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What 6-3 Will Bring

Tom Hall: With Samuel Alito, John Roberts anchors a very race-conscious clique on the Supreme Court. He has made clear that he opposes non-white voting and will rule to limit it whenever possible.
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One week after election day, on November 10, 2020, the United States Supreme Court will hear arguments about whether ObamaCare should be declared illegal and destroyed during the pandemic. With Ruth Bader Ginsburg on the Court this case would have led to a 5-4 decision, for or against ObamaCare. With her absent, the best sensible Americans can hope for is a 4-4 tie, leaving in place the Republican Court of Appeal decision that the law is illegal.

The entire theory of the case is ridiculed by even ultra-conservative legal scholars (no, “conservative legal scholar” is not a oxymoron). But partisan Republican judges have, so far, ignored the absence of legal support, and have honored the political arguments for trashing ObamaCare. 

People who imagine that John Roberts might reprise his earlier vote to save ObamaCare overlook that the law has been changed by the Trump administration, and Roberts’ rationale for voting to preserve ObamaCare may have evaporated. 

There will be reams and reams of paper written about this dispute. One problem with that is that it will obscure other, at least as troubling legal changes that could be the result of the Donald appointing a third rightwing “justice” to the Supreme Court. 

We should look back at Ginsburg’s lawyering career to help remind us what may lie in store for our future. As recently as the 1970s, Social Security paid benefits to a widow, after her working husband died, but did not pay benefits to a widower, after his working wife died. The wife had Social Security deducted from her paycheck (unless she worked “under the table” or was undocumented). But simply paying in did not entitle her to leave her Social Security benefits to her surviving husband. 

Ruth Bader Ginsburg attacked that distinction as unconstitutional. And she won, 420 U.S. 636. She benefited all people, both genders, and their children. But for the 35 years of Social Security, until her creative attack, the law discriminated. Within the lifetime of many LA Progressive readers, there have been a score or more of similar legal battles, waged by lawyers like Ruth Bader Ginzburg, and Thurgood Marshall. All of those victories are recent within our country’s history, and all could be undone by a corporate Republican Supreme Court. 

Law is always in flux. After women “got the right to vote”, in 1920, black women remained barred from voting in states where they made up a large percentage of servant labor. In 1965, Congress passed the Voting Rights Act. But in 2013 John Roberts led the Supreme Court in destroying that law, and encouraging states to keep blocking non-white voting. Acting on Robert’s clear encouragement, southern states worked hard to implement restrictions on non-white voting.

With Samuel Alito, John Roberts anchors a very race-conscious clique on the Supreme Court. He has made clear that he opposes non-white voting and will rule to limit it whenever possible. 

A few years later, Roberts struck again, this time striking down laws against gerrymandering, and encouraging states to carve up legislative districts to reduce the effectiveness of non-white votes. With Samuel Alito, John Roberts anchors a very race-conscious clique on the Supreme Court. He has made clear that he opposes non-white voting and will rule to limit it whenever possible. 

But racial equality is not the only issue with which a newly constituted court will have to deal. Just consider some of the controversies currently or recently before the Court. As noted above, November 10 will see arguments on the Donald’s request that the Court destroy ObamaCare. In the middle of a worldwide pandemic, in which the U.S.A. is bragging about being the world leader in the number Covid-19 deaths, at least four Republican partisan members of the Supreme Court are on record as opposing ObamaCare, regardless of existing law or precedent. 

Similarly, in the late summer of this year, the Donald announced that he and the Republican Senate had agreed to suspend all collection of Social Security contributions from paychecks. The Republican plan is that the “suspension” will be converted to a complete termination of such deductions if the Donald is re-elected. The exact same political (NOT legal) theory that underlies the attack on ObamaCare will then be used to support a new Supreme Court ruling that Social Security is now illegal. 

We have been here before, although before the lifetime of even the oldest person now collecting Social Security. As the 1930s Great Depression worsened, and President Roosevelt, with a new Democratic Congress, passed laws to try to improve life for average Americans, a Supreme Court dominated by corporate appointees repeatedly ruled that any law passed to help people in desperate need was unconstitutional. 

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Social Security survived legal challenge ONLY because corporate justices feared that further overt attacks on the American people would lead to a “court-packing” strategy that would have rebalanced the court to give regular folks a little power against the corporations that had given us that depression. 

But now, even people who have paid into Social Security for decades could find their benefits at risk, as the ObamaCare ruling, applied to the ending of Social Security payroll deductions, ends the legal justification, in rightwing minds, for the entire Social Security system.

What other programs could be on the chopping block? Medicare, clearly “socialized medicine.” Clearly something that corporations see as limiting their control over employees. 

Title IX programs. Decisions that said the language of legislation should be honored will almost certainly give way the sophistry “explaining” that what Congress said in statutes was not what they really meant. After all, can anyone believe that red-blooded congressmen really intended to give equal weight to manly football and women’s soccer? 

Title IX cases have been based on the belief that men and women are equal - NOT identical (thank god!) But equal, and entitled to equal rights under law. But it wasn’t until 1994, (that’s NINETEEN, not eighteen, 94) that the U.S. Supreme Court ruled that using peremptory challenges to exclude women from juries was a due process violation. In 1994, four male ‘justices’ of the U.S. Supreme Court officially dissented, and wanted the Court to rule that discrimination based on juror gender should still be legal. 1994! 

If something as fundamental as jury service rights are not respected by rightwing, misogynistic Republicans, are there any other rights under title IX than can be considered secure with a Donald appointee tilting the Court to a 6-3 corporate Republican majority. Remember that this is a court that has held that corporations are people, except that they are a special type of people who have greater religious rights than natural born, biological people. 

At a time when real wages are falling, no employers are being prosecuted for unpaid wages or other employee abuses (at the Federal level) and women are burdened with “essential work” and long hours, while being grossly underpaid, is there any person on the planet that imagines that Roe v. Wade and a woman’s right to control her own reproductive health will not be vacated? 

In the Roe v. Wade context, it is useful to recall that it was not a Constitutional right for married couples to even use birth control measures until 1965, 381 U.S. 479. Unmarried women didn’t get legal access to “the pill” until 1970, 405 U.S. 438. With the enormous profitability of anti-abortion business “politics” it is easy to see a Donald / Roberts Court undoing these decisions on the same faux morality grounds advanced by businesses seeking exemptions from providing health insurance to their women employees on “morality” grounds. 

Can anyone seriously believe that a Donald/Roberts Court won’t “reconsider” and reverse the same sex marriage and gay rights decisions of the past two decades? Obergefell, 576 U.S. 644, and Windsor, 570 U.S. 744, opened doors of equality to more people. But Obergefell was decided in 2015, before the Donald jammed the Court further to the right wing, and against human rights. 

These recent cases were all 5-4 decisions. And every Donald nominee will oppose human equality and will seek to overturn rights that are only recently won. 

As we move forward, there will be cases growing out of the Covid-19 pandemic. And there are already cases testing the application of actual science against science denial, in the climate change context. Real scientists tell us that the Trump virus is insignificant compared with looming climate catastrophes. 

 So it is important that we mourn the loss of Ruth Bader Ginsburg, as we also mourned the loss of John Lewis. But each of them told us, over and over, that it was important to continue the fight for human rights and human dignity - to continue to fight to acknowledge reality, and to press for a better tomorrow. Each of them was successful over the decades of their lives because they kept at it, didn’t let losses deter them, and prevailed because they worked for what was right, however few people saw that right when they started. 

Tom Hall

To truly honor them, we must think less about statue memorials, or naming buildings for them, and, rather, do what they did - work for progress. Work to improve the human condition. 

Tom Hall