How Much Damage Can the Supreme Court Do, Anyhow?

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Michael Davidow

By MICHAEL DAVIDOW, Radio Free New Hampshire

The results of the 2016 presidential election are finally in, and Amy Coney Barrett is the winner.

Our likely next Supreme Court justice champions the legal theory of original intent; that a law must be interpreted as its makers intended it to be, and if you want to go beyond that intent, you need to pass a new law.

This sounds great, until you actually try it. For instance: say the legislature passed a law in 1920 that prohibited automobiles from driving on the sidewalk. I take my Tesla out for a spin, I drive it on the sidewalk, and some crazed progressive cop decides to arrest me. “No automobiles on the sidewalk,” he says. To which I conservatively reply, “Automobiles in 1920 only had four cylinders and ran on gas. They weren’t talking about my Tesla.” So it goes.

It doesn’t end the argument, of course; in fact, it makes the argument more impossible than ever, because instead of discussing what is proper and sensible, we now have to psychoanalyze the minds of people who have been dead for decades.

But “original intent” is not meant to end arguments. It is meant to fight back against so-called activist judges who use things like the Civil Rights statutes to help people who might be gay, or female, or both — categories that weren’t explicitly protected by the people who used to write our laws. The “original intent” argument is not that these aren’t good things to do; but if you want to do them, we need new laws. “We are nice people,” say these judges. “But we can’t help you.”

Given that our federal legislature could not write a new law for love nor money these days, because that system has broken down, of course, those new laws will never get written. And the “original intent” people know this quite well. When Justice Scalia, for instance, was criticized for his blatantly non-original-intent vote in Bush v. Gore, he used this legal argument instead: “Get over it.”

As for Coney Barrett being nominated, in this election year, with so little time to act, blah blah blah — nobody should be surprised. The Republicans are right, up to a point. They won, and they can do what they want. Whether that is good for the country is a separate question altogether. And their clear goal is to enshrine minority rule for as long as possible (hurray!). They have used the Electoral College to do this; they have used the Senate to do this; they have used the courts to do this. The rules allow them to. Complaining does no good.

With regard to the Supreme Court in particular, it helps to remember that it has always been big on minority rule. Time was, of course, that the minority in charge was a progressive one. In fact, that was the main complaint against Earl Warren: that he and his pointy-headed liberal friends were foisting their wild-eyed progressive ideals on an unhappy and unwilling country.

(By the way, have I ever mentioned that Warren was a Republican?  Yes, I think I have. It’s still amazing.)  So now the shoe is on the other foot. Now we will have a wild-eyed conservative court, ignoring the will of today’s unhappy country. 

Thankfully, however, even the Supremes can only do so much damage.

Take the issue of abortion, for instance. Women can now take safe and easily accessible pills in the privacy of their own homes to end their unwanted pregnancies. They no longer have to visit clinics; they no longer need to brave a picket line. That is the trend. The science behind it cannot be reversed. We can hope that abortion becomes less and less controversial, as it also becomes less and less public.

Take the issue of gay rights, if that is even still an issue. Though there is surely still work to do, somewhere, I can’t imagine that even the Supreme Court can teach people to hate again, now that so many people have forgotten how to do it.

Take the issue of environmental regulation. From storms in the gulf, to fires in California, to drought here at home: as things get worse and worse, from coast to coast, even America’s major corporations are beginning to realize that we must adapt to new circumstances. They are starting to lose money. And once Wall Street gets behind going green, we will go green. That’s the American way.

And take, finally, the Senate and the Electoral College. That the Republican Party has so nakedly turned its back on trying to win the popular vote is a sad and pathetic fact. But even there, they can only hold out for so long. There are more minorities in our country than ever before; African-Americans, Asians, Hispanics.

Those communities will eventually outnumber the conservative white rural vote in such a lopsided way that the Republican party is, historically speaking, signing itself up for extinction.

It’s sad, but it won’t be missed.

Michael Davidow is a lawyer in Nashua.  He is the author of Gate City, Split Thirty, and The Rocketdyne Commission, three novels about politics and advertising which, taken together, form The Henry Bell Project.  His most recent one is The Book of Order. They are available on Amazon. takes no position on politics. The opinions in columns and op-eds pieces belong to the author.

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