On the subject of our imperiled Democracy, don’t hold your breath hoping we will get to see many more ‘magic tricks’ from the Supreme Court after the magical tri-factor of opinions erupting in June 2015.
Supreme Court Decision: Arizona State Legislature v. Arizona Independent Redistricting Commission.
While everyone is wild with excitement over the Gay marriage decision, an historic event that delights more than half the Country, and drives the Stupidparty disciples from their caves, into the burning sunlight of public exposure, a place where hate will go to fry—and the upholding of Obamacare in a case where the Stupidparty legal team somehow managed to congregate a bunch of self-evident odious mental midgets as plaintiffs—hidden behind all this, another case has been decided, that in terms of trying to actually salvage a defunct Democracy, has larger implications.
In our platform for reform we had established the Six Simple Fixes for US Democracy, see point 2:
Lets us look at just one example of how Gerrymandering works. Florida is a Blue State yet Stupidparty wins this “Blue state” hands down by securing 17 Congressional seats compared the Democrats who only win 10 seats. Since the Democrats should have at least a one seat edge, how come the Stupidparty walks away with an undeserved 8 additional seats? Well, study how the district below has been cunningly created to corral as many Democratic voters into one district as possible. Florida—20
In 2012 The Democrats won this seat with 88% of the vote. Now let us look how this microcosm morphs out on a large scale.
How to Condense Democratic votes into one congressional district
And it is not like we do not now understand what happens if you ban Gerrymandering. California was able to do precisely that, once they ditched the economically disastrous Stupidparty. Since a Democratic governor (Jerry Brown) was installed, with Democrats holding a massive majority in the Assembly and the Senate, we can now see the results of basic critical skills re asserting themselves. The Stupidparty is presently pretty much irrelevant at the local level; it might even be dead, thus allowing for a rebirth of something that used to be referred to as Republicans.
There has been dynamic electoral reform.
1) Lawmakers have been voted in from districts drawn up by a nonpartisan commission. Yea!
2) In the new nonpartisan system, the two top primary finishers run against each other. Yea!!
3) Last year voters eased the stringent term limits that forced out seasoned legislators. Yea!!! or not. What ever.
The New York Times reports (Oct 19, 2013):
In the past month, California has been the stage for a series of celebrations of unlikely legislative success—a parade of bill signings that offered a contrast between the shutdown in Washington and an acrimony-free California Legislature that enacted laws dealing with subjects including school financing, immigration, gun control and abortion . . . The new atmosphere in Sacramento also offers the first evidence that three major changes (listed above) in California’s governance system intended to leach some of the partisanship out of politics—championed by reform advocates—may also be having their desired effect in a state that has long offered itself as the legislative laboratory for the nation.
As The New York Times goes on to report, Stupidparty representatives in more logically drawn up districts have to contend with a less-partisan base. Now such representatives (not having been selected from a partisan primary) have to deal with the realities of an election where the outcome is not preordained; they have to be more responsive to their constituents and be sensitive to the changing demographics. Stupidparty reps have to listen to minorities, immigrants, etc., and they can begin to morph back into Republicans, back into being in touch with humanity.
Republican Rep. Anthony Cannella (for he is no longer Stupidparty) is quoted as saying, “It’s given more courage to my Republican colleagues . . . They were afraid of getting primaries. Now, it’s not just their base they have to appeal to.”
Another Republican: “It gives Republicans the chance to break from their caucus on certain issues . . . It is very different than it was four or five years ago.”
Now that we have set up the context, let’s go back to the recent Supreme Court decision regarding Gerrymandering. The case hinged on the term “Legislature.” Can the term the Legislator mean the “people?”
Here we have a classic case of should the constitution be a living breathing concept or should it literally never evolve. Justice Roberts was chosen for his encyclopedic knowledge of the constitution and for his politically rigid and conservative background that demands adherence to the notion that the constitution must be bubble wrapped in its time warp.
This is odd because the Founding Fathers where hardly Stupidparty – in fact they would loathe what is happening today on the right. The original root of true intent could perhaps best be summed up by Thomas Jefferson:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
So what does “Legislature” mean and what could it mean? Well this is a no brainer for John Roberts:
In his dissent, Roberts accused the majority of performing a “magic trick” with the wording of the Constitution. His dissent begins with an account of Arizona’s passage of the Seventeenth Amendment to the Constitution, providing for the direct election of US senators. “What chumps!” the chief wrote. “Didn’t they realize that all they had to do was interpret the constitutional term ‘the Legislature’ to mean ‘the people’? The Court today performs just such a magic trick with the Elections Clause.”
