I’ve been warning about this for many, many years, about how elections have consequences and how Democrats and mainstream Independents had one important reason to vote against Republicans: The Supreme Court. Them not bothering to vote in 2014 and 2016 has put the entire country in jeopardy, which is why if they don’t vote in November, then all hope will be lost.
We’re in this mess because in 2014—another Midterm Election like this year—Democrats and mainstream Independents couldn’t be bothered to vote, not even when warned about the Supreme Court, and that cavalier attitude gifted huge victories to Republicans who then blocked a moderate replacement for Antonin Scalia when the hard-right Justice died. We ended up with Neil Gorsuch, who is very far to the right of the hardline Scalia, and without the intellect of Scalia.
We saw the same indifference, this time combined with petulance, in just the right states in 2016, and that helped elect the current occupant of the White House, that darling of the far-right, who then appointed Gorsuch and who will now nominate someone equally as hard-right, or, more likely, far more so. Republicans plan to push through the appointment as quickly as possible, and odds are they will succeed.
That’s how we got into this mess, and we were on track to see a repeat this coming November. There are three issues I particularly care about where this matters—abortion rights, the right to privacy for LGBT people, and marriage equality—but even for these issues it’s not clearcut what this new reality will mean in practice. There are other issues where the danger is MUCH more clear and present.
First, though, those “big three” issues—and pour yourself a cuppa, because this will take awhile.
Roe v. Wade
The mainstream newsmedia has been talking a lot about how Roe v. Wade, often to the exclusion of all other issues that could be affected. To be sure, overturning that 1973 decision has been the MOST IMPORTANT goal of the “Christian” Right that now completely controls the Republican Party. But what happens after that isn’t as clear-cut as either the Left or the Right like to claim.
Prior to Roe, abortion was completely legal in only four states. It was legal under some circumstances in 15 more states: One only in cases of rape, two only in case of danger to the woman’s health, and 12 “in case of danger to woman's health, rape or incest, or likely damaged fetus”, as Wikipedia put it. That means that—in 1973—abortion was totally illegal in 31 states. Since then, however, some states have repealed or modified their abortion bans, including my native Illinois (which was one of the 31 in 1973).
Currently, eight states have “trigger laws” stating that if Roe is overturned, abortion will be completely illegal in their state. A further 27 US states have a “trigger law” that will ban so-called “late-term abortions”. That means that, thanks to the “trigger laws”, some 35 US states will make abortion completely or partially illegal the moment Roe is overturned. Interestingly, and unusually these days, Illinois’ current Republican Governor Bruce Rauner signed a bill that ensures abortion remains legal in the Illinois if Roe is overturned, but also, and rather extraordinarily, also allows “women with Medicaid and state-employee health insurance to use their coverage for abortions.”
As it is right now, though, US state abortion laws are a patchwork with all sorts of restrictions and impediments added to try and make abortions almost impossible to get. Some of these restrictions might remain in place even if the state doesn’t have a “trigger law”.
Part of the underpinning of Roe was the decision in Griswold v. Connecticut (1965), the ruling thart first established the right to privacy. While Griswold itself is safe for now, it, too could be challenged in the future. My bet, however, is that Griswold won’t be challenged, but Roe will be overturned.
Strategy for the centre and left: Elect liberals and moderates to state legislatures and as governors, because when Roe is overturned, the battles will be in state capitals. In some of the states in question, this will be extremely difficult, or even impossible.
Right to privacy for LGBT people
Lawrence v. Texas (2003) struck down anti-sodomy laws throughout the USA. The laws, even if rarely enforced, provided potential justification for harassment of and discrimination against LGBT people, gay men in particular. At the time of repeal, 15 states still criminalised consensual sex between people of the same gender (and, usually, the same activity by heterosexuals). Of those, only four states have since repealed their bans, which means that should Lawrence be overturned, 11 states would re-criminalise consensual sexual relations between adults, and two of those only criminalise sex between same-gender couples. Overturning this decision has never been a top priority for most of the Right precisely because of the few states it would affect, but it’s nevertheless one of their goals and the Right will look to do it after their big two.
Part of the underpinning of this case, as it was for Roe, was the decision in Griswold v Connecticut. The Lawrence ruling overturned Bowers v. Hardwick, the 1986 ruling that found, in essence, that gay people had no right to privacy. Because Lawrence overturned Bowers, it’s unlikely that Lawrence would be overturned, however, it could be a very specific overturn, say, lowering the bar for states to show a “compelling interest” in making it a crime for consenting gay adults to have sex.
Strategy for the centre and left: Elect liberals and moderates to state legislatures and as governors, because if Lawrence is overturned in whole or in part, the battle will shift to state capitals. In some of the states in question, this will be extremely difficult, or even impossible, given their anti-gay animus.
Marriage equality
After overturning Roe, overturning Obergefell v. Hodges, the 2015 ruling that established marriage equality in all 50 states, is at the absolute top of the Right’s agenda. At the time of the Obergefell ruling, 35 US states licensed marriages for same-gender couples. At the same time, seven states still had bans on the books, at three had partial bans. The remaining five states had bans that had been overturned, but the decision was stayed indefinitely.
