A Time Of Danger
The Theocracy of the United States of America
As I was finishing my post, A Progressive State of the Union, dealing with conservatism and the differences between conservatives and progressives, on June 24, 2022, the news broke that the SCOTUS has laid waste to the right of women in our country to make decisions about their reproductive health. Six far-right justices have decided that women do not have a say or freedom of choice regarding having a baby.
My mind is roiling over this decision. We are verging on becoming a theocracy. While not unexpected, I and others, and by others, I mean a majority of Americans standing for a woman's right to choose, held out a small hope that this Court would see its way clear to stay out of this most personal decision a woman can make. But, of course, they didn't.
They've tried to couch their decision in terms of precedence. Alito wrote, "For the first 185 years after the adoption of the Constitution, each State was permitted to address this issue in accordance with the views of its citizens. Then, in 1973, this Court decided Roe v. Wade. Even though the Constitution makes no mention of abortion, the Court held that it confers a broad right to obtain one."
That is faulty logic, if ever there was one. Point one; Many things are not mentioned in the Constitution because they did not exist when that document was authored, and the men writing it couldn't imagine what the future might hold.
Point two; For almost 250 years, from around 1600 until the mid-1800s, slavery was the law of the land. For nearly 400 years, from 1600, when Europeans landed on these shores, until the beginning of the 20th century, women didn't have the right to vote. Simply because you've done something for a long time doesn't make it right or wrong or that you should codify it in perpetuity. You have to look at the impact on society in a modern world and consider human rights and individual rights, not just "Well, we've always done it this way." The Court's rationale is one of the weakest arguments and flawed decisions I can imagine.
My emotions are running the gamut from anger to sorrow to disbelief. I'll describe what I feel, think, and where I believe this decision is perhaps the worst decision by a SCOTUS in a century, if not all-time, and there have been some bad ones. First, here are a few examples of where the SCOTUS totally blew it.
- Dred Scott v. Sanford (1857): Hands down the worst Supreme Court decision ever, Dred Scott held that African Americans, whether free men or slaves, could not be considered American citizens. The ruling undid the Missouri Compromise, barred laws that would free slaves, and all but guaranteed that there would be no political solution to slavery.
- Buck v. Bell (1927): "Eugenics? Yes, please!" the Court declared in this terrible decision which still stands as good law. In an 8-1 decision written by Justice Oliver Wendell Holmes, the Court upheld the forced sterilization of those with intellectual disabilities "for the protection and health of the state."
- Korematsu v. United States (1944): Here, the Supreme Court upheld the internment of Japanese Americans during World War II, finding that the need to protect against espionage outweighed the individual rights of American citizens.
- Plessy v. Ferguson (1896): The Court's famous "separate but equal" ruling upheld state segregation laws. In doing so, the Court ensured that the gains of the post-Civil War reconstruction era were quickly replaced by decades of Jim Crow laws.
The point here is that this SCOTUS, often called a "Conservative Roberts Court," and previous courts are not infallible or all-knowing, but somehow, that is what we expect from them. Sadly, in today's world, this court appears to have become a court, not of civil or even constitutional law, but one of morality and deeply held religious underpinnings, putting us, possibly, on the threshold of becoming a theocracy. Here are some thoughts about what this decision means and where it might lead.
A word about the term conservative: while labels are not always all-encompassing, generally, the term conservative as it applies to our politics and this SCOTUS is synonymous with religion. Generally speaking, the conservative citizens of this country lean on their religious beliefs to define their brand of conservatism. They are opposed to same-sex relationships and a woman's right to choose depending on their faith. Many believe that gender identification is an abomination, although many know someone who is transgender. Depending on their orthodoxy and the severity of their beliefs, they oppose alcohol, dancing, and pre-marital sex. They want to ban certain books and prevent the learning of opposing views. They are likely to oppose contraceptives, teaching evolution, popular culture like music and movies, the separation of church and state, and favor the return of religious practices to public schools. This dogma appears to be what is guiding the six conservative justices on the SCOTUS. Back to some of my other thoughts.
