· 10 min read
- American democracy is broken.
- What good are answers if the system can’t implement them?
- Senate Minority Leader McConnell and Chief Justice Roberts are telling us something We the People need to consider as we vote in 2022 and 2024
- Before climate change or any other issue of the day is adequately dealt with, the political system must be repaired.
- The “fix” can only come about when rational truth-based debate replaces the slings and arrows of today’s political tribalism.
The Supreme Court has abandoned a fifty-year precedent at a time when the country is desperate for stability.
Senator Susan Collins (R-ME)
Introduction
Answer me this—if you can’t trust the word of a Supreme Court Justice, who can you trust? It’s a question many in the nation are asking themselves in the wake of the Supreme Court’s overturning Roe v Wade by its decision in Dobbs v. Jackson Women’s Health.
Roe is a 50-year-oldcase that made abortion a constitutionally protected right of women. The US Supreme Court’s (SCOTUS) decision means it’s now up to the states to write the rules. According to PEW Research, 26 states are certain or likely to ban abortion based on the Dobbs decision.
Before his confirmation, Justice Kavanaugh told Republican and Democratic senators that Roe is considered settled as a precedent of the Supreme Court, entitled [to] the respect under principles of stare decisis(Emphasis added)—which is Latin for to stand by things (previously) decided.Justice Gorsuch gave similar assurances to Senators Collins (R-ME) and Manchin (D-WV).
So, what caused them to break their words? The answer is nothing—other than the two justices being confirmed for lifetime positions on the nation’s high court bench.
The public announcement in Dobbs came as no surprise. The real shocker happened earlier when Justice Alito’s draft majority opinion found its way out of judges’ chambers and onto the front pages and websites of nearly every media outlet in the land. It was the first time in Supreme Court history that a complete draft of a decision became public before its official release.
What was most alarming about Dobbs, beyond decision the decision itself, was the reversal of Roe in a single swoop. Ordinarily, the Supreme Court walks back decisions of such import in smaller steps. Although complete 180-degree turns have happened, they are the rare exception to stare decisis.
Why the smaller steps? The steady phasing into a new regime gives society a chance to catch up. Think of the shock to society—North and South—that Brown v. Board of Education had on America in 1954.
Because of a string of previous decisions, Brown was expected. Moreover, the high court refrained from ordering immediate dismantlement of the dual school system, leaving the formulation of specific orders and policies in the hands of district courts and elected lawmakers.
How much more volatile would the resistance to desegregation have been had the Brown decision come without warning, i.e., cases decided before, as in Roe? Lasting cultural change rarely happens quickly; it’s a process.
Chief Justice Roberts believed the conservative majority could have achieved what they wanted—to uphold the Mississippi law—without sweeping 50 years of precedence into the judicial dust bin.
The Court’s decision to overrule Roe and Casey[i] is a serious jolt to the legal system— regardless of how you view those cases.A narrower decision ...would be markedly less unsettling, and nothing more is needed to decide this case.
In 2015[ii], the high court described the rationale behind the stare decisis doctrine as promoting the evenhanded, predictable, and consistent development of legal principles, fostering reliance on judicial decisions, and contributing to the actual and perceived integrity of the judicial process.(Emphasis added)
Roberts is expressing the tack the Supreme Court has historically taken. However, recently announced SCOTUS decisions in the just-concluded term suggest that slow and steady will not be the way of the newly conservative Roberts court.
The looming questions facing Democrats -how far and how fast are the six conservative justices prepared to return federal powers to the states and the nation to the 1970s and what Democrats can do about it.
Evenhanded, predictable, consistent, and integrity are not just words. They are the rudiments of American democracy.
The Dobbs decision is unsettling for several reasons, starting with the broken promises of Justices Gorsuch and Kavanaugh. Senator Manchin said of the Roe decision—
I trusted Justice Gorsuch and Justice Kavanaugh when they testified under oath that they also believed Roe v. Wade was settled legal precedent, and I am alarmed they chose to reject the stability the ruling has provided for two generations of Americans. (Emphasis added)
Roe and Dobbs are about more than the protected right of women to make their own decisions concerning their health and welfare. Abortion has been a major point of contention between Republicans and Democratssince Roe was decided in 1973. A war that must be settled—peacefully if not amicably—for the sake of the nation.
Democrats win votes in urban and coastal areas; Republicans gain seats in the rural middle of the country.
I’ll be blunt. American democracy is broken. Until it is repaired, the nation’s policymakers will be even less capable of addressing the critical issues of the day--climate change, inflation, healthcare, immigration, and justice—than they’ve already shown themselves to be.
Does this mean war?
The cultural differences between red states and blue and between blue cities and red states are pronounced. They’re becoming more significant with time.
It’s as if Democrats and Trump-centric Republicans—perhaps all Republicans—are living in different realities. To an extent, that divide is true—at least true enough for government work. Frank Jacobs describes the two worlds in this oversimplified[iii] definition:
Those opposing blocs, according to Jacobs, consolidated into red and blue countries—euphemistically speaking—decades ago. The breakdown of states along the lines of those banning abortion overlays neatly with those where Republicans—many of whom are Trump-centric—voted for Trump in 2016 and 2020.
