“The judges need to be intimidated. They need to uphold the Constitution. [If they don’t
behave] we’re going to go after them in a big way.” [Tom DeLay; R-TX]
I. “The Far Right wants to control our federal judiciary..to enact its specific reactionary agenda..seem[s] to center on social issues..don’t be fooled. There is another insidious aspect..Economic and political issues are crucial.. If.. successful..this plot will have profound impact on citizens in every arena. They are making efforts to curtail federal regulation of businesses, environmental protections, worker’s rights, bankruptcy laws, tort liability, and property interests..
“This radical group also wants much more control exerted by the states..They want our individual guarantees surrendered back to the states, where enforcement will diminish and maybe disappear altogether.
“Despite the Far Right’s claims..to leave Congress alone, they actually aim to reduce congressional authority. They want ultraconservative judges to strike down a great deal more federal legislation and to negate decades of legal precedent – the very definition of “reactionary.”
“..the extreme Right..have nothing but disdain for the founding fathers’ belief in three branches of government and the prescient system of checks and balances..they are rewriting America’s revolutionary history to accommodate their point of view.” [Catherine Crier: “Contempt” *** this was written in 2005, THINK on how much stuff has happened that she feared would occur…]
*** “Corruption is never an individual act. It always involves groups of people bound by one fundamental rule of an exchange of favors..It allows crimes to be protected with impunity and is characterized by an intolerable arrogance.”
[Roberto Matta]
II.In the name of “religious freedom,” the Rehnquist and especially the Roberts “court” have violated the First Amendment, as understood, 1789-1985; violated the express, DOCUMENTED, intentions, spoken and recorded words; 1776-1800 state constitutions.
1] 1776 New Jersey state constitution, Article XVIII: “That no person shall ever..be deprived of..worshipping Almighty God in a manner agreeable to the dictates of his own conscience; nor, under any pretence whatsoever, be compelled to attend any place of worship..ever be obliged to pay tithes, taxes, or any other rates..for the maintenance of any minister or ministry, contrary to what he believes right.” [E. Gaustad: Faith of the Founders}
2] Gaustad”s “Faith of the Founders”; pages 134-145 – 4 states prohibited a “Religious Oath of Office” [Article VI]; 8 states banned an active minister serving in their government; l0 banned an “established church” – THIS is what the First Amendment means. Period. The same generation which wrote the “Bill of Rights” wrote these state constitutions. If one wanted “separation of church and state – what bigger statement could be made than banning ministers from govt?
*** “To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical.” [Thomas Jefferson: “A Bill for Establishing Religious Freedom”; 1779}
3]. “What unites Protestant fundamentalists and right-wing Catholics today, in both the religious and political arenas, is a shared hatred of secularism and the influence of secular values on culture and public life..At the highest levels of government, the alliance with the Catholic right has provided Protestant fundamentalists with cover against charges..the real goal of American fundamentalism is a right-wing Protestant theocracy.
“..nominations of conservative Catholics to high office carry an extra dividend: it is difficult for anyone to raise questions about conflicts of loyalty between American law and church doctrine without being accused of anti-Catholicism.
“Scalia, a profoundly conservative Catholic as well as a profoundly conservative jurist, has said bluntly..Catholic officeholders should resign if asked to uphold any public policies that contradict church doctrine..It is certainly not “anti-Catholic” to raise the question of whether anyone who owes his high allegiance not to American law but to Canon law belongs on the Supreme Court.”
*** “All religions united with government are more or less inimical to liberty. All separated from government are compatible with liberty.” [ Henry Clay ]
4]. “It was not constitutional analysis but religious doctrine that drove the opposition to Roe. And it was the court’s acknowledged embrace of religious doctrine that has turned American women into desperate refugees fleeing their home states..that very framing..gives away more than members of the majority, all five of whom were raised in the Catholic Church..” {“Religious Doctrine Drove the Abortion Decision”; Linda Greenhouse; New York Times; 7/24/22]
*** “.. no man shall or ought to be compelled to attend any religious worship, to contribute to the erection or support of any place of worship, or to the maintenance of any ministry, against his own free will and consent..” [ 1776 Delaware state constitution; Article I, Section1 ]
5] Justice Brennan, asked about his Catholicism: “What shall control me is the oath that I took to support the Constitution and laws of the United States.”…. “Barrett disagreed. She criticized Brennan’s answer: “We do not defend this position as the proper response for a Catholic judge to take with respect to abortion or the death penalty.” Barrett recommended..judges “conform their own behavior to the Church’s standard” and declined later to repudiate this recommendation.”
*** “The Fathers of the Constitution were not unaware of the varied and extreme views of religious sects..the lack of any one religious creed on which all men would agree..Man’s relation to his God was made no cern of the state.”
