Nel's New Day

July 2, 2022

Supreme Court Destroys Constitution, Part II

[Mass Shootings: July 1, 2022 – In Allen (KY), population under 200, a man killed three law enforcement officers and a service dog while injuring at least five other people. Deputies had tried to serve a warrant related to a domestic violence incident. Many police officers have opposed the loosening of gun laws; this tragedy is only one example of their reason. July 2, 2022 – In Chicago’s Loop, two people were killed and three others wounded in the same area where four people were shot in May. Four other people were wounded in West Garfield Park.

A few slightly more positive Supreme Court rulings:

Concepcion v. United States: Prison inmates can more easily get shorter sentences, using a bipartisan 2018 federal law to reduce racial disparities in prison terms for cocaine crimes. Trial judges asked to resentence inmates may examine a wide range of factors, some of them not related to crack cocaine offenses. Appellate courts disagreed about what judges should do. The 1st, 2nd, 6th, 7th, and 8th circuits allow district courts to consider variables if they wish. The 5th, 9th, and 11th circuits cannot consider any intervening case law or update sentencing guidelines and aren’t required to consider personal circumstances of a prisoner during resentencing. Again, a person’s rights depend on location.

The 19-year sentence for possessing at least five grams of crack cocaine with intent to distribute for Carlos Concepcion was determined by previous state court convictions making him a federal career offender. The 2019 First Step Act might have made him eligible for a shorter term. One of his earlier convictions had been thrown out, and others were no longer considered violent crimes under SCOTUS decisions. The judge refused any changes to his sentence. Brett Kavanaugh wrote the dissent for the four justices, including Samuel Alito, Amy Coney Barrett, and John Roberts, saying that the majority misconstrued the 2018 law.

Torres v. Texas Department of Public Safety: A military veteran’s lawsuit can continue against his former state-agency employer; five justices rejected sovereign immunity shielding Texas. When state trooper, Le Roy Torres, was called to active duty in Iraq, his lungs were damaged by the burn pits disposing of toxic waste. He was honorably discharged but couldn’t perform the responsibilities of a state trooper, and the Department of Public Safety refused Torres’ request for assignment to a comparable job. He sued because his rights under a 1994 law had been violated. A state court of appeals agreed with the department’s excuse of state sovereign immunity, but the Supreme Court ruled that states had waived their rights under the 1994 law, enacted under congressional war powers. The majority cited “unbroken line of precedents,” which some of them ignored in other opinions. Dissenting were Samuel Alito, Amy Coney Barrett, Neil Gorsuch, and Clarence Thomas, who maintained states retained immunity in state, not federal, courts. The solution was for Torres, but no for the confusion of sovereign immunity doctrines.

Remain in Mexico Policy: President Joe Biden won, at least briefly, when the Supreme Court sent a case back to a federal court in Texas debating whether immigrants seeking asylum in the U.S. must stay in Mexico until courts can hear their cases—sometimes as long as five years. Dictator Donald Trump (DDT) established the Migrant Protection Protocols in January 2019. Five justices—Chief Justice John Roberts and Brett Kavanaugh joining the three more liberal justices—ruled against Texas and Missouri to keep the policy in existence. Biden has the right to terminate DDT’s program until the lower court rules, but individual states can keep pushing for the program’s continuance. The five justices stated that the Biden administration acted lawfully.

Dr. A. v. Hochul: On the last day of this past year’s SCOTUS session, six justices told New York state it could keep its coronavirus vaccine requirement for health-care workers that lacked a religious exemption. Alito, Gorsuch, and Thomas dissented. Thomas wrote the 16 health-care workers suing to be exempt on the basis of religion object to vaccines “because they were developed using cell lines derived from aborted children.” Vaccines to not contain these cells. As with tests for rubella vaccines, the coronavirus vaccines were checked for efficacy with fetal cells, using one elective abortion over 50 years ago. Contrary to Clarence’s citing a lie about coronavirus vaccines, they contain only messenger RNA, genetic material instructing cells to make proteins used to train the immune system to fight off the virus along with lipids to help RNC cross cell membranes, salt, sugar, and other substances to help stabilize the other ingredients.  

