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Year-End SCOTUS Rant

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This past year brought us the full flowering of a central project of the filthy rich white people who fund the insurrection party: the takeover of SCOTUS by a gang of hardline fanatics. Big Wallet Boys don’t care about religion, they worship money. They want SCOTUS to screws up any government regulation that slows down their plundering of the American economya and Planet Earth. But they don’t care what SCOTUS does on culture war issues because they are not affected.

Of course SCOTUS has always been politically conservative and a blight on the promises America made to each of us. The few sprinkles of decency we’ve gotten over the centuries were either a) tiny steps towards enabling all Americans to benefit from Constitutional rights enjoyed by white men, or b) grudging reversals of old precedents inflicting the prejudices and hatreds of dead rich white men on we the living. For a detailed look at the disgusting history of SCOTUS on individual rights, see The Case Against The Supreme Court, by Erwin Chermerinsky

The provocateurs supported by the rich use culture war issues to anger up the rubes and while they’re distracted, SCOTUS can work toward the goal set by the rich: enabling their moneymen to steal the country blind and route us to an unlivable future.

We can identify the goals of the longer serving members. John Roberts is dead set against the Voting Rights Act, and has never missed a chance to use a case with a voting-related issue to subvert it. Clarence Thomas and Sam Alito have been stewing in their own bile so long they are fully rotted; they both live to stick it to the libs.

In 2022, though, we got bitch-slapped by the revanchists, including the three religious zealots appoint by Trump and McConnell. The Holy Six imposed their religious views in a number of cases, ruling that women have no right to control their own bodies, that coaches are free to dragoon their players into worshipping the god of the coach’s choice, and that religious leaders are free to spread a pandemic.

The big casualty is rational jurisprudence. In case after case, SCOTUS has ignored the trial record, made up its own facts, reached out to take cases before a record can be made, ignored precedent, including precedent about rejecting precedent, invented new Constitutional “doctrines”, taking faked-up cases for the sole purpose of striking down actions the Holy Six, the rubes, or rich people don’t like, and delaying justice through the shadow docket.

The result of these deviations from normal practice is the utter lack of stability. On Twitter law profs ask what they should teach about Constitutional law. The Fox News Six make it too easy: the Constitution means only whatever five of them say on any given day. The same question can be asked about Administrative law: is there any? And the power of Congress: does it have any? And the power of the Executive: does a Democratic President have any power? Not if SCOTUS doesn’t like it.

We have historically entrusted courts with the task of determining which rights belong to the people, and the extent to which governments at all levels can exercise their Constitutional powers in controlling people. Courts do this by interpreting and applying terms like liberty and due process found in the Constitution. Courts have always lagged behind the consensus of the American People on issues of rights, but change has come, if at a frustrating pace. For example, at least for now, governments don’t execute very many mentally ill people.

SCOTUS doesn’t care about any of this. Read Bruen, where Spouse of Insurrectionist Clarence Thomas says that the only restrictions on guns that are Constitutional are those in place at the time of the adoption of the Second Amendment, 1792. At that time, there was no concept of domestic violence. So, a Texas law prohibiting people subject to domestic abuse protective orders from owning guns is unconstitutional.

In other words, you don’t have the liberty of not being murdered by an abusive spouse. And you don’t have the liberty of going to a school, a place of worship, a concert, a grocery store, or a parade unless you are willing to take a bullet from a person armed by SCOTUS.

We can’t protect ourselves from corporate depredations either. SCOTUS restricts government regulation for years if not forever. It strikes down every law it doesn’t like, by which I mean any law rich people don’t like. In West Virginia v. EPA, it ignored the long-standing rule that SCOTUS doesn’t issue advisory opinions when it struck down a regulation of air pollution that was withdrawn before it ever took effect. And it invented a brand spanking-new doctrine, the major question doctrine, to arm itself further against Congress trying to regulate anything.

In Shelby County v. Holder, the Court announced that Congress hadn’t done enough investigation to justify the reauthorization of the Voting Rights Act. That act offended the Dignity Of The States, another brand new invention. That same logic can be used with the major questions doctrine to argue that Congress hasn’t done enough to justify authorizing agencies to regulate anything SCOTUS doesn’t like. And of course SCOTUS gets to decide whether a question is a major question.

Congress and executive agencies aren’t allowed to make rules to protect us from deadly pandemics. Only SCOTUS is allowed to do that. They killed mask mandates in the workplace, freed up unscrupulous religious leaders to infect their followers, and just recently interfered with international diplomacy by enjoining the Biden Administration from junking a Trump rule barring entry of asylum seekers because Covid is so terrifying. So much for consistency.

Neither Congress nor the President have resisted the hijacking of their power. They didn’t impose any limits on SCOTUS, by restricting its jurisdiction, cutting its funding, publicly attacking decisions as overtly political or poorly reasoned, holding hearings, or even taking the mild step of imposing ethical requirements. They just sit and watch the Holy Six enjoying their self-declared role of Philosopher Kings, the Platonic Ideal. Democracy? That’s not in the Constitution.

