ALITO v MADISON

In 1832, President Andrew Jackson told the Supreme Court to stuff it.

The facts are uncomplicated. When gold was discovered in a section of Georgia that was within the lands owned by the Cherokee Nation, Jackson's government passed a bill to evict all Cherokees from the state, so that white settlers could move in.

The Supreme Court, in a decision written by Chief Justice John Marshall, ruled that Jackson's Indian Removal Act was a violation of a treaty with the Cherokee Nation, and decreed that the federal government had no right to regulate the comings and goings of white settlers on Cherokee land. Jackson famously responded to the decree:

"John Marshall has made his decision. Now let him enforce it."

The results were catastrophic. The United States marched all the Cherokees out of the state in a procession that became known as "The Trail of Tears."  An estimated 4,000 Cherokees died in the process.

It was, of course, all politics. 

Jackson hated Marshall. 

And Marshall had earlier invented out of whole cloth the notion that the Supreme Court of the United States could invalidate laws passed by Congress and signed by the president. Federalist John Marshall created that myth i) to enhance his own power and ii) because he hated Republican Thomas Jefferson, the third president of the United States, who had denied Federalist Adams a second term. (Marshall had been Adams' Secretary of State but failed to recuse himself in the litigation that prompted his power-grab decision.)

The first case studied by every law student in the United States is Marbury v Madison. It was all politics. In the last hours of his presidency, Adams appointed Marbury to a judgeship (as one of the "midnight judges") but the succeeding president, Jefferson, failed to give Marbury a document confirming that appointment. 

Following the rules set out in the Judiciary Act, Marbury brought suit in the Supreme Court against James Madison, Jefferson's Secretary of State, seeking a writ requiring delivery of the document proving his appointment. 

Marshall took the opportunity to hold that i) Adams' appointment of Marbury was altogether legal and proper, and his opinion ii) castigated  President Jefferson for his clear violation of the law in failing to give Marbury the document evidencing his appointment. 

But Marshall then arrogated to himself and the Court a "super power." He dismissed Marbury's claim on the ground that the statute granting the Supreme Court original jurisdiction to hear Marbury's claim was unconstitutional, and therefore the Court had the power to strike down the statute. Mind you, no so-called “originalist" or "textualist" could, then or now, find any clause in the Constitution giving an Article III court the power to strike down laws validly passed by the Article I and Article II "coequal" branches of the government. Despite the lack of Constitutional language explicitly authorizing the power grab, Marshall "reasoned" his way to that conclusion and 190 years later, federal judges still follow that dubious precedent. (Who would give up that kind of power? )

The Jackson comment cited above comes to mind because the forthcoming reversal of Roe may be just the beginning of a legislative fight over abortion. Some right-wing supporters of the Alito decision have regarded it not as the conclusion of the abortion battle, but the opening salvo in a possible legislative battle for a federal law banning abortion throughout the country. That possibility made headlines recently when minority leader Mitch McConnell, who engineered the appointment of the Court's right-wing majority, was reported to have said that a federal legislative abortion ban was certainly "possible."

Skeptics suggest that even a 2024 Republican sweep would be unlikely successfully to support a Republican push for a nationwide abortion ban because it is unlikely the R's could get 60 votes in the Senate. But keep in mind, please, that it was McConnell who brought about the dissolution of the 60-vote filibuster rule when it came to the appointment of Justices of the Supreme Court, and it was McConnell who lied, and thereby manipulated the appointment and confirmation of the current right-wing court, and it was McConnell who lied about all things from court appointments to Trump's responsibility for January 6, and it is McConnell who would certainly be the Leader in any Republican Senate in the near future.

Recently, the Governor of Michigan (she is a Democrat and the legislature is solidly Republican) petitioned the Michigan Supreme Court for a ruling that a woman's freedom of choice is a right guaranteed by the state constitution. 

Now suppose the Republicans succeed in banning abortion nationwide, and a new Ms. Roe makes a legal challenge to the law. And suppose, using Alito's current reasoning, the Supreme Court rejects the challenge and holds the nationwide legislative ban is entirely within the federal government's power to prohibit the "murder" of a zygote. Will Michigan, or New York, or California, or Rhode Island, Vermont, Massachusetts, New Jersey, Connecticut, California, etc. tell the court to "stuff it?"

And assuming a federal ban on abortion, would President Trump (or DeSantis, or Abbot, or Hawley, or Marjorie Taylor Greene) send in federal troops to enforce the ban? Would NY state troopers oppose them?

Is all of this beginning to sound a little bit like our democracy has degraded to 1861 levels? A minority religious right vs. a majority "freedom" caucus, with the minority holding fast to principles that are anathema to the majority -- except that unforeseeable consequences of centuries-old  Constitutional compromises have given the religious minority a power position in the selection of all three branches of government. How long will the majority tolerate that?

Okay, what's the non-violent solution? Put aside. please, for a moment, the possible results of a major Republican victory in 2024. Let's get down to basics. The method and means to prevent this from happening is a major, and I mean major,  Democratic victory in 2022--a Democratic Senate majority that prevails into 2024.  

I confess. I am hardly objective when it comes to this subject because it is difficult for me to see how any woman, or any man with a daughter, could tolerate Alito's deprivation of a woman's right to choose how to manage her personal reproductive choices,-- a right that women have enjoyed for 50 years. And let there be no mistake, the rationale of the Alito opinion, despite its dishonest denials, (how many of the Court's right-wing members are proven liars?) directly threatens other rights such as contraception, gay marriage, private sexual conduct, inter-racial marriage, and much more. (Btw, in a few months, two of the nine Justices will be parties to interracial marriages that have become legal recently only because of 14th Amendment language that supports Roe!)

And let there be no mistake. The Alito-squad's blatant dishonesty and substantive deprivation of human rights have destroyed respect not only for the Supreme Court, but for thousands of hard-working, honest state and federal lower court judges who now live in the shadow of this judicial disgrace.

What hath Donald Trump and Samuel Alito wrought and what are Democrats and Independents going to do about it?

A passing thought: Remember the Willie Horton advertisements? That revolving door ad buried Dukakis. Can't we get one of those for our side?

A bientot.

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