[ Justice William Douglas ]
III. NUMBERS
A. “Since 1995, the Court has declared unconstitutional thirty acts of Congress. No other Court in American history has ever done that.” [Martin Garbus: “Courting Disaster”]
B. “..most momentous change in American religion over the last 25 years has been the growth of the religious nones..to 34 percent..a report by the conservative American Enterprise Institute confirms that..and adds..”The most common religious identity among Americans ages 18 to 29 is “none.”” [Tom Flynn; Free Inquiry; Feb-March, 2021]
C. Lee Epstein-Eric Posner study, religion cases in the Supreme Court, 1953-2005: individuals claiming a religious right won “about half the time” [Republicans 56%, Democrats 47%]. Roberts Court “religious claims have prevailed nearly 90% of the time.” “The Roberts Court has been the most polarized on religious issues in seven decades, and probably ever.”
D. Presidential Studies Quarterly study: 3660 decisions since 1937: Roberts Court “uniquely willing to check executive authority {not for “balance” or democratic processes, but judicial supremacy over president and Congress]
“The Court has been, they wrote, “increasingly setting aside legally significant decisions from..lower courts as if they had never happened, invalidating them in brief procedural orders.: [“Amassing of Power By Supreme Court Alarms Scholars”; Adam Liptak; New York Times; 12/20/22]
E. Guttmacher Institute: 75% of people who have abortions have low incomes.”
“The objection to Puritans is not that they try to make us think as they do, but that they try to make us do as they think.” [ H.L. Mencken}
IV. PATTERNS
A. “Under the edicts of the Rehnquist Court, the Bill of Rights is shrinking in significance.” [David Shipley: “Turning Point”}
B. The Defining feature” of the Roberts “court”: a narrow view of enforceable rights; money over merit; routine protection subverted. [L. Tribe & Joshua Matz: “Uncertain Justice”]
C. “For five decades, the Court has, with striking regularity, sided with the rich and powerful against the poor and weak, in virtually every area of the law.” [Adam Cohen: “Supreme Inequality The Supreme Court’s Fifty-Year Battle For A More Unjust America” ]
D. “The Supreme Court is likely to permanently strip the executive branch of much of its power to issue binding regulations..that has profound implications for nearly all areas of federal policy..it could effectively dismantle much of American law..could..potentially leave many future presidents unable to govern.” [Ian Millhiser: “The Agenda” ]
E. “..a confident conservative majority with a muscular sense of power, a notable disdain for Congress, and a willingness to act aggressively and in distinctly conservative ways by: Boldly raising questions not asked or necessary to resolve [Citizens United}; Refusing to defer to decisions by elected and accountable local and national officials [Heller]..; overruling precedents, both old and recent {Citizens, Seattle-Louisville]… [Marcia Coyle: The Roberts Court}
*** “WE can and must write in a language which sows among the masses hate, revulsion, and scorn toward those who disagree with us.” [ Lenin ]
IV. ORIGINALISM – or textualism – or – original intent: these preposterous “theories” – recently COOKED UP – that say an advanced, 21st century nation must be governed by 1787 thinking and conditions of life. IF the Founders intended that [which they didn’t], then why is there an amendment process?????? Why does Amendment Nine mention other rights “retained by the people”??????????
A. “originalism is vulnerable to two powerful criticisms..it is always in some fundamental sense anti-democratic, seeks to subordinate judgment of present generations to wisdom of distant [political] ancestors..to the real problems of reconstructing coherent intentions and understandings from evidence of history raises serious questions..of originalist forays to yield definitive conclusions..”
originalism “..rests on the…legal fiction..most clauses of the Constitution possessed a clear meaning at their inception…” [Jack Rakove: “Original Meaning”]
B. Madison [9/15/1821] rejected original intent of Framers as authoritative guide to the Constitution’s meaning: “As a guide in expounding and applying the provisions of the Constitution the debate and incidental decisions of the Convention can have no authoritative character.” [Leonard Levy: “Original Intent and The Framer’s Constitution”]
C. Justice Story, 1833 “Commentaries on the Constitution”: “In different states..different and very opposite objectons are known to have prevailed..there can be no certainty..the different state conventions in ratifying the constitution, gave the same uniform interpretation to its language, or that, even in a single convention, the same reasoning prevailed with the majority..” [Levy” “Original Intent”]
D. “Modern constitutional law as we have known it ended Friday. When the Supreme Court overturned Roe..and Casey..it repudiated the very idea that America’s highest court exists to protect people’s fundamental liberties from legislative majorities that would infringe on them..the Dobbs decision..is an act of institutional suicide for the Supreme Court..By overturning Casey, it called into question the core idea..justices follow precedent..The majority can read history however it wants..” [[“Originalism was supposed to deliver judicial restraint. It doesn’t”; Noah Feldman; Bloomberg Opinion; 6/26/22]
E. “Judicial supremacy prioritizes the courts over legislatures, agencies, and popular movements. Judicial supremacy is at the heart of the problem we are currently facing..puts our fate in the hands of the least democratic branch..There is a good case to be made that the U.S. Supreme Court itself is a major threat to democracy and the rule of law.” [“Judges will not save us. Truly democratic solutions will”; Zachary Clopton; Chicago Tribune; 8/28/22]
*** “It is revolting to have no better reason for a rule than that so it was laid down in the time of Henry IV. It is still ore revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.” [Oliver Wendell Holmes, Jr.} oo
With Justice For All 