CT Blue

The news from the Supreme Court was bad on two fronts yesterday. The court ruled against unions, holding that a public employee could not be forced to pay union dues as it infringed on their first amendment rights. In addition, the sometimes sane Anthony
Kennedy resigned.

A few predictions.

First, some of the Democrats might try to stop it, but ultimately Trump’s pick will be confirmed before the November elections. He or she (probably he) will be in the Gorsuch mold.

The union decision gives us a foretaste of what we will be seeing in the future. Justice Kagan accused the court of “weaponizing” the first amendment, and that’s exactly right. It’s less intellectually honest than Citizens United, which is quite
a feat. Once again, there is an echo of the goings on in the Gilded Age.

The 14th Amendment was passed in order, primarily, to protect the newly freed slaves. It included a guarantee of due process. Put simply, due process means you can’t be deprived of life, liberty or property without notice and an opportunity to be heard
(i.e., a hearing of some sort, with a neutral decision maker), the amount of that process being dependent on the interest involved. For example, you are entitled to more process if you are on trial for your life than if you are involved in civil litigation
in small claims court.

The courts wasted very little time in abandoning the core reason for the amendment’s passage, and proceeded to weaponize the due process clause by inventing a legal doctrine known as “substantive due process” which, boiled down to essentials, amounted
to the court conferring on itself the right to invalidate any law it felt was unfair. It just so happened that those laws tended to be those that protected workers, children, or normal people, and disadvantaged corporations. The great thing about the
doctrine is that since it was wholly invented, it could be used whenever it suited the court’s purpose, and ignored whenever it did not.

The present court is clearly doing the same with the First Amendment (are other Amendments to follow?), using it as a pretext to invalidate laws it doesn’t like, or confer rights (such as a corporation’s right to buy politicians) that it wants to confer.
But it will see no need to follow the logic of those decisions when that would lead to results it does not like.

There is, for example, an argument with a reasonable basis to it that gerrymandering violates the free speech rights of those, primarily Democrats, who are punished for their views by being placed into voting ghettos where, despite being in the majority
in their state or locale, they are relegated to minority status. This court will, without doubt, lay down its weapon when it hears that case, and decide that the First Amendment rights of that majority are not implicated by partisan gerrymandering. Kennedy
was the only one of the horrible five that showed any sign of being troubled by gerrymandering. His replacement will have no compunctions on that score.

That, of course, is only one of the ways in which the court will frustrate any progressive majority we may be able to elect, despite that gerrymandering. The Gilded Age politicians were pretty much extinct by the turn of the century, but the ossified
court lingered on, well into the thirties, when it neutered a fair amount of New Deal legislation. That is likely to happen again.

The Founders would have been the first to admit that the Constitution was not perfect. That’s why they made it possible to amend it. Unfortunately, the most glaring flaws in that document (the Electoral College, the disproportionate strength in the Senate
of the less populated states, and the undemocratic way in which Amendments must be passed) pretty much guarantee that the worst flaws will never be addressed, and that they will, over the course of time (if, as we can only hope, they have not already
done so) drag us down into a plutocracy or dictatorship from which there will no escape. That’s the lesson of history, and that’s where we are at the moment.