But Robert’s dissent was far too polite for Scalia who torches the majority with these words:
“[T]he majority’s resolution of the merits question (‘legislature’ means ‘the people’) is so outrageously wrong, so utterly devoid of textual or historic support, so flatly in contradiction of prior Supreme Court cases, so obviously the willful product of hostility to districting by state legislatures, that I cannot avoid adding my vote to the devastating dissent of the Chief Justice.”
Why would any one be hostile to rigging elections? Anyway their case seems water tight to me.
Now before proceeding, I have to say that I am rather cynical about the Constitution. It seems to me that it can used as a tool for good and bad, dependent on the opinion (politics) of the individual Justice. You can know nothing about the constitution and yet you will know how Justice’s Scalia, Alito and Thomas will vote on virtually every issue. Two of the Justices seem pretty tight with right wing political organizations to the point that one has to wonder why they do not permanently recluse themselves. Justice Scalia allows religious superstitions to steep into his very being.
Justice Alito of course sided with Justice Thomas and Scalia. But his views on Gerrymandering should never have been a surprise:
Back in 2005 then Congressman Barny Frank had some prescient comments regarding Alito.
“It is also interesting to watch them [the right wing] try to deny the very, very deep conservatism of the nominee for the Supreme Court, Judge Alito. They are hiding his views on abortion. Recently, in the Boston Globe, an article by Kenneth Starr and Ronald Cass tried to explain away one of the most astounding examples of his extreme conservatism: his opposition to the basic principle of one man, one vote as articulated by the Warren Court. And given the difficulty of trying to get someone confirmed who has views that extreme, these two advocates tried to explain it away by claiming it was all about gerrymandering and proportional representation.”
Professor Michael Tolley of Northeastern University wrote a very good letter exposing the inaccuracy of this attempted defense of Judge Alito and reaffirming that in fact what was involved in his 1985 statement was an objection to that basic principle of democracy articulated by the Warren Court, that it should be one man, one vote.
“Does Alito believe, like O’Connor, in the principle of “one person, one vote”? Or is he against the use of federal judicial power to remedy discrimination resulting from malapportioned legislative districts? The difference between disagreeing with the extension of the principle “one person, one vote” to issues such as partisan gerrymandering and disagreeing with the principle of “one person, one vote” is the difference between a moderate and someone out of the judicial mainstream.”
Alito is a core representative of the Federalist Society. It was the Federalist Society that encouraged George H Bush to stop the ABA (the American Bar Association) from rating judges – thus doing away with notion that Judges should viewed on merit in addition to being philosophically in agreement with the President – this leading to the appointment of two second rate political hacks posing as individuals actually trying to interpret the law – Alito and Thomas.
Federalist Society, is an organization of conservatives and libertarians seeking reform of the current American legal system in accordance with a textualist or originalist interpretation of the U.S. Constitution. It is one of the nation’s most influential legal organizations. It has played a significant role in moving the national debate to the right on the Second Amendment, campaign finance regulation, state sovereignty, and the Commerce Clause. It plays a central role in networking and mentoring young conservative lawyers
As The Huffington Post reports:
Alito’s class at Princeton was the last all-male class at the university, and when Alito was angling for a promotion within the Reagan-Meese Justice Department in 1985, he bragged that he was a “proud member” of Conservative Alumni of Princeton, a group that aggressively fought the university’s efforts to diversify its student body by accepting more women and people of color. (He developed a surprisingly thorough amnesia on the topic between his Justice Department days and his Supreme Court confirmation hearings.)
At the Justice Department, Alito was part of a team that pushed to limit civil rights protections and advance a right-wing legal ideology. Even in that hothouse of right-wing activism, he was an outlier, unsuccessfully trying to push Ronald Reagan to veto an uncontroversial bill against odometer fraud on the grounds of federalism. Alito argued that it is not the job of the federal government to protect the “health, safety, and welfare” of Americans. He continued to push that kind of federalism argument as a judge, dissenting from a ruling that upheld a federal law restricting the sale of machine guns. On the Third Circuit Court of Appeals he was often the lone dissenter staking out far-right interpretations of the law that consistently sacrificed the rights and interests of individuals to powerful corporate or other institutions.
But suddenly these right wing extremists have zero interest in the Constitution when it comes to promoting business interests over the people.
Knox v. SEIU, (Service Employees International Union) in which Alito led an attack on unions by deciding to answer a question that had not even come before them in the case. In essence, he and the other conservative justices argued that a system that allows workers to opt out of assessments for unions’ political work was suddenly unconstitutional, and required an opt-in. Justice Sotomayor slammed the Alito decision for ruling on an issue which the SEIU had not even been given an opportunity to address. That kind of right-wing activism moved People For the American Way Foundation’s Paul Gordon to write that the Court’s conservative judges “might as well have taken off their judicial robes and donned Scott Walker T-shirts in their zeal to make it harder for unions to protect workers.”
