Recommended Reading: Bench Warfare

NinaIllingworth December 8, 2022December 8, 2022 1964 Civil Rights Act, 303 Creative LLC v Elenis, abolish SCOTUS, American theocracy, Amerikan Musik, Amy Coney Barrett, Andrew Jackson, anti-trans pogrom, Brett Kavanaugh, christian fundamentalism, Christian nationalism, Civil Rights, Clarence Thomas, colonialism, Common Dreams, Counterpunch, cultural genocide, decolonization, Democrats, Essays, expand SCOTUS, FA1, fascism, GOP, GOP is a fascist party, Haaland v Brackeen, independent state legislature doctrine, Indigenous Rights, Indigenous Sovereignty, JA5, Joe Manchin, John Roberts, judicial fascism, Justice, Kyrsten Sinema, law, Moore v Harper, MP6, Neil Gorsuch, Nina Illingworth, Paul Starr, Politics, Pork Reich, Rec Reads, Recommended Reading, religious Right, Republican Party, Samuel Alito, SCOTUS, Stanley Cohen, Supreme Court, The American Prospect, Thom Hartmann, US Congress, US Judiciary branch, US politics, voting rights, Weimar America, white nationalism, white supremacy

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Housekeeping In Weimar America

Throughout the month of October, I spent a lot of my time writing about the top-down, legalist nature of the American fascist creep, and talking about the efforts by which the openly fascist Republican Party was working to obliterate our democratic rights in ways that stretched far beyond any reasonable definition of “politics.” Of course, the then-looming U.S. midterm elections featured prominently in these discussions, but as I repeatedly warned my readers, the fascist threat did not begin, and will not end, at the ballot box. Indeed, much of my focus remained on a six to three, fascist high American Supreme Court currently poised to render the act of voting, altogether irrelevant.

Given that the only update I have for you on the Moore v Harper case is that it remains bad news for folks who don’t like fascism, I thought I’d use today’s Recommended Reading to share three other bits of alarming American SCOTUS analysis. First up, let’s go all the way back to this November 14th, 2022 article by Paul Starr over on The American Prospect, to really bring home the point that the US midterm elections have made SCOTUS the vehicle of choice for the prosecution of the American fascist agenda:

Winners From the Midterms? The Supreme Court’s Right Wing.

Frankly, I’m sharing this bit of judicial election fallout analysis because Starr has the courage to say what most mainstream liberal analysts in the media do not. Namely that losing Congress to an American fascist party that already controls the Supreme Court and much of the judiciary, is probably going to have catastrophic consequences in American life; political or otherwise. In addition to touching on the completely mind-fucking “independent state legislature doctrine” that underpins the Moore v. Harper case, the author also examines numerous other ways a 6-3 hyper-reactionary SCOTUS can effectively govern the country as long as they have the general support of a Republican-controlled House of Representatives.

Most importantly however, Starr takes great efforts to bust the liberal establishment myth that the US Midterm election would halt the emerging American fascist agenda:

“Deadlock between the legislature and executive also leaves the path open for the controlling majority in the third branch of government to pursue its own agenda. This is the big effect of the midterms that hasn’t yet registered widely. Despite the backlash against the Supreme Court’s decision to overturn Roe v. Wade, the Court’s right-wing majority came out of the election as the least-obstructed branch.

The old line that the Supreme Court “follows the election returns” still probably has some truth in it, and there is no question that Democratic candidates benefited from the Court’s abortion decision. But as good as the election was for Democrats, it almost certainly did not dissuade the conservative justices from proceeding on a long and ambitious agenda to undo the legal foundations of liberal government. This is their moment to entrench their legal principles and partisan preferences.”

Personally, I believe that if broadly supporting a literal fascist coup attempt, and using fundamentalist ideology to justify nuking Roe v Wade wasn’t enough to prove the GOP isn’t all that worried about election results, their decision to double down on a politically costly anti-trans agenda even in the wake of a stochastic terror attack, probably should have done the trick. Regardless, as Starr notes, in many ways a fascist-high SCOTUS determined to dismantle democratic life in America, and unchained from Congressional resistance, greatly exceeds the power of reactionary authoritarian politicians in the Republican Party.

How far does their grasp extend? As our next commentator notes, far enough to undo “every bit of progressive legislation from the past 80 years.” To learn more, lets examine this December 7th, 2022 opinion piece written by Thom Hartmann over on Common Dreams:

US Supreme Court Wants to Make America More Bigoted Again

In this piece, Hartmann examines the real intentions behind the American right’s push to hear the 303 Creative LLC v. Elenis case; a thinly-veiled attack on the 1964 Civil Rights Act currently being heard before this again, hyper-reactionary American Supreme Court. This deceptively complex article primarily concerns a well-funded attempt by the religious right to circumvent, and implode state-level anti-discrimination laws using “artistic expression” as a plausible backdoor, or skeleton key to do so. I highly recommend reading the whole thing, but for our purposes here a simple summary of the larger issues the case exposes will do.

