CORPORATE
SUPREMES: GOODBYE ANTHONY KENNEDY
By Jack Random
The retirement of Anthony Kennedy upstaged the latest round
of Supreme Court decisions that took yet another blast at civil liberties, the
rights of labor and the democratic form of government. No one who has followed the court could
have been surprised by any of these actions. The Roberts court has never been a fan of minorities,
workers or democracy.
In Trump v. Hawaii, with regard to the president’s infamous
ban on Muslims traveling to the United States, the court upheld the president’s
right to discriminate against members of a religious group as long as the
discrimination is not explicit. In
its longstanding assault on the right to organize the workforce, in Janus v.
AFSCME the court struck down the right of public service unions to collect fees
for collective bargaining from non-union members. Membership in public service unions will likely be reduced
by one-third within two years. No
one can argue with those kinds of results.
Both decisions stand with Bush v. Gore and Citizens United
as among the most damaging in modern history and Justice Anthony Kennedy played
his usual role of casting the deciding vote. Now that distinction will go to the next Donald J. Trump
appointee – an appointee that has already been approved by the Federalist
Society.
As for their continuing assault on American democracy, in
the Texas gerrymandering case Abbott v. Perez, Justice Sonia Sotomayor said it
best: “after years of litigation
and undeniable proof of intentional discrimination, minority voters in
Texas—despite constituting a majority of the population within the State—will
continue to be underrepresented in the political process. Those voters must
return to the polls in 2018 and 2020 with the knowledge that their ability to
exercise meaningfully their right to vote has been burdened by the manipulation
of district lines specifically designed to target their communities and minimize
their political will.”
In other words, blatant and targeted disenfranchisement of
minority voters is certifiably legal as long as you wink at the court when you
walk in the door. These justices
of the perpetual majority will find any reason and any rationalization to allow
the good old boys with whom they are politically aligned to keep on doing what
they have been doing since the days of old Jim Crow. It’s not that they created districts designed to disenfranchise
blacks and Latinos; it’s just that the democratic voters around these parts
tend to be of darker complexion.
Wink.
No one suggests that Kennedy or
Roberts or Alito or Gorsuch or Thomas are racists; they just happen to read the
law like racists have since the writing of the constitution. Minorities may finally have the vote
but by god they won’t get to use it until the Great White Fathers of Washington
are damned good and ready. They’re
not ready yet and – thanks to the next appointees to the court by Donald J.
Trump – they won’t need to be ready for decades.
Racist is what racist does.
Having served for over three
decades, Anthony Kennedy has been the pivotal vote on the court since the
retirement of Sandra Day O’Connor.
He has earned the ire of rightwing ideologues by favoring gay rights, a
woman’s right to abortion and the right of government to regulate
firearms. He recently compromised
on an affirmative action case further alienating the hard right.
But make no mistake, Kennedy was no darling of the left and
his parting shot will be felt for a very long time. Kennedy has long been a member of the corporate justice
clan. Along with Scalia, Thomas,
Roberts and Alito he has always voted against workers and for the most powerful
members of the American political and economic elite.
In short, Kennedy was a conservative judge with libertarian
leanings who fit snugly into the American system of economically motivated
justice. Only on a court that
scorns civil liberties and disdains democracy could someone like Kennedy be hailed
as the last bastion of justice before the fascist court takes over.
That might seem harsh but I’ll stand by it. The Federalist Society has finally
taken full control of the highest court in the land. You’ve got to give it to them. They’ve worked hard toward this end. They have trained multitudes of
prospective lawyers to their way of legal thinking. They have financed and promoted their own kind. And they have placed barriers in the
way of any would-be judge who did not adhere to their philosophy.
Never mind what the founders actually believed, what they
enshrined was the Bill of Rights and the Constitution. They did not vote for or enact into law
the Federalist Papers. They
debated Federalism. They did not
select which papers ought to be enshrined.
We were left with a flawed document containing a set of
principles and provisions for adapting the constitution to a changing
world. Fundamentally, the
Federalist Society is all about closing off the door to adaptation. The framers did not specify that an
individual’s right to bear arms was contingent on his membership in a
well-regulated militia so that context no longer applies. It’s as if the militia clause is there
for window dressing.
The framers naturally did not
contemplate a woman’s right to control her own reproductive system so it
remains beyond the scope of constitutional law. The framers did not envision a society where all men and
women of varied color or sexual identity would live under equal protection of
the law so there can be no protection absent specific legislation – preferably
at the state level. A state’s
right to discriminate must be preserved.
Of course, the framers didn’t
envision a day when Supreme Court justices would rule that an economic
structure would claim all the rights of citizenship. They could not possibly have expected a bank or an
international corporation to claim the right to sponsor politicians at all
levels of government. The framers
didn’t envision a lot of things.
Now we’re up against the
wall. The truth is we’ve been
there for a long time but it’s about to get much worse. Now it’s not only corporate
aristocracy, autocracy and fascism.
Now it’s all of these combined with religious intolerance and a whole
new level of moral regression. Bakers in Colorado are able to discriminate freely against
gays or browns or blacks or longhairs and whoever else they feel superior to
today. Thirty-eight states will
make abortion inaccessible to everyone but the privileged class the moment Roe
v. Wade falls – if that’s even necessary.
Maybe the court will take another shot at criminalizing marijuana. After all, there aren’t enough people
to fill our profit-turning prisons.
Maybe we’ll fill them with the children of migrants seeking asylum.
It’s a brave new world.
So let’s tip a glass to Kennedy
and thank him for holding back the wave these many years. I suppose asking for another year from
an octogenarian is just too much to ask.
Instead, we’ll have to ask
Senators Lisa Murkowski of Alaska and Susan Collins of Maine to stand up and be
counted – not only for a woman’s right to choose but for gays and minorities as
well. We don’t have a whole lot of
hope left but what we do have now resides with you.
Jazz.
“Sonya Sotomayor Stands Up for
Voting Rights. And I’m Her for
It.” Imani Gandy. Angry Black Lady
Chronicles. Rewire.News. June 26, 2018.
JACK RANDOM IS THE AUTHOR
OF WASICHU: THE KILLING SPIRIT AND PAWNS TO PLAYERS – THE CHESS SERIES. HE HAS WRITTEN AND PUBLISHED A SERIES
OF POLITICAL COMMENTARIES UNDER THE TITLE: THE JAZZMAN CHRONICLES.