So this justification for heinous rulings, because the Constitution “must be taken literally”, is just stuff – it all goes out the window when push comes to shove. As The American Constitution Society reports:
“Judicial activism” mantra has been inordinately effective in shaping the debate over judicial nominations. It has allowed them to push through deeply conservative nominees [and] changed the course of American jurisprudence from one based on advancing principles of equality and liberty to one centered on protecting wealth and privilege.
So how do Supreme Court Justices get nominated? Why has the Supreme Court trended so? I believe that all critical thinkers accept that money has a corrupting influence in politics.
American Spending on Elections: For the 2012 US election—the parties (basically two parties) spent $6,000,000,000. And every cycle, it just keeps getting worse:
UK V USA Money corrupting politics.
It is worse than indicated because the USA presidential elections occur every four years (not five, as in the UK), plus the USA has critical congressional elections every two years. Midterm congressional elections cost more than 50% of the presidential cycle. So actually it is fairer to say that U.S. elections cost almost $10b, (see below graphics) when they should only cost about $100m—that is, if you wanted a relatively uncorrupt system, or congressmen actually looking after their constituents).
If these trends continue then of course that must mean that any remnants of Democracy get ceded to the Oligarchs – the top 0.01%. I defy you to imagine a more plausible consequence. Some already argue that we are already at that point. I would argue that we have not yet arrived at a “Hunger Games” Scenario but that is the direction we are headed. There are already a growing number of the well to do that are so narcissistic as to resemble the ruling class as comically spoofed on in the “Hunger Games”.
Accepting money corrupts – this would mean that the US political process is 50 times more corrupt than the UK. In the following graphs the amount of money spent by the UK has been multiplied by a factor of 5 – to accommodate the difference in population
Thus politicians are in the pocket of the people who contribute to their campaigns –and as these contributions increase, so the best interests of the voters get marginalized. The Asset Strippers, the Beneficiaries, they are taking control. They are the oligarchy in waiting; the democracy we think we see—it is just a mirage.
With these five guys—Big Business must win every time—they are fine with unlimited funds for the Asset Strippers to buy politicians. The Supreme Court justices are not chosen on merit; money chooses the justices. The more money in the political process, the less the newly selected justices will reflect the will of the ever more suppressed and uninformed electorate. Belief in Myth is ignorance, and the ignorant can be easily manipulated. Money will use an outmoded and ever-more-moribund Constitution to further its own agenda and not the agenda of the people. The Constitution had a history of evolving, but that is history now, June 2015 victories not withstanding.
Thomas Jefferson, letter to Thomas Ritchie, December 25, 1820
“A judiciary independent of a king or executive alone is a good thing; but independence of the will of the nation is a solecism, at least in a republican government.”
Four of the six most conservative justices of the 44 who have sat on the court since 1937 are serving now: Chief Justice Roberts and Justices Alito, Scalia and most conservative of all, Clarence Thomas. (The other two were Chief Justices Burger and Rehnquist.) Justice Anthony M. Kennedy, the swing justice on the current court, is in the top 10.
Therefore one needs to see the dissenter opinion in a new light. Alito’s ideas of Democracy are extreme; Thomas a bitter man with savagely right wing views, only departing from Scalia and Alito on rare occasions where his colleagues are totally racially insensitive. So these three Justices will happily conveniently bury their heads so deep into a document, that would then be destined to turn to dust, having incinerated Democracy itself—if there were not some critical thinkers that still have some remnants of influence and can block such conceit.
The Gerrymandering case hinged on the term “Legislature.” Can the term the Legislator mean the “people” For what is at stake is the continued ability to treat the people with contempt – a contempt that the Supreme Court has earned for itself with the Citizens United decision, the Shelby County v. Holder Voter Suppression ruling, and finally the efforts of the extremists to secure the tri –factor of contempt for the will of the people in the Arizona State Legislature v. Arizona Independent Redistricting Commission.
As discussed the “Rotten Apples” appeared to be on solid footing, but during oral arguments Justice Elena Kagan raised a very interesting point – that focused on the numerous laws that promote voter suppression (laws that are not required since Voter fraud by the Voter is Mathematically irrelevant). Her question:
“there are “zillions” of laws regarding elections that were passed by voters without the involvement of the legislature, including those requiring photo IDs to vote and allowing voting on machines and voting by mail. “So would all these be unconstitutional as well?”
