The Imperial Supreme Court rises to power over all

This legal analysis is very important to know at least a little about. It directly speaks to how Republican Party fascism will most likely rise to power. It hints at the terrifying influence that (i) brass knuckles capitalism, (ii) rabid Christian nationalism, and (iii) the court’s often contradictory and/or irrational ‘all ends justify any means mindset.’ 

The argument laid out here strongly suggests that American fascism will most likely rise mostly via the least democratic federal institution, the now Imperial US Supreme Court. I posted this yesterday but it got lost in the focus on Trump’s criminal referrals to the DoJ. Due to its importance, I deleted this from yesterday’s original post, and repost and expand it here as a stand alone item. This really does deserve some attention.

The NYT writes:

The conventional critique of the Supreme Court these days is that it has lurched to the right and is out of step with the public on many issues. That is true so far as it goes.

But a burst of recent legal scholarship makes a deeper point, saying the current court is distinctive in a different way: It has rapidly been accumulating power at the expense of every other part of the government.

The phenomenon was documented last month by Mark A. Lemley, a law professor at Stanford, in an article called “The Imperial Supreme Court” in The Harvard Law Review.[1]

“The court has not been favoring one branch of government over another, or favoring states over the federal government, or the rights of people over governments,” Professor Lemley wrote. “Rather, it is withdrawing power from all of them at once.” 

He added, “It is a court that is consolidating its power, systematically undercutting any branch of government, federal or state, that might threaten that power, while at the same time undercutting individual rights.” 

In a similar vein, Justice Elena Kagan noted the majority’s imperial impulses in a dissent from a decision in June that limited the Environmental Protection Agency’s ability to address climate change.

“The court appoints itself — instead of Congress or the expert agency — the decision maker on climate policy,” she wrote. “I cannot think of many things more frightening.”

A second study, to be published in Presidential Studies Quarterly, concentrated on cases involving the executive branch and backed up Professor Lemley’s observations with data. Taking account of 3,660 decisions since 1937, the study found that the court led since 2005 by Chief Justice John G. Roberts Jr. has been “uniquely willing to check executive authority.”  

The study’s authors, Rebecca L. Brown and Lee Epstein, both of the University of Southern California, wrote that “there is little indication that the Roberts court’s willingness to rule against the president bears any reliable relation to preserving the balance among the branches or the workings and accountability of the democratic process.”

“Instead,” they wrote, “there are increasingly frequent indications that the court is establishing a position of judicial supremacy over the president and Congress.”

Why is the Supreme Court accumulating power? To advance the raging Christian nationalist and brass knuckles capitalist agendas that they were knowingly put on the bench to advance. All the evidence so far is that the radical right Christian nationalist-laissez-faire capitalist Supreme Court is going to try to completely rework the federal government and Christianize American society under Christian Sharia law. The court intends to kill secularism, secular law, secular public education, democracy, civil liberties and regulation of business, consumer protections, guns and pollution. That is the court’s agenda. It is the same as the fascist Republican Party’s agenda. 

If the Republican Christofascist Supreme Court gets its way, government, social and commercial power will be wielded by cruel, corrupt, arrogant plutocrats and an enraged White male Christian Taliban. Secular public schools will be replaced by radicalized Christian Madrasas schools that brainwash innocent children to accept and practice hate, intolerance and White Christian bigotry.

Rulers and teachers in the Christian Madrasas

Q: How likely is it that the Supreme Court, staunchly backed by a radical right Republican Party, will be able to radically Christianize America and convert it to some form of a non-democratic, radical capitalist Christofascist theocracy-kleptocracy in the next ~5 years? 0%? ~5%? ~20%? Something else?

Footnote: 

1. Lemley wrote in his Harvard Law Review article:

The past few years have marked the emergence of the imperial Supreme Court. Armed with a new, nearly bulletproof majority, conservative Justices on the Court have embarked on a radical restructuring of American law across a range of fields and disciplines. Unlike previous shifts in the Court, this one isn’t marked by debates over federal versus state power, or congressional versus judicial power, or judicial activism versus restraint. Nor is it marked by the triumph of one form of constitutional interpretation over another. On each of those axes, the Court’s recent opinions point in radically different directions. The Court has taken significant, simultaneous steps to restrict the power of Congress, the administrative state, the states, and the lower federal courts. And it has done so using a variety of (often contradictory) interpretative methodologies. The common denominator across multiple opinions in the last two years is that they concentrate power in one place: the Supreme Court. (emphasis added)

My quibble with Lemley is this. Those Republicans are not merely “conservative Justices on the Court.” They are radical right extremists at the least, Christofascists IMO.