The impending destruction of federalism and the Union by the Supreme Court

The New Republic writes about what happens to the US when the Supreme Court intervenes on behalf of radical right states and takes laws or freedoms away from all other states. The destruction of Federalism and maybe the Union itself arises when blue states refuse to comply with conflicting red state demands. That was roughly how America’s Civil War began in 1861. TNR writes:

Historically, when the Supreme Court strays too far from what the vast majority of the public wants and starts catering to a white Southern minority, nothing good comes of it. When the Supreme Court decided in 1857 not only that Dred Scott was not a free man but that no Black person could be a citizen of the United States or enjoy the rights afforded them by the Constitution, it doomed the country to civil war. In the process of protecting “states’ rights” for white Southerners, the Supreme Court led by Roger Taney trampled both human rights and the rights of free states to prohibit slavery on their own territory.

The echoes of the past are even clearer when you compare the language and reasoning of the Taney and the current Roberts court. The written opinion of Chief Justice Taney in Dred Scott v. Sandford relied on the same sort of “originalist” logic used by Associate Justice Samuel Alito in Dobbs v. Jackson. Indeed, this passage by Taney on why Blacks were doomed to slavery, based on an originalist reading of the Constitution, could have been written by Alito last year:

Yet the men who framed this declaration were great men—high in literary acquirements—high in their sense of honor, and incapable of asserting principles inconsistent with those on which they were acting. They perfectly understood the meaning of the language they used, and how it would be understood by others.… They spoke and acted according to the then established doctrines and principles, and in the ordinary language of the day, and no one misunderstood them. [Note: Historians firmly reject the assertion that no one misunderstood the founders -- that is a key lie at the heart of radical right anti-democratic politics and policy] 

The logic used by the court and the effects of its decisions were described eloquently by Adam Serwer in a 2018 Atlantic article: “They carefully framed their arguments in terms of limited government and individual liberty, writing opinion after opinion that allowed the white South to create an oppressive society in which black Americans had almost no rights at all. Their commitment to freedom in the abstract, and only in the abstract, allowed a brutal despotism to take root in Southern soil.”

As if to drive this point home, the Roberts court ruled in Shinn v. Ramirez that it doesn’t matter if a person is innocent based on the preponderance of the evidence; so long as procedure was followed, the state can still execute people. Justice in the abstract, and only in the abstract, all over again.

Today, the Roberts Supreme Court is poised to do similar damage in perhaps as little as 20 years. We’ve already seen the court strike down most of the Voting Rights Act of 1965 in Shelby v. Holder (2013), and it looks ready to finish off the rest of it soon. It’s allowed states to strip Native Americans of their right to vote using the pretext of preventing voter fraud in Brnovich v. Democratic National Committee. The court decided in Gill v. Whitford (2018) that while it’s unfortunate that partisan gerrymandering undeniably ends democracy, there’s nothing it can do about it constitutionally. 

At the same time, the Roberts court is elevating the dominant forces in our society while striking down the civil rights of minorities. It keeps finding that Christian organizations have a right to government money, while at the same time finding they also have a right to discriminate against LGBTQ people, Jews, etc. This is freedom in the abstract: Even if Jews and LGBTQ people were allowed to discriminate against Christians, it would have a negligible impact on Christians compared to Christians being permitted to discriminate against groups that make up much smaller percentages of the population. It is akin to saying Christians can only shop at Kroger, and Jews can only shop at Jewish-run businesses: The harm falls disproportionately on the minority groups.

All the while, the right flank of the court engages in partisan activity. Associate Justice Samuel Alito openly sneers at and mocks justices who support gun control. Clarence Thomas is married to a woman who supported overthrowing the 2020 election and publicly uses right-wing talking points about “cancel culture.” Amy Coney-Barrett served as a “handmaid” in a right-wing Christian cult. Bret Kavanaugh’s hearings painted him as a beer-swilling alleged rapist with ultrarich parents to pay off his debts incurred by his country-club lifestyle.  

But the real Dred Scott moment will be at hand when red states begin trying to extradite people from the blue states for the crime of getting abortions, providing abortions, or providing transition-related care to transgender people. Deep blue states have been creating haven and sanctuary laws to protect women, doctors, transgender people, and parents of trans youth. Both California and Massachusetts have passed sanctuary laws that would prevent people from being extradited for seeking abortions in their states. Given that eradicating abortion and eliminating health care for trans people have become the top social policy priorities for conservatives, the reaction from powerhouses like the Heritage Foundation has been swift: They see these blue-state moves as a direct threat to their agenda.

We may already see the genesis of the case that breaks the camel’s back on the horizon. Luna Younger is a trans child who was involved in a protracted custody case in Texas. She was also supposedly the reason for Governor Abbott’s move to have Child Protective Services remove trans youth from supportive homes. Eventually, Luna’s supportive mother (a pediatrician) gained sole custody and has moved to California. Her father, Jeff Younger (a ne’er-do-well who lied about his military service, employment, and education), is demanding that the Texas politicians override the state courts and attempt to extradite her back to Texas.

Younger is a right-wing Christian authoritarian. He recently tweeted, “Want to save civilization? Take power and rule.” He also has the connections to make Texas test the legality of sanctuary state laws for women and trans people. Eventually, the Supreme Court will have to decide, are people free once they leave a state like Texas? Or do they remain property of that state forever, even if they leave? Last year the Idaho House passed a bill that would make it a felony punishable by life in prison to help a transgender person under the age of 18 to travel out of state for treatment.

Given this court, we know how it’s almost certain to answer. Just as the Taney court allowed the laws of states to reach out and take freedom away from people who fled north and west, so too would the partisan Roberts court allow these same states to extradite and incarcerate women and parents of trans youth who seek legal, necessary medical treatment elsewhere.

Which brings us to the breaking point: The California attorney general would be under heavy pressure morally and from the voters to refuse to comply. At that point, federalism, and the Union, are dead, as states refuse to recognize the legitimacy of court decisions, and the comparisons with the Taney court are complete.

I will continue to warn about the grave danger the hyper-radical Christian nationalists on the Supreme Court represent to democracy, inconvenient truth, civil liberties, tolerance, pluralism and secularism. 

By now, most people paying attention senses that the danger is real and unfolding in real time. Most of those paying attention but who still cannot see much or any danger, e.g., most Republicans and conservatives, seem to unknowingly or at least implicitly support where America’s radical right is taking us. They falsely see this as mostly patriotic, Christian, solidly constitutional, not bigoted, and neutral or good for America.