I would love to know how the Rotten Apple constitutional purists would have tried to address that question. But then Justice Ginsburg steps forward to put the boot into Stupidparty with her majority opinion.
“The people of Arizona turned to the initiative to curb the practice of gerrymandering,” Ginsburg wrote. “In so acting, Arizona voters sought to restore ‘the core principle of republican government,’ namely, ‘that the voters should choose their representatives, not the other way around.'” Ginsburg’s opinion was joined by the three other liberal-leaning justices and Justice Anthony Kennedy.
Ginsburg went on “It would thus be perverse to interpret ‘Legislature’ in the Elections Clause to exclude lawmaking by the people, particularly when such lawmaking is intended to advance the prospect that Members of Congress will in fact be ‘chosen . . . by the People of the several States,'” Ginsburg wrote, having observed that Gerrymandering effectively rigged the elections to keep one party in power.
Now of course it is the religious types, the fake Christians and all this silly freedoms stuff, who will feel the most persecuted. But the majority decision took all that into account. Justice Kennedy writing:
Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.
So you see, it just takes a slight degree of mental agility to allow the Constitution to magically be a force for good –as opposed to being a tool for individuals who are happy to destroy Democracy, by allowing elections to be “rigged” allowing voting to be suppressed and allowing unlimited amounts of Corporate dark money to buy up every politician in congress.
Now that was not so difficult was it? A victory for the people—god forbid. I have already discussed why Alito, Scalia and Thomas really cannot be trusted to use the Constitution as a positive tool. But Roberts – what makes him what he is? He is smart and does not appear to be closed minded. His dissent against Gay marriage did not appear to come from a dark place; it was rational and well meaning –especially within the context of his life experience. But this is where we get to the rub—his life experience. Like actuaries who are mathematically brilliant but usually lacking in basic common sense (because they just cannot depart from their box), Roberts’s knowledge of the Constitution is unquestioned, yet the founding fathers would surely have wanted him to think outside the box. The Founding Fathers believed in evolution, they fully understood than the laws that made sense in 1760, would often times not make sense in future generations. So how can Roberts be so oblivious?
“One must truly wonder, if, in Roberts, we are seeing a textbook example of the myopia, lack of self-awareness, and narrow-mindedness that can result from attending the non-racially-diverse Roman Catholic grade and boarding schools in 1960s and 1970s small-town, rural, overwhelmingly-white Indiana”
That appears to be that. He might as well have been born and bred in the Truman Show, his bubble is so complete, so suffocating. What else does he have other than a Catholic devotion to the Constitution. Think you can find anything interesting about him other than his bot like expertise on the Constitution? Trying to find anything interesting about Roberts outside of his singular expertise was problematic. This linked article pops up if you google him—“Here are 10 things you did not know about Justice Roberts.” Check it out or just trust me—nothing noteworthy at all; perhaps the Journalist was just incompetent. Wikipedia? Nothing. Other sites, nothing, nothing, nothing. No apparent real life experiences to influence, shape or deepen his world view. So everything must remain two dimensional, no ‘magic tricks’ will ever inspire his opinions. If someone could invent the Manchurian candidate destined to ensure that the Constitution stagnate then, John Roberts is that man. He is at least a Dad, so perhaps he might become more vested in the survival of our species – a survival threatened by Stupidparty.
But today we can celebrate. We can take a moment from the doom and gloom that Stupidparty inflicts upon critical thinkers every day of the week, to feel that yes, there is yet life lurking at the core of the Country.
In the most recent midterm elections the Stupidparty has managed to increase their majority in Congress notwithstanding the fact that they lost the popular vote by at least 1,000,000. This was done by Gerrymandering which has also allowed them to control more Statehouses, that in turn would lead to more gerrymandering in an ever expanding vicious circle of cheating, because cheating, lying and bullshitting is all that they have to offer. This Supreme Court decision can reverse those trends.
But these are dark and stormy days and there is a final double plot twist at the end of this tale. The dead villain, is it really dead? Did the heroes really just turn their backs on the corpse, without double checking the pulse? Remember that Justice Elena Kagan question about those insidious voter suppression laws – well one unintentional consequence of this Supreme Court decision, is to make those laws constitutional.
Tragic right? No, hardly – because as already discussed, the “Rotten Apples” (except Roberts) only pretend to be puritans when it suits them. So if this Gerrymandering Court decision had gone the other way – you can bet your bottom dollar that the Supreme Court would either not take such a voter suppression case, and even if they did, they would have found a way to make those voter suppression laws Constitutional even though they were determined by the people and not by the “legislature”
So much for the complexity of the Constitution, which apparently requires magic, to remain relevant.