The Supreme Court is done for as the respected third branch of government it used to be.
The note below appeared as one of my contributions last week to a private email group including a number of lawyers. Three of them, including a retired Democratic Congressional Representative, endorsed my proposals. A fourth, a former Republican member of the Georgia State House, was “appalled.” The photo was included in my email. The proposal was emailed to the group Thursday, October 5, 2018, the day before Kavanaugh’s confirmation and it hasn’t been altered for this posting.
Here’s what I think will and should happen now that Kavanaugh has been confirmed:
1. Leading House Dems should start planning (premised on on having flipped the House) ongoing investigations that include every detail of Kavanaugh’s lies, drunkenness, and sexual assault. They should make his life as an illegitimate “Justice” a living hell of legitimate investigations, which in due course should lead to impeachment.
2. They should reopen the Clarence Thomas case and consider impeaching him. Professor Hill deserves reconsideration by panels including women and in the light of new mores.
3. They should begin exploring options for expanding the court to eleven Justices.
4. They should never ever give up the nuclear option unless they have a supermajority in both houses, and then they should revoke the nuclear option in a way that makes it much more difficult to reinstate.
For example: If Roe is overturned, Planned Parenthood should build a network of clinics at airports in right-to-choose states, and set aside funds to fly women from states that have abolished their right to choose to states that have preserved it, and get them home in time for supper.
For example: Tremendous effort should be put into preventing any reversal of the Voting Rights Act that the illegitimate “Justices” concoct, and into securing voting rights for felons who have paid their debt to society. If voter id’s are needed, there should be a nationwide program to provide them to everyone, funded by our side, and it should be proactive.
For example: Legislatures, not courts, should ensure that ports of entry to the U.S. within blue state borders have every possible protection for immigrants and that immigrants reaching sanctuary states and cities are fully protected.
Bear in mind that “states rights” now means the opposite of what it did fifty or more years ago. It means thwarting oppressive and stupid federal laws and federal court decisions from marijuana to abortion rights to immigration to voting.
We must get into a mind set where we understand that the courts are against us, and act accordingly to work around them. The federal judiciary, especially SCOTUS, is no longer independent, and “the rule of law” no longer includes it. Going forward, the rule of law has to be the rule of legislatures that make laws, not the rule of umpires with one blind eye.
Giving up on SCOTUS is a long slow needed cultural change. It started in 1991 with Thomas & Hill, went on to Bush v Gore and Citizens United, and intensified greatly with the theft of Merrick Garland’s seat. Kavanaugh’s ascent may not be the final nail in the SCOTUS coffin, but it will be a big one. Of course they will still make decisions. What needs to happen is for more and more people to disrespect and disbelieve them, and to work around them any way they can.
Melvin Joel Konner is the Samuel Candler Dobbs Professor of Anthropology and of Neuroscience and Behavioral Biology at Emory University. He studied at Brooklyn College, CUNY, where he met Marjorie Shostak, whom he later married and with whom he had three children.