If Obergefell is overturned entirely, the bans in those seven states would go back into effect, and the stay on the five would have to be revisited, meaning those states could be embroiled in court action for years, however, if the cases got to the Supreme Court, it’s reasonable to expect that all 15 states that had some sort of ban in place or in limbo would ultimately get their bans reinstated. That doesn’t mean, however, that states might not then choose to enact marriage equality, and some would.
The bigger issue is federal recognition, because of United States v. Windsor, the 2013 case in which the Supreme Court ruled that Section 3 of the infamous “Defense” of Marriage Act was unconstitutional because it restricted federal marriage benefits to married opposite-gender couples only. By then several states had enacted marriage equality, and that meant there were gay US citizens being denied the rights of marriage available to opposite-gender couples living right next door.
If Obergefell is overturned, then Windsor could be, too, but I think that’s unlikely. I think what’s more likely to happen is that the federal government would change its definition of marriage to recognise only “place of domicile”, rather than the current standard for most federal policies and rights, “place of celebration”. That matters because with Obergefell gone, and marriage for same-gender couples re-banned in some states, married same-gender people living in those states would then lose their federal rights under law, including taxation, immigration, and other issues. To the Radical Right, taking away the legal rights of marriage for some gay people is better than nothing, even as they work to repeal marriage equality at the state level.
Obergefell is strongly underpinned by the Lawrence decision, as well as Griswold. If either of those two are overturned, Obgergefell is on far shakier ground. My hunch is that neither Lawrence nor Griswold will be challenged for now, but Obergefell will be and will likely be overturned, or be so limited as to be effectively overturned.
Strategy for the centre and left: Elect liberals and moderates to state legislatures and as governors, because if Obergefell is overturned in whole or in part, the battle will shift to state capitals. As with the other issues, in some of the states in question, this will be extremely difficult, or even impossible, given their anti-gay animus. However, for this issue electing liberals and moderates to Congress and as President is important for ensuring that “place of celebration” is the standard used to recognise marriages under federal law, and to ensure that married same-gender couples aren’t discriminated against by the federal government.
Other issues with a clear and present danger
Voter suppression: The current Court has been moving toward endorsing Republican voter suppression efforts—basically, their legislative plot to keep poor non-whites, who usually vote Democratic, from being able to vote. A far more conservative Court will make it easier for Republicans.
Gerrymandering: This is what allows Republicans, a minority party, to have power far beyond its small numbers. The courts were starting to fight back, the current Court was starting to move toward allowing it. Expect a hard-right Court to allow Republican gerrymandering.
Economic rights: A more hard-right Court is likely to expand the power of corporations, to greatly accelerate the weakening of unions, and to allow rollbacks of health, safety, and even environmental protections, all because corporations want all that.
Expanded discrimination: It is inevitable that a hard-right Court will rule that people and businesses can discriminate against LGBT+ people as long as they can pretend they’re doing it for “sincerely held religious beliefs”, and this is regardless of whether or not Obergefell or Lawrence have been overturned. Eventually, even that religious pretense won’t be needed. The question here is how far the Court will go in allowing other people to be discriminated against: Race? Religion (or lack of)? National origin? The list is actually endless, and just needs the right case.
The biggest threats remaining
Two of the four “liberal” justices are quite old, and may not live or wish to serve until a rational president takes office in 2020 or 2024: Ruth Bader Ginsburg is 85, and Stephen Breyer is 79. If the current regime gets to replace them, too, the court will have SEVEN far-right justices against only TWO rational opponents, Sonia Sotomayor (65), and Elena Kagan (58). And, it would be that way for a generation or more.
On the other hand, rightwing judge Clarence Thomas is 81. If he was to die or retire when a Democrat was president with a Senate controlled by the Democrats, then this could swing the balance back toward the moderates, as well as make it safe for Ginsburg or Breyer to retire. But that doesn’t help until January 2021, when we can replace the current occupant of the White House with a sane and rational replacement—although that assumes the current occupant loses a reelection bid, which is by no means a sure thing.
Also, there’s also no guarantee that, seeing the writing on the wall, Thomas won’t retire before 2020 to assure the rightwing majority continues. It is absolutely certain that if the Republicans retain control of the US Senate after the November elections, then the most powerful rightwingers in the USA will pressure Thomas to retire as soon as possible so they can hedge their bets and make sure they keep the Court rightwing.
So, the strategy for the centre and left: Elect Democrats to the US House of Representatives and the US Senate this November to ensure that if a vacancy happens before 2020, Republicans won’t be able to fill it. Then, in 2020, they must elect more Democrats to Congress and as president to make it safe for Ginsburg and Breyer to retire and be replaced by liberals.
The current reality
There’s little or nothing that can be done now to save the Supreme Court: It WILL tilt sharply rightwing. However, it’s still possible to prevent it from toppling over the edge, and maybe even to restore the balance. To do that, it’ll be necessary to organise in all 50 states to elect more Democrats, ideally Progressive Democrats, to make it possible to ensure actual liberals are appointed to the Court. That’s also necessary to protect the people who will be hurt as the Right overturns landmark Supreme Court cases.
In other words, the power is still in our hands. However—and this is a HUGE caveat—if Democrats and centrist Independents don’t vote in November, there’s really no hope of stopping the slide toward rightwing authoritarianism.
Like many other people, I’ve been warning about this for many, many years. Americans had better finally pay attention.
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