The worst part is that they expect you and me to respect them. We “cross a line”, in Alito’s words, when we say they are illegitimate. They are spitting on us and telling us we are powerless to stop them.

Are we?

Dewey’s Aspirational View of Democracy

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Posts in this series

In the last post we looked at John Dewey’s view of democracy based on The Public And Its Problems, which I called a functional view. He explains the minimum requirements for maintaining a democratic form of government. The text for this post is The Ethics of Democracy, published in 1888, when Dewey was 29 and a professor at the University of Michigan. It offers the uplifting vision of democracy that was missing in the prior post. [1]

This is a philosophy paper. I take it to be a statement of the ideal, grounded in the reality Dewey sees, but laying out his hopes for the future if we pursue this ideal. It’s aspirational, not descriptive.

Dewey doesn’t assert that there a foundational principle from which he can reason his way to his views. His argument responds to the ideas of other writers, using them as a way of demonstrating his own thinking. Dewey takes up the ideas of Sir Henry Maines in his book Popular Government, and Plato’s Republic. Plato and other ancient Greek thinkers took as the highest virtue is excellence, arete, in action and contemplation. I think it helps to keep this in mind as we examine this work.

Maine was a British jurist. Dewey reads his book to say that democracy is fragile, accidental, and bound to failure. Dewey quotes Maine saying democracy will end “… in producing monstrous and morbid forms of monarchy and aristocracy.” In short Maine writes a defense of rule by an aristocracy of the best people, which I assume he derives from Plato’s Republic. Maine says democracy is the rule of the many, by which he means a quantitative, numerical form of government derived from the votes of a horde of isolated atomized individuals, all acting solely in their own interest. Dewey says that for Maine, “Democracy is othing but a numerical aggregate, a conglomeration of units.”

Dewey compares society to an organism whose existence emerges from the actions of the people who make it up. Society exists only through the actions of its members, and we only know society by looking at the actions of the members. The success of the society depends on the success of the individuals and vice versa. Dewey claims that this view arises from the Republic.

Dewey thinks that our actions are mediated by our socialization (my word), so that in acting we are not isolated atoms. Instead, each of us is different way of expressing that socialization, and thus part of the group. Dewey thinks that the will of society is expressed in this way, through the combined acts of members. The will of society gains some expression through the functional definition of democracy as selecting and overseeing our officials.

The key point of the paper for me is Dewey’s explanation of the value of democracy, the ethical justification for it. [2] In the first part of the paper, Dewey compares and contrasts aristocracy and democracy, as if they were merely two possible forms of government.

Democracy, like any other polity, has been finely termed the memory of a historic past, the consciousness of a living present, the ideal of the coming future. Democracy, in a word, is a social, that is to say, an ethical conception, and upon its ethical significance is based its significance as governmental. Democracy is a form of government only because it is a form of moral and spiritual association.

Dewey says that aristocracy can make the same claims. But appointing the best and wisest doesn’t work. They become corrupt, or lose sight of the needs and desires of the majority. Every movement to greater democracy increases the number and diversity of the people who operate as the government and who oversee that operation.

Every forward democratic movement is followed by the broadening of the circle of the state, and by more effective oversight that every citizen may be insured the rights belonging to him. P. 21.

The aristocratic ideal is that the wisest force people into the spheres in which they can best serve the state. Dewey is appalled by the idea that the individuals in a society can be pushed around by anyone, let alone a group identifying itself as the best and wisest. He doesn’t say it, but the idea that the wisest know the needs of society is absurdly hubristic. In a democracy, people find their own way into what Dewey calls “their proper positions in the social organism.” P. 21. They take up roles in which they can best carry out the goals of society. They do this as individual persons, each with their own set of attributes.

There is an individualism in democracy which there is not in aristocracy; but it is an ethical, not a numerical individualism; it is an individualism of freedom, of responsibility, of initiative to and for the ethical ideal, not an individualism of lawlessness. In one word, democracy means that personality is the first and final reality. P. 23.

I think we would use personhood instead of personality. I think this means that the full flowering of the individual, with all the influence of society, is the driving force of democracy. It is from this personhood, this ethical individual, that other aspects of democracy emerge: including liberty, equality and fraternity. Dewey gives illustrations of the first two.

Liberty in the dominant view means the freedom to do as one chooses, without regard to any other concern. In this view, the law is meant to punish actions that society deems unacceptable.