Senate Minority Leader McConnell agrees with Jacobs’ definition of the nation’s voting blocs and his assessment that suburban voters be the deciding factor in the coming midterms and the 2024 presidential elections. The Democrats have the same need to convince suburban voters as the GOP.
It is no secret that we have lost ground in suburban areas. We pretty much own rural and small-town America, and I think this is a sensible solution to the problem before us, which is school safety and mental health.
Turnout is generally low for midterm elections. At least until a week or two ago, Republican voters appeared to have more enthusiasm to cast their votes than the Democrats. The party of Lincoln and Trump has smelled blood in the water since Biden was sworn in as president.
The Supreme Court’s decisions in the waning weeks of its term on issues ranging from carrying concealed weapons to EPA’s authority to regulate harmful greenhouse gas emissions may have changed things—particularly for suburban voters.
A recent survey asking Will the US have another civil war found that 46 percent of the participants thought we would[iv]. I would have said the poll question was nonsense a few years ago. Now, I’m not so sure, and the thought is sobering.
We, the People, need to ponder the problems we’re having with each other carefully and honestly—because they’re eating away at the foundation on which nearly 250 years of American democracy rests.
As tensions between the tribal political parties increase, so does the possibility of another civil war. We’re talking about an actual shooting war between Americans where no quarter is given.
Picture scenes like the January 6th seditious assault on the US Capitol being directed against state and local seats of government, businesses, churches, and schools—but on a scale and intensity closer to Putin’s war on Ukraine.
Think another civil war is an impossibility? We already have evidence of the depth of the national division in plots to kidnap governors and armed men who stake out the homes of Supreme Court Justices.
Trump’s base is roughly thirty percent of the nation’s voters, many of whom want to turn his lies about the past into a future reality that undermines the Republic—and for what, a bully’s ego?
We are a nation in crisis—looming out there is a potential calamity that trumps all others. It is a crisis from within.
Extremes beget extremes. The tension between the warring parties keeps things in near-constant turmoil—opening the door to demagogues and oligarchs.
How can We, the People, and our leaders solve society-based problems of healthcare and climate—of inflation and national security—when we can’t even agree if Joe Biden legitimately won the White House in a free and fair election or whether the assault on the Capitol was seditious or just some rambunctious tourists anxious to see Congress at work and the hanging of Vice President Pence.
The longer the culture war continues, the harder it will be to pull society back from the brink. There will be too much downward momentum to turn a ship of state as large and laden as the US.
Political compromise has never been easy. Tribalism has made it nearly impossible. In an era of easy epithets
Trump didn’t start the culture war(s). However, he normalized and helped galvanize the feelings of disaffected voters and brought them under his titular command as the head of the Republican Party and president.
A lesser Huey Long, Trump tells his largely White working-class supporters that it’s OK to be angry about their lot in life and that they are right to expect to prosper. After all, this is America, and America is theirs by birthright—others need not apply.
Trump’s the damaged darling of a significant swath of the religious right. They know who he is and what he is but support him anyway. Perhaps they believe the end justifies the means? In any event, they see a divine hand at work in the irony of a sinner like Trump wanting to carry their cross.
The former President hasn’t just normalized the anger of his base. He’s given them targets to shoot at—RINOs (Republicans In Name Only) and the Woke.
Who the “Woke” are exactly remains something of a mystery. However, it’s a safe bet that Trump invokes it to define anyone who either doesn’t agree with him or has said it’s time to move beyond the 2020 elections.
The former President has managed to take reality out of the policy debate. There’s no place for truth in Trump’s lexicon. He’s weaponized facts by making them part of the tribal struggle he’s peddling.
Trump routinely vilifies and humiliates the messenger who dares to bring him any bad news. Dr. Fauci says it’s a good idea for people to wear masks.
Trump turns it into a taunt. Fauci is insulting you; he wants to take your freedom; he’s a Woke physician who doesn’t even know what he knows. The approach is an ideal cover for the former President’s seemingly gross ignorance of everything from the Constitution to climate science.
If what I say—no matter how ridiculous—is as true as what you say—no matter how preposterous—how will we ever agree on anything without it being a total defeat for one of us? How, too, can we find mutually acceptable solutions to the day’s problems without some way of distinguishing reality from bulls**t?
What’s left once you take facts out of the policy debate? Anarchy, nihilism, chaos—just the sort of conditions aspiring demagogues and oligarchs feed off—and get phat while doing it?
Author's note to readers. This is the first in an occasional series. Part 2 will pick up the conversation and highlight America First candidates' rise in the 2022 party primaries and the midterm elections in November.
Lead image courtesy of Tyler Merbler under a Creative Commons Attribution 2.0 Generic license
[i] Planned Parenthood v. Casey, 505 U.S. 833 (1992), was a landmark United States Supreme Court case regarding abortion. In a plurality opinion, the Court upheld the right to have an abortion that was established in Roe v. Wade (1973),
[ii]Kimble v. Marvel Entertainment, LLC
[iii] Per his own descriptionof relationship between reds and blues.
[iv] Younger respondents (aged 18 to 29) saw the prospect of a civil war in greater numbers (53 percent) than other age groups. Respondents 65 and older saw the chance of an uncivil conflict in the lowest numbers (31 percent).
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