The US supreme court on Thursday voted 6-3 in favor of more people getting shot. More formally, they voted to strike down a New York law that restricted the ability of people to carry guns outside of their homes. Experts say it is the most consequential second amendment ruling in more than a decade, and it will make it much harder for states and cities to prevent their citizens from roaming around town armed and ready for shootouts like so many cowboys in Deadwood. One thing that is safe to say is that, as a result of this decision, more Americans will die violent deaths – with freedom!
To dissect this ruling as a matter of legal theory is a waste of time. It’s all pretext. All you need to know about the legal theories at work in the current supreme court is that if states want to restrict your ability to carry a handgun, they are grotesquely exceeding their powers, but if states want to outlaw abortion, well, it is only fair that states have that power.
To portray any of this as the outcome of a coherent, good-faith legal theory would actually make us all dumber. Come on. This is the political outcome of a decades-long political effort by rightwing extremists to influence American law and culture through the courts, since a functional democracy might prevent them from doing so legislatively. (Preventing America from having a functional democracy that would accurately represent the will of the majority of the population, by the way, is part of this very same effort.) Even those pretending that there is a true legal philosophy at play here have to struggle to keep a straight face. “The test is, uh, if we had a seance, can we imagine that a powder-wig-wearing slaveholder with wooden teeth would have imagined this same exact law, word for word, in 1776?”
Come on.
The discussion we need to have about the US supreme court is: what are we planning to do about their power? Because if there is no coherent plan advanced, the default outcome could well be 20 more years of a tiny unaccountable cabal of religious fundamentalists dismantling the entire progressive agenda that was won in the second half of the 20th century. That is not acceptable. The court is now fully in control of people who believe they are on a mission from God to drag America back to the good old days of 1885, when corporations were free to whip who they wanted and noble American men wore six shooters everywhere and women stayed home and had babies whether they liked it or not. It is, I’m very sorry to say, the Democratic party that is going to be responsible for seeing to it that this doesn’t happen. On one side, we have hundreds of millions of Americans who would like to enjoy basic bodily autonomy and rights and not be shot or get cancer from toxic corporate waste. On the other side, we have a half-dozen white Catholic Ivy League Republicans who wear weird robes to work and fully intend to see to it that those hundreds of millions of Americans do not have any of those things. And it’s up to the Democratic party to decide which side they will disappoint.
Five of the six current rightwing supreme court justices were appointed by presidents who lost the popular vote. The Republican senators who vote to confirm them represent a minority of the population. One of the justices, Neil Gorsuch, sits in a seat that was outright stolen, when Mitch McConnell prevented Obama’s nomination of Merrick Garland from proceeding as usual; another justice, Amy Coney Barrett, sits in a seat that she was confirmed for when McConnell reversed that principle and rushed her through before Donald Trump lost his presidency. All in all, we are talking about a wildly unrepresentative group of elitist fringe lunatics, installed in power by the exact opposite of democratic will, accountable only to an imaginary God who instructs them to scrap basic gun control laws in the wake of horrific mass shootings of children, while calling themselves “pro-life”. This is not a foundation strong enough to support a modern nation. Anyone who is not prepared to talk about structural reform should give up their position in public life.
We are well beyond the point at which the typical Democratic “Get out and vote!” messages are anything other than insulting to everyone’s intelligence. Republicans may be greed-driven bigots, but they are also savvy political realists. They have systematically nurtured a caste of preprogrammed ultra-conservative judges, and they have installed them in positions of power through the most ruthless means possible. Today’s supreme court is the highest expression of this 40-year project. Now, those who have pursued this project are coming for their payoff – the end of gun control, the end of legal abortion, the end of voting rights laws, the end of labor rights, the end of corporate regulations of all kinds. If a classroom full of murdered elementary school children is not enough to sway these high priests from their bizarre and dangerous convictions about how America should run, it is time to get more radical about reining this whole thing in.
Adding justices to the supreme court should right now, today, be an urgent mainstream position of the Democratic party. So too should term limits for supreme court justices. These are just basic starting points. These should be accepted as common sense, in the same way that ending the filibuster has slowly come to be. Only bad things will happen, if we do not do these things. Further, more sweeping structural reforms that might have stopped us from finding ourselves in this position in the first place – campaign finance reform, ending gerrymandering, doing away with the electoral college – are equally necessary, but court-specific measures can be done faster. It is hard, I admit, to imagine that our current geriatric, procedure-addicted Democratic party leadership will be able to find it within themselves to propose solutions that are anywhere near adequate to the problem at hand. But conventional wisdom now has to place on all of them the burden of the situation we face: if they are not ready to do the things that would actually fix the problem, no matter how radical those things may be, they are effectively in favor of the problem itself. It is Republican zealots who will end gun control and abortion rights, but every single Democratic senator who decided that packing the court was simply too extreme will have had a hand in helping them, through their utter futility.
One of the greatest underlying flaws of the American power structure is that the people who are in control are never forced to feel the consequences of their own decisions. The supreme court, and the United States Congress, are surrounded by fences and armed guards. When a single mentally ill person went to Brett Kavanaugh’s neighborhood with a gun earlier this month, Congress tripped over itself rushing to pass a bill to further protect judges from threats. Yet the same group of delicate souls is now making the country less safe for everyone else. If the members of the US supreme court want to drag America towards dystopia, fine. Let them walk the gun-filled streets with the rest of us.
Hamilton Nolan is a writer based in New York