Dewey rejects this view. Society creates law, using that term in a broad way to cover statutes and formal rules of the state, moral and cultural demands and taboos, and informal rules of behavior. The law of a society represents its will at any time. The personhood of each individual is formed under the influence of this law. Today we would say that each individual internalizes the law. Thus the exercise of liberty by an individual is controlled by the law as instantiated in that individual. [3]

In this way, liberty is self-restricted, but at the same time, the individual is free to explore the limits imposed by the law, and to seek changes. The individual is required to follow the formal laws and rules, but is free to flout the moral and cultural demands and taboos, and the informal rules, subject, of course, to social sanctions, like shunning and shaming. At bottom, in a democracy, the law is not imposed by an external force. It is shaped by individuals as one of their social roles, and internalized. It’s function is to channel the exercise of liberty.

Turning to equality, the vulgar meaning is numerical equality, equal portions of each desirable good. Dewey says that in a democracy equality has an ethical meaning. It begins with the view that each individual person is equivalent in moral worth to every other individual.

Wherever you have a man, there you have personality, and there is no trace by which one personality may be distinguished from another so as to be set above or below. It means that in every individual there lives an infinite and universal possibility; … . P. 25.

This is the beauty of democracy: every person has the opportunity to become all that they can be, and those possibilities are unlimited. [4]

Discussion

This is a strikingly contemporary vision of democracy. Dewey lays out a set of values associated with democracy that resonate with my own. I wonder how many Republican legislators would support Dewey’s understanding of democracy.
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[1]The views in this paper did not change throughout his life.

At the core of his political thinking are the beliefs that science and democracy are mutually supportive and interdependent enterprises, that they are egalitarian, progressive and rest on habits of open social communication, and that powerful interpretations of liberal individualism and democracy have become ossified and self-defeating.

[2] See pages 19-24. I’m skipping a large part of this paper, There is a lot of it that is obscure. Some of the reasoning feels dated to me. I’m not familiar with the writings of some of the people he quotes. None of that detracts from my admiration for his overall conclusions.

[3] See page 23. I think I have summarized it correctly, but the language is obscure. Comments are welcome.

[4] This conception comports with the views of Elizabeth Anderson, which I discuss in this series. Anderson identifies as a follower of Dewey and a Pragmatist.

Arpaio And Thomas: The Most Unethical Sheriff And Prosecutor In America Conspire To Abuse Power And Obstruct Justice

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In addition to some of the finest weather and most spectacular natural beauty in the US, Arizona is also home to two of the biggest and most virulent self serving political hacks imaginable, Sheriff Joe Arpaio and Maricopa County Attorney Andrew Thomas. For years, there has been an escalating turf war between the Siamese twins of local law enforcement oppression, Arpaio and Thomas on the one hand, and the Maricopa County Board of Supervisors and the Maricopa County judiciary, who keep trying to reign in the out of control officers, on the other hand.

Last week, Arpaio and Thomas upped the ante in the war by filing a civil racketeering suit in Federal court. From The Arizona Republic:

Alleging widespread conspiracy, Maricopa County Attorney Andrew Thomas and Sheriff Joe Arpaio filed a civil suit in U.S. District Court on Tuesday against county administrators, elected officials, judges and attorneys. Those defendants, they say, are violating federal racketeering laws by hindering criminal investigations and depriving their offices of resources.

County officials dismissed the claim as frivolous, saying Arpaio and Thomas have routinely lost on similar claims in state and local courts.

In the lawsuit, Thomas and Arpaio name all five members of the Board of Supervisors along with County Manager David Smith, Deputy County Manager Sandi Wilson, four Maricopa County Superior Court judges, director of the county’s civil-litigation division, two attorneys and a law firm.
…
The suit, in essence, reiterates all of Thomas’ battles with the courts and county since 2006, including accusations of conspiracy by Judges Barbara Mundell, Anna Baca, Donahoe and Fields, claiming that the dispute began with the court’s opposition to Thomas’ immigration policies. It revisits the questions Thomas raised about the new $341 million court tower. Donahoe removed Thomas’ office from that investigation, and the Arizona Court of Appeals upheld Donahoe’s decision. Coincidentally, on Tuesday, the Arizona Supreme Court refused to reconsider that case. (emphasis added)

The last part in bold is key. Thomas and Arpaio have waged war against Maricopa County, the courts, elected officials and anybody else that dares to question or restrain their use and abuse of power. The issue here is a local concern, under purely Arizona state law, on which Thomas and Arpaio have resoundingly lost at every level of Arizona court, all the way to the Supreme Court of Arizona. With disdain and contempt for any court disagreeing with them, which is pretty much every court that reviews their conduct, they have now tried to counter the rule of law by tying the entire Maricopa County government in knots through spurious and unethical application to the Federal court.

The Judge Donahoe referred to in the Arizona Republic quote above is Maricopa County Superior Court Presiding Criminal Judge Gary Donahoe. Arpaio and Thomas have a special vendetta against Judge Donahoe and, today, doubled down on their crusade by criminally charging Judge Donahoe with bribery, hindering prosecution and obstruction based, amazingly, primarily on the same complaints and facts that the entire spectrum of trial and appellate courts in Arizona have previously rejected. From a late breaking story today by The Arizona Republic: Read more →