Thomas may have lost lost—temporarily—the vaccine battle, but he has much bigger plans. And all he needs are laws from states to contest existing Supreme Court decisions. One major plan is to destroy LGBTQ rights from Lawrence v. Texas (2003) and Obergefell v. Hodges (2015). Overturning these two cases would blocks any same-gender relationships under the false guise of sodomy in the first case and eradicates marriage equality in the second. Texas AG Ken Paxton, currently indicted for a number of alleged fraudulent and unethical actions, is only too happy to be complicit: he said he would defend his state’s sodomy law, now defunct after Lawence.  Running for election this fall, Paxton said he could support a law outlawing intimate same-sex relationships. The state law charges someone with a Class C misdemeanor if the person “engages in deviate sexual intercourse with another individual of the same sex.” The rationale has been that sex is only for procreation, but laws typically don’t affect opposite-sex couples although they can also engage in sodomy, “sexual intercourse involving anal or oral copulation.”

Andrew McDonald, a senior associate justice on the Connecticut Supreme Court, pointed out Thomas’ hypocrisy. Biracial marriage is not in the long list of constitutional rights Thomas threatens to overturn although an Indiana member of the U.S. House raised that specter. In a Facebook post, Andrews wrote about the Supreme Court ruling in Loving v. Virginia (1967), permitting the Black justice to marry a white woman in Virginia:    

“Mr. Justice Thomas had much to say today about my loving marriage. Oddly he didn’t have much to say about his ‘Loving’ marriage.”

Thomas has also attacked Griswold v. Connecticut (1965), the Supreme Court decision making contraception a U.S. constitutional right for married couples. Single couples didn’t have the same right until 1972, in the Supreme Court ruling in Eisenstadt v. Baird. The decision in Loving, like those in Griswold, Eisenstadt, Lawence, and Obergefell, was partially on the Equal Protection and Due Process Clauses of the Fourteenth Amendment.

Three justices–Barrett, Gorsuch, and Thomas–may join a far-right legal group to allow states to remove religious freedom by declaring that states are exempt from the First Amendment declaring “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Their position is that Congress can’t establish a religion but that states can. Some theocrats, including the far-right group America First Legal, argue that states have the constitutional right to decide “whether and to what extent they will establish religion within their borders.”

The others in the six conservative Supremes claim they have no intention attacking any other rights. Yet legislators promised not to remove rights with laws to prohibit the “non-existent” critical race theory in public schools before they attacked books about LGBTQ people, sex, women’s rights, etc. Rochelle Garza, the Democrat running against Paxton in November, tweeted:

“Roe was just the first—they won’t stop till they roll back all of our civil rights.”

Freedom of the press also seems to be on Thomas’ cutting board after his dissent to denial of certiorari warranting a review of Coal Ridge Ministries Media v. Southern Poverty Law Center. Thomas wrote that the court should “revisit” (aka “overrule) New York Times v. Sullivan (1964). Public figures—like Thomas—could much more easily sue—and threaten—the press which would lose its ability to be at all critical about these figures such as elected officials—and judges. Destroying the free press, DDT’s desire, is just one more piece of authoritarianism.

DDT’s Supreme Court made a 180-degree turn this year when it opposed the “stare decisis,” “to stand by things decided” to make very slow changes to keep social stability through consistent and evenly applied law. Important reversals of former SCOTUS rulings in the past, such as Brown v. Board of Education of Topeka desegregating public school, moved the country to individual rights. Two major rulings this past week overturned the 1913 gun safety law and erased the policy for agencies to successfully operate with the intent of eliminate any federal regulation of business. No longer can government effectively respond to climate change, and future laws may move that restriction to all federal agencies. The six Supremes voting in favor of this law knew that the Senate filibuster would block any legislation from dealing with crises and destroy the U.S. standing in the world.

Eugene Robinson likens the U.S. Supreme Court’s socially conservative majority to a “secretive and unaccountable junta in long black robes.” He explained:

“Junta is a strong word, but considering that one-third of the justices were appointed by former President Donald Trump—the most authoritarian and dangerously corrupt president in U.S. history—it doesn’t seem like an exaggeration.”

To be continued.

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