First, and perhaps, foremost, this decision to abandon Roe v Wade and other recent decisions, as well as actions by individual justices of this Court, threatens the standing and reputation of the court as a fair and impartial judiciary that acts according to established law and precedence. We depend heavily on the citizens trusting in our laws and voluntarily abiding by the law; that is the difference between our success as a democracy and other governments that have disintegrated into chaos because the citizenry lost confidence in the system to be consistent and reflect the majority public opinion.
That's right, the law in successful democracies typically follows the majority opinion regarding what society accepts as the norm. In our history, the majority opinion, and therefore the courts, have come around to believing that slavery was wrong, that child labor was wrong, that women deserve equal rights under the law, and other practices in our society that had previously been permitted by bad law. These bad laws were often championed by people seeking personal gain in some way or, more dangerously, using religious thought to dictate civil law. As it became evident to our leaders in America that most people disagreed with oppressive or often religious law, the government and the courts changed the laws to conform to the majority opinion. If the majority of the public will not abide by the laws, you no longer have a democracy; you have chaos which is the precursor to civil unrest and potentially civil war.
This decision by the SCOTUS, a decision opposed by most citizens, sets up the possibility for significant if not dangerous civil disobedience. That could result in some of the more conservative governments at the local or state level resorting to police-state tactics to try to enforce a wrong SCOTUS decision. The potential for the emergence of a variety of grey or black industries and underground activities in support of women wanting to make their own decisions about motherhood will make criminals of people trying to make their own decisions about their lives.
I expect that over the coming weeks and months, we will see massive demonstrations against this archaic and profoundly religious decision by the Court. Depending on the reaction of local authorities, the potential for violence would seem significant.
Another thought I had, and Speaker Pelosi seemed to see the same contradiction in the Court, is the inconsistency by this Court in applying the law. Yesterday or the day before, this Court struck down a gun-carry law in New York that had stood for a century, saying that the State could not make gun laws contrary to federal law where no such restrictions exist. Now, they do a complete 180 and say that a federal law that has stood for fifty years is null and void and that individual states can make laws about abortion. Again, this Court is not using precedence or constitutional law in their decisions but personal moral, spiritual, and societal philosophy.
Members of this Court have made statements about being "Constitutional Originalists." I equate that state of mind to being a religious fundamentalist. The World Atlas defines religious fundamentalism this way; "Religious fundamentalism refers to the belief of an individual or a group of individuals in the absolute authority of a sacred religious text or teachings of a particular religious leader, prophet, and/or God. These fundamentalists believe that their religion is beyond any form of criticism, and should therefore also be forced upon others."
This is not the first time I've made this point; "Religious texts, contrary to claims, are thoughts and ideas written thousands of years ago by men, and only men, who thought the world was flat." These writings are not the "word of God." We don't even know with a certainty that God exists, and we're pretty damned sure He or She wasn't having Zoom meetings with all these old guys back in the day. Why was God so chatty two thousand years ago but remains totally silent today? There are certainly some valuable guiding thoughts in many of these texts and some pretty wild statements, not to mention passages promoting vengeance and violence. My point is that it is illogical to take an old and ancient text and try to apply it as a template for life in a modern world.
This same argument is valid for the Constitution. It was written 250 years ago by men, again only men, who couldn't begin to imagine guns that could fire forty rounds a minute, television, space travel, or computers and smartphones. They generally spoke about things like free speech, equality, freedom of thought, civil laws, and freedom from religious persecution. These broad terms have to be reinterpreted over and over as our world, society, scientific knowledge, and social norms change. The Constitution is a set of guideposts for democracy, not something chiseled in stone.
I fear for our immediate and, to a degree, our longer-term future. What seems evident to me is that if we, as a society, disagree with the decisions of this Court, we have but two options. We have to change the leadership at all levels of government by replacing those who advocate for these extreme religious beliefs. We have to change the makeup of our Congress to a substantial majority that will take actions like codifying a woman's right to make her own decisions about her body.
We can also increase the Court to perhaps eleven justices to have a more balanced approach to our laws. We need to do this in November of this year (2022) so that the two new justices will be appointed by President Biden and approved by the Senate, where we will have a majority of at least 60 moderate-to-progressive senators. That is our only way out of this borderline theocracy the conservative right has been able to assemble.