We use the expression break the law to mean violate or disobey the law. But there is also break as in break into tiny, meaningless pieces. (And violate as in abuse or rape.) The Supreme Court is actively involved in breaking the law in this second sense. GOP controlled State Legislatures and Governors are doing this. DJT is and has been breaking the law in both senses for years in his asserting that anything that serves his immediate, short-term self-interest is truth and the law, anything that opposes him is criminal and evil.
Dan Rather and Elliot Kirschner argued recently that the Supreme Court, which used to and is needed to represent stability, fairness, and temperance has now “become headquarters for a majority group of highly partisan, reactionary players who make clear that they are uninhibited by history, precedent, or the will of the majority of the American people.” Their actions are about asserting power, not fostering the rule of constitutional law.
In one decision they argued for originalism, for the impossible task of sticking with the founding fathers’ original viewpoints. This view ignores the fact that the founding fathers lived in a very different time, where slavery was legal, women and men who didn’t own land couldn’t vote. Where the weapon of choice on the battlefield was a flintlock musket, there were no computers, and the world wasn’t threatened by a climate emergency. And they were all fathers, men.
In another of last week’s rulings, Oklahoma v Castro-Huerta, regarding Indigenous American sovereignty, the Court went against originalism. The ruling asserted a state’s jurisdiction over crimes committed on Tribal Lands. This, as even Justice Gorsuch wrote, violates not only precedent but founding-era understanding of law.
In 1832 the court ruled in Worcester v Georgia that the federal government had exclusive power to manage relations with Native nations, not states. Thus, this new court ruling violated its own legal opinions and destabilizes the rule of law and the court’s function of upholding the stability of the law. Instead, it asserts minority rule.
A Washington Post article by Colby Itkowitz and Isaac Stanley-Becker revealed the Court has agreed to hear a case involving the “independent legislature theory,” a conservative legal theory that asserts state legislatures should have virtually unchecked power over federal elections. It would erode basic tenets of American democracy including applying the rule of law equally to everyone and basing the ultimate source of all law in the people.
“[I]n its most far-reaching interpretation, it could cut governors and state courts out of the decision-making process on election laws while giving state lawmakers free rein to change rules to favor their own party. The impact could extend to presidential elections in 2024 and beyond, …making it easier for a legislature to disregard the will of its state’s citizens.”
Texas and other states have joined in this effort to undermine the rule of law. In its 2021 anti-abortion legislation, it created a sort of vigilante justice by deputizing citizens to sue and enforce the law instead of government officials. And it would pay the vigilantes $10,000 for each successful suit. According to a New York Times article by Sabrina Tavernise, whereas if Texas had put enforcement in the hands of state officials, those officials could be sued by abortion advocates aiming to bring their case to court.
The law could force women into extremely painful situations, of being forced to have children they didn’t choose to or can’t carry. It also makes it difficult to challenge the law in court because it’s unclear who a challenger would sue. According to an open letter from 370 Texas lawyers, it would have a “destabilizing impact on the state’s legal infrastructure.”
A similar line of attack undergirds the refusal of the GOP to pass any legitimate gun regulation. According to the Gun Violence Archive, as of July 4th there were 309 mass shootings in this country in this year alone. And there have been more since then. As the murders of primary school children and teachers in Uvalde made dramatically clear, the argument that “the only thing that stops a bad guy with a gun is a good guy with a gun” is painfully untrue. A child can’t be a good guy with a gun.
Instead, unlimited gun ownership establishes citizen vigilantes arming themselves against other citizens and thus undermining not only community, but the whole idea that the government can and should protect the rights, health, and liberty of its people ⎼ and that only a government acting for the benefit of all has a right to violence, not any person who just decides to enforce whatever they believe. Those who have committed acts of mass violence have often thought of themselves as vigilantes acting in the name of their own form of justice. Thus, unlimited gun ownership increases the chance of violence, puts fear in the streets and in the classroom, and as Tom Nichols warns in an article in the Atlantic, it creates “A Nation of Hostages.”
Just as the GOP have been working to criminalize teaching the history of racism in U. S. schools, DJT, the NRA and their supporters have worked to undermine the application of facts to solving a problem. Research shows, for example: armed guards in schools do not protect children, but in fact results in higher death tolls during a shooting. Concealed carry laws do not reduce violent crimes. What does reduce violence is gun control.
And then we have the GOP threatening its opponents with violence and DJT telling a mob he assembled on Jan. 6, 2021 to directly and violently stop the rule of law and obstruct the legal transfer of power (or falsify the count of ballots)⎼ and about half of the GOP in Congress have supported these lies that precipitated the violence.
Two other related awful Supreme Court decisions. In West Virginia v EPA, it said the EPA did not have the power to regulate greenhouse gas emissions from power plants. But in Kennedy v Bremerton School District a coach, teacher or principal could use their position to bring prayer to a school. So, it favors compelling (Christian) prayer and protects an energy company’s right to pollute but interferes in the government’s ability to protect our right to breathe clean air.
So, we face a situation where the leader of, and many members of one political party are putting the rule of law and our health and safety in jeopardy. The Jan 6 Committee hearings are making these dangers crystal clear to anyone who listens. We can increase the momentum provided by the hearings and help stop the destruction of the rule of law by speaking up, supporting and helping elect Democrats* who will hopefully work to create the fairer, more supportive communities we need and yearn for.
*To help GOTV, google Democratic GOTV postcard campaigns.