Elayne Clift (elayne-clift.com) has written this column about women, politics, and social issues for almost 20 years.
BRATTLEBORO-Only three of them remain. They are women with integrity, refined intellect, a belief in human rights, and a deep knowledge of the law. Now they mourn the betrayal of six colleagues on the Supreme Court of the United States (SCOTUS) who fail to respect the oaths they took to protect and preserve a 250-year-old document upon which our country was founded.
One of those women is Justice Sonia Sotomayor, who recently wrote, "The Government has made clear in word and deed that it feels itself unconstrained by law, free to deport anyone anywhere without notice or an opportunity to be heard."
Writing about the due process clause, which represents "the principle that ours is a government of laws, not of men, and that we submit ourselves to rulers only if under rules," she added that "by rewarding lawlessness, the Court once again undermines that foundational principle."
Another is Justice Ketanji Brown Jackson.
"In essence," she writes, "the 'urgency' underlying the Government's argument [about the Department of Government Efficiency gaining access to private data] is the mere fact it cannot be bothered to wait for the litigation process to play out before proceeding as it wishes. […] But, once again, this Court dons its emergency responder gear, rushes to the scene, and uses its equitable power to fan the flames rather than extinguish them."
Along with Justice Elena Kagan, these women have spoken judicial truth to power.
As blogger Thom Hartmann wrote, "The American people just got a taste of authoritarianism wrapped in judicial robes" when in June the Court allowed the Trump administration to deport masses of immigrants to random countries from which there is generally no hope of return.
Shame on the Supreme Court for dealing a death blow to democracy by handing the would-be-king his crown. How are we to understand such cruelty and judicial prejudice as it destroys the rule of law, the Constitution, human rights, and the essential elements of democracy?
As all of this was happening, SCOTUS limited the ability of federal judges to pause the president's executive orders (largely written by his political advisor, Stephen Miller). One such order claims to end birthright citizenship, which violates the 14th Amendment guarantee that anyone born in the United States and subject to its jurisdiction is a citizen.
The court sycophants pleased the president, who gleefully exclaimed that "our country should be very proud of the Supreme Court." This issue may be revisited in the fall.
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Other SCOTUS decisions have reduced the ability of lower courts to keep the White House in check. Now everything is at stake, from shutting down Planned Parenthood to Medicaid and SNAP cuts that can't easily be challenged legally while the entire judicial system breaks down. That's how dictatorships take hold and never let go.
All of this was foreshadowed when the Supreme Court ruled that presidents are immune from criminal liability for a set of "core" acts and decisions, including his attempt to use the Justice Department to obstruct the results of the election.
As the ACLU pointed out in decrying that ruling, SCOTUS left to the lower courts a good deal of the work required to determine which acts and decisions would be immune and which would not. That opened the door for the president, or others who follow, to engage in criminal acts free of accountability.
The ACLU quickly cited the Constitution's principle that no one is above the law in the United States, including the president. The court found that a president would not be immune when acting as an individual, but would be for official actions, even when undertaken for personal ends and criminal purposes.
A blog post by a vendor of legal study guides, "How Do Dictators Destroy Judicial Independence?" underscores how dictators consolidate power to control every facet of governance.
"Dictators, in their quest to consolidate power and control every facet of governance, often target the judiciary as a key institution to manipulate. The independence of the judiciary is a cornerstone of any democratic system, serving as a check on executive power and ensuring that laws are applied fairly and impartially. However, dictators see an independent judiciary as a threat and potential obstacle to their ambitions.
"By systematically dismantling judicial independence, they can transform the courts into tools of repression, allowing them to suppress opposition, evade accountability, and entrench their rule."
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In a 19-page dissent to another case - the Department of Education's appeal of a lower court decision preventing the government from shutting down the agency - Sotomayor decried the court's use of the emergency docket, or shadow docket, applied to recent court decisions. The other two left-of-center justices signed on to her opinion.
"The majority is either willfully blind to the implications of its ruling or naïve, but either way the threat to our Constitution's separation of power is grave," she wrote.
The betrayals of SCOTUS with respect to the Constitution, and the future, are clear. The abandonment of fundamental rulings and rights that made this country unique is a terrible, heartbreaking blow that demands reform.
Dare we hope for that reform in time to preserve our way of life?
This Voices column was submitted to The Commons.
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