Laslo Boyd: The Supreme Court’s Coup D’état

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By: Laslo Boyd 

“The Martians are coming, the Martians are coming.” In response to Orson Wells’ 1938 radio broadcast of a fictional invasion of Earth by Martians, many Americans reacted with  genuine panic that their way of life was being threatened by a foreign power. That theme has been repeated frequently in both popular fiction and in  American political debate.

After World War II, this country  engaged in a half century of struggle with the Soviet Union in which we worried not only about nuclear war — as at the time of the Cuban Missile Crisis — but about the risk to our system of government  of being undermined by Communist agents. Nikita Khrushchev may have warned that the Soviets would “bury us,” but the inquiries of the House Un-American Activities Committee were far more concerned with undercover disloyalty buried in everyday life.

After the collapse of the Soviet Union and the fall of the Berlin Wall, there was a brief period in which most Americans did not worry about attack by external or internal forces.  9/11 changed all of that. We started waiting in lines at airports, took off our shoes when told to, acquiesced in government monitoring of our electronic communications, and again saw the world as a very scary place.

More recently, the rise of the Tea Party and a growing partisan divide in our politics have led to debates about the “true” intent of the Founding Fathers and to calls to “take our country back.”

While not agreeing on the meaning of either the U.S. Constitution or the Declaration of Independence, Americans have asserted their fealty to the principles of those documents and expressed anxiety that they were at risk. 

Those decades of looking to threats from aliens or from other nations may have blinded us to the risks from within our own political system. The United States Supreme Court, which many scholars have referred to over the years as the “least democratic branch” of government, has in a series of recent decisions done more to undercut “government by the people” than we might have imagined from any Martian invasion.

Last week’s “Hobby Lobby” decision, as well as the Court’s rulings on money in politics and on the 1965 Voting Rights Act, constitute a pattern which, if not reversed, will make us much less of a democracy that the Founders envisioned.

What is at risk is the very existence  of individual liberties enshrined in the Bill of Rights, that critical addition to the Constitution that came just two years after our new government took form. A five-member majority of the Court has relied on a legal fiction that corporations are “people” to bend and distort the meaning and intent of the 1st Amendment. 

Any reading of the history of the Bill of Rights makes abundantly clear that its proponents viewed the Constitution as not providing adequate protections to individual rights. They sought to rein in the powers of Government over individuals.  Those advocates, it’s important to remember, were not the same people who met in Philadelphia in 1787. It is inconceivable that any of them saw their efforts as applying to  corporations, let alone identifying them as  people.

Using a legal fiction that contradicts the language and intent of the Bill of Rights, that slim Court majority has concluded, against all logic, that corporations can hold religious views and exercise freedom of speech. The language of their decisions in the “Hobby Lobby” case and in “Citizens United” can best be understood by reference to Humpty Dumpty in “Through the Looking Glass.” Much like Samuel Alito in his majority decision, Humpty Dumpty tells Alice, “When I use a word, it means just what I choose it to mean — neither more nor less.”

Those five male justices hide behind a faux theory of the Constitution that they label “Originalism.”  Put most simply and most frequently by Antonin Scalia, it means that they  - and only they - have a unique ability to discern what the authors of the Constitution meant or would have meant if faced with issues of the 21st century. In practice, this contrivance has allowed the justices to rationalize their own political preferences as comporting to the intentions of the Founders.

But there is more to their disingenuousness. Describing themselves as conservatives, they have consistently rejected two basic tenets that have guided the Supreme Court through most of its history.  Stare decisis, the principal that precedent and prior decisions of the Court should carry great weight, has been regularly ignored by this Court.  The majority’s decision in “Citizens United” disregarded nearly a century of law and Court decisions on the issue of regulation of campaign finance.

Similarly, Courts have historically deferred to the judgment of legislatures even when they disagreed with the outcomes. The Supreme Court is not a super legislature, but these five justices frequently act as if they believe they are. When this Court invalidated the most recent extension of the 1965 Voting Rights Act, they concluded that it was no longer needed despite Congress having decided just the opposite when it renewed the law. This is a classic example of the Court substituting its judgment for that of elected officials.

In both the campaign finance decision and the voting rights case, the Court majority brushed aside warnings that their rulings would lead to disruptive consequences for our political system. Super PACs and spiraling amounts of campaign money are a direct result of the Citizens United decision. Similarly, states that had been subject to the provisions of the Voting Rights Act immediately started setting up legal obstacles with the sole intent of disenfranchising voters.

With that history, it’s impossible to take seriously Justice Alito’s reassurance that there won’t be a flood of objections  to complying with numerous other federal laws based on “sincere” religious beliefs. Rather than provide clear guidance to lower courts, the “Hobby Lobby” case invites challenges to any law that someone disagrees with. If that is the direction in which we are going, I hope I can at least get a refund for my tax dollars that were spent on unnecessary wars with which I disagreed.

Make no mistake. This is not a conservative court. It is rather a group of radicals intent on imposing their own political views on the country. If Martians or Soviets tried to do that, we would view it as a fundamental threat to our democracy. What the Supreme Court has been doing is no less of a threat.

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Laslo Boyd's professional experience includes serving as education advisor to the Governor of Maryland, Acting Secretary of Higher Education, senior administrator in several higher education institutions and university professor.  His work in political campaigns has involved strategic communications, public opinion polling, and development of position papers.  Dr. Boyd has consulted for a wide range of clients in higher education, government, and business.  He has provided political commentary and analysis in both print and electronic media.