First, as Hartmann details, there is absolutely nothing organic about this case at all. The plaintiff has not been asked to make a website for anyone, and this exercise is a brazenly cynical attempt by the fundamentalist right to overturn settled matters of law. Furthermore, the Court itself has, at the direction of its reactionary majority, chosen the nonsense “artistic freedom” freedom argument as the vehicle to do so, of its own volition and by its own power. They are threatening to re-write the law by abolishing planks of it under highly dubious arguments; much the same as in Moore v. Harper. Finally, the repercussions of this action will extend far beyond wedding websites, and could destroy the 1964 Civil Rights Act; which would be catastrophic for marginalized people in America, as noted in the article:

“If this decision is handed down in Smith’s favor and knocks down the Colorado law (and 22 other states’), expect a whole spectrum of businesses run by bigots and religious freaks to begin discriminating against people not protected by the federal Civil Rights Act, with queer people at the top of that list.

If SCOTUS goes the whole distance and guts the Civil Rights Act—like Republicans on the Court did with the Voting Rights Act in 2013—discrimination against women, Blacks, Jews, Muslims, and the disabled will again become part of the American landscape.”

Well I don’t know about you folks, but that doesn’t sound awesome to me. Furthermore this pattern of unwinding established legal protections through seemingly narrow cases that could ultimately implode broad swathes of the law, is repeated up and down the case docket. For more contemporary examples of this process in action, let’s look at this December 7th, 2022 article written by Stanley L. Cohen and published on Counterpunch:

Black Robes: White Straight Christian Male Justice

This article offers an essential summary of three eerily similar cases SCOTUS has chosen to hear; two we’ve covered already, and one we haven’t. Cohen’s blunt assessment of the decision in Dobbs, and the clear intentions of Moore v. Harper, and 303 Creative LLC v. Elenis are worth reading, but it’s his analysis of the terrifying implications involved in a case called Haaland v. Brackeen I’d like to focus on here. On the surface, this is a fight about a challenge under the Indian Child Welfare Act to stop an adoption of an Indigenous child by a white Texas family. Once you dig deeper however, it’s clear that this case is fundamentally an attack on Indigenous sovereignty and legal protections against cultural genocide.

Unsurprisingly, this case too is built around a pastiche of ancient “states rights” arguments, and the perverse assertion that because “Indian” is a racial classification, protecting Indigenous children alone is a violation of the Equal Protection clause of the U.S. Constitution. Yeap, you heard that right, this is foundationally more fascist “reverse racism” propaganda seeking to obtain the force of law, or rather, destroy it. Crucially however, the court’s decision in this case threatens to not only gut the ICWA, but also overturn virtually every bit of standing treaty laws and protections for Indigenous people on the books:

“At its core Haaland transcends the essential but narrow issue presented by the particular facts of this challenge. It aims directly at powers reserved to Indian nations as sovereigns that have entered into hundreds of treaties with the United States, that has benefitted from them, and from which a long-recognized body of federal Indian law and practices have evolved.

If Indians cannot be treated as sovereigns and if you cannot treat Indians differently from non-Indians, does that render all laws and treaties that respect tribal sovereignty and independence as unconstitutional and thus null and void? And what of the benefits that the United State and U.S. corporate elite have realized and continue to by virtue of treaties including access to and use of indigenous lands and waters; inter-state and cross-border rights of way; and trillions of dollars arising from pillaged indigenous natural resources?”

Ultimately, what all of these cases share in common is a cynical, reactionary inversion of social justice and civil rights discourse, paired with a blatant effort to relitigate over a hundred years of American law and democratic protections. This isn’t about chalking up some pithy wins to appease the religious right, this is an open attempt to return America to the Fifties; specifically, the 1850’s. Using the power of SCOTUS, and capitalizing on the ineptitude of their political opposition, American fascists in and around the Republican Party are attempting to transform fascist ideology, and reactionary conspiracy theories, into the standard of law for the nation. In other words, this is an anti-democratic, top-down installation of fascism in American life.

Fallout and Blame

Alright, so now we know what the fascists are doing; what pray tell, has been the response from a Democratic Party that is still technically in control of all three elected branches of the U.S. government? Frankly, your guess is as good as mine; some speeches and a few sternly-worded editorials perhaps? I can surely tell you what they haven’t done however. They haven’t abolished the filibuster, passed laws to protect democratic rights and marginalized people, or pushed to expand the Court in a way that takes power from American fascism. Mostly, Democrats seem content to point at corrupt muppets like Manchin and Sinema while screaming “vote harder.”

And why shouldn’t they be content? After all, they got what they wanted out of this court; a less than embarrassing US midterm result. It certainly won’t be rich Democrats who face the actual fallout from this nightmare SCOTUS session.

The truth is folks, I can’t tell you how these cases are going to come out in the final analysis. Given the composition of the American Supreme Court however, I don’t think it’s hard to guess how this story ends. The fascists may not have dominated the US midterm elections, but right now they have the six most powerful people in America sitting firmly in their corner. There’s a lot of blame to go around, and I can’t promise you justice. What I can promise you is that we will resist, and we will remember. We won’t forget the leaders who failed us, and the robed villains empowering the fascist creep; John Roberts, Samuel Alito, Clarence Thomas, Brett Kavanaugh, Amy Coney Barrett, and Neil Gorsuch.

How does that Andrew Jackson quote the American right is so fond of go again? All you fascists can make your rulings; now let’s see you enforce them.