Wayne O'Leary

Judicial Dictatorship

The Bible’s New Testament refers in the Book of Revelation to four ominous mounted figures threatening mankind. Popularly known as the Four Horsemen of the Apocalypse, their names are allegorically rendered as Famine, Pestilence, Destruction and Death. The US Supreme Court, being superior to mere biblical authority, boasts six such avengers mounted and ready to ride. Their names are Roberts, Alito, Thomas, Gorsuch, Barrett and Kavanaugh.

The six horsemen of the Republican apocalypse have already set about their vengeful task. In late June, the Court’s reactionary majority, imperiously disregarding precedent, settled law and public opinion, delivered with an almost collective arrogance four shockingly regressive rulings of key importance. They unceremoniously ended nearly 50 years of guaranteed reproductive rights by nullifying the 1973 Roe v. Wade abortion decision; loosened gun controls during a time of mass shootings by eviscerating the right of states to limit public carriage of firearms; tore a hole in the wall separating church and state by legalizing the use of taxpayer funds to support private religious instruction; and short-circuited the ability of the federal government to address climate change by virtually banning EPA regulation of destructive power-plant emissions.

It was an unchallenged tour de force on behalf of newly entrenched right-wing jurisprudence, and far more is yet to come. Next term, the Supremes are fully expected, in the case of Moore v. Harper, to give state legislatures the power, unreviewable by state courts, to arbitrarily set federal-election rules in contravention of state constitutions and to freely create gerrymandered congressional districts as well. This radical reinterpretation of the voting process, aimed at enshrining the so-called independent state legislature doctrine (ISL), could allow a Trumpian takeover of numerous electoral systems and thereby ensure a GOP presidential victory in 2024. The reason? Most state legislatures (30 of 50) are in Republican hands.

Also up for extremist revisionism next time the apocalyptic GOP horsemen ride will be the 1970 Clean Air Act, another measure enforced by the EPA. If Sackett v. EPA is adjudicated as predicted, the environmental agency will lose its ability to protect the nation’s imperiled wetlands, paving the way for polluting industries to resume despoiling them.

The Court’s crusade against the EPA is the intended opening wedge in a partisan Republican offensive against all government regulation of business and industry. First to fall will be environmental laws (considered low-hanging fruit), followed by business and financial regulations in general, stripped away one after the other. The obvious aim of the Court, wielding its 6-3 conservative majority like a scythe, is to mow down the entire federal regulatory structure that’s been erected since the 1930s. Not only is the Great Society in its sights, so is the New Deal. If it can, the Court will return the country to the 1920s — or earlier.

Nothing like this has transpired in almost a century; it’s necessary to go back to the Great Depression, the era of the “nine old men” and the Roosevelt Court-packing plan, to find anything comparable. But the ambitions of the present Court far exceed those of the conservative anti-New Deal Court FDR confronted, which merely wanted to thwart forward progress. The reactionary Roberts Court of today wants to literally turn the clock back and reverse history; it would undo generations of human advancement by wiping the slate clean of anything in the legal realm deemed contrary to its narrow, draconian worldview.

In short, the current bench (its majority, at least) aims at nothing less than an effective judicial dictatorship; it and it alone will decide the law, irrespective of presidents or congresses, and it will use its position to establish government of, by and for a minority of the population (at once, society’s most privileged and its most politically deranged), ignoring representative democracy along the way. The Court will carry out its self-imposed mission on behalf of a Republican Party unable to win for its constituents (the untaxed wealthy, the plundering corporations, the firearms fanatics, the religious extremists) at the ballot box. It will do what conservatives have falsely accused more liberal courts of doing: it will legislate by decree.

Thomas Jefferson, our third president, would have understood the moment we are living through with the sitting tribunal. Of all the Founders, he, more than anyone else, feared the threat of judicial tyranny and resisted the Supreme Court’s usurpations of power, especially its assumption of the right of judicial review (“a dangerous doctrine”), never spelled out in the Constitution but nevertheless seized upon by the Court under conservative Chief Justice John Marshall (1801-35). Jefferson, an advocate of term-limited justices, also felt establishing lifetime appointments would inevitably lead to judicial despotism, and from there to oligarchy; it would, he thought, insulate the high court to an unacceptable degree from the democratically expressed will of the nation.

The behavior of today’s Roberts Court suggests in retrospect that Jefferson was right. Just as the Federalist Supreme Court of his day applied its assumed authority to punish its political enemies (Jefferson’s Democratic-Republicans) using the cudgel of the Alien and Sedition acts, the Republican Court of 2022 is carrying out a similar partisan agenda. Clarence Thomas, the Court’s ideological lead dog suddenly released from his kennel snapping and snarling, has said flat out that his legal goal is to make his liberal opponents miserable for years to come with his anticipated decisions.

Jefferson provided us with another insight that’s especially germane given the specious claim of the apocalyptic six that their exercise in legal revenge is based on the high-sounding theory of “originalism” — that nothing passes Constitutional muster unless the Founders are on record specifying it. Here is Jefferson’s riposte: “Some men look at constitutions with sanctimonious reverence and deem them … too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human and suppose what they did to be beyond amendment … But I know that laws and institutions go hand in hand with the progress of the human mind.”

For now, the Supreme Court’s opponents appear paralyzed and helpless in the face of a judicial juggernaut, but history reminds us that Jefferson used impeachment against the Court, Jackson denied its authority, and Lincoln ignored its writs. Consider Andrew Jackson’s famous response to one ineffectual Court edict in 1832: “John Marshall has made his decision, now let him enforce it.”

Wayne O’Leary is a writer in Orono, Maine, specializing in political economy. He holds a doctorate in American history and is the author of two prizewinning books.

From The Progressive Populist, September 1, 2022

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