BLACK ROBES NO!  Why should a bunch of prep-school-Ivy Leaguer servants of power be allowed to kill us?

Or imagine if the court abolishes affirmative action, and some state—say, New Jersey—refuses to comply. Or what if the court strikes down California’s independent redistricting commission, granting state legislators untrammeled ability to gerrymander congressional districts, and the governor insists on preserving it? The same goes for all manner of progressive reforms that could be on Kavanaugh’s chopping block, such as minimum wage laws and public financing of elections. Blue states may be pressured to disregard his decisions. And the president could decline to compel them to follow the high court’s rulings.

Again, such rulings have clear and obvious harms,

- turning us back to a de-facto American apartheid system NO BLACK AMERICAN SHOULD EVER FIND THAT TOLERABLE AS OTHERS COVERED UNDER AFFIRMATIVE ACTION SHOULDN'T.  WHITE WOMEN HAVE A STAKE IN THAT TOO, TOGETHER THEY ACCOUNT FOR THE VAST MAJORITY OF AMERICAN CITIZENS.  That alone should cause us to revolt against such judicial tyranny to effectively end it.

- delegitimizing our local state and federal governments on which the legitimacy of any court in the country ultimately depends.

- reinforcing and making wage slavery even more grinding than it is now,

- delivering our government into the hands of billionaire oligarchs,

The argument that we should fear refusing such judicial orders on the basis that segregationists weren't nice and they did so is absurd BECAUSE IT IS THE SEGREGATIONISTS WHO THE REGULAR ORDER HAVE MOSTLY SERVED ALL ALONG.  IT IS THE SEGREGATIONISTS WHO HAVE CONTROL OF THE COURT AND WHO PUT KAVANAUGH THERE.  The reason that they resisted the Warren Court was because it was about the only time in the history of the corrupt, anti-democratic, radically anti-egalitarian Supreme Court when it hasn't been their servant.

In 2003, Justice Stephen Breyer referred to the “miracle” of national compliance with the court’s edicts, even in the wake of “controversial decisions” like Bush v. Gore. There is nothing inevitable or self-sustaining about this “miracle.” Courts do have some tools to mandate adherence to their orders—namely, their ability to hold individuals in contempt of court. But judges will surely hesitate to hold governors, legislators, and Cabinet secretaries in contempt. The truth is that we haven’t seen massive resistance to the Supreme Court since the segregation battles of the 1950s and ’60s. And despite two presidents’ celebrated efforts to integrate schools with the help of the National Guard, the South’s resistance succeeded in slowing the pace of desegregation.

The motives of the resistance entirely matters in judging the morality of the resistance.   There is no reason to allow the enemies of equality and equal justice, the servants of oligarchs and racists to define such a resistance when the goals are, in fact, democracy, equality, economic justice, environmental protection, the protection of the rights and lives of people on an equal basis.  To equate those with segregationists is intellectually dishonest and absurd. 

This precedent is appalling. But it demonstrates that the playbook can work. Progressives should recognize the danger in adopting the tactics of segregationists. Getting to the point of massive liberal resistance to the court would require a significant psychological shift, since the left has long viewed the Supreme Court as a saving grace. Kavanaugh’s confirmation alone won’t bring Democrats all the way there. But if he leads the court into a frenzy of reactionary jurisprudence, progressives may feel they have no other alternative.

As I have been yelling at liberals at the top of my lungs over the past twenty years, Earl Warren died a long, long time ago.  The Court has reverted to its regular order and it is screwing us all

No matter the end result of liberal defiance, it will likely transform the Supreme Court’s legitimacy crisis into a full-blown constitutional crisis. Kavanaugh’s confirmation will have poisoned the foundation of the judiciary’s authority. The Supreme Court derives its power from the belief that it sits above the political fray. Brett Kavanaugh is poised to shatter that illusion.

Bring it on.  The illusion should have shattered a long time ago, certainly by Bush v. Gore one of the most bald faced REPUBLICAN PARTISAN power grabs by an anti-democratic court in our history, and it's only gotten worse since then.   I'm ready to see radical change.  One of the things that Louis Boudin advocated was making it impossible for a Supreme Court to overturn duly adopted laws duly signed by ELECTED OFFICIALS by a 5-4 decision, requiring a unanimous court to do so.  If that were the case all of the huge number of electoral reforms adopted to prevent the corruption of our elections would be in place and Trump wouldn't have appointed Kavanaugh, Roberts and Alito would not be there.  Neither would Gorsuch.