The SCOTUS Abortion Ruling Highlights the Dire Loss of Democracy in America
If we don't get a correction - get ready for the vigilantes to come for your daughter when she’s raped and looking for options on the internet…
Across America, women and girls are deleting period-tracking apps from their smartphones and fitness trackers so police and bounty-hunter vigilantes from Red states can’t use their data to pinpoint people getting abortions or having “suspicious” miscarriages.
But that won’t be enough.
Ever since Donald Trump and FCC Chairman Ajit Pai ended “net neutrality,” which should have been called “net privacy,” your Internet Service Provider (ISP) — the company that brings the internet into your home (and your phone company when it comes to your smart phone) — can track and record every website you visit, read every email you send or receive, and log every search you do even if you’re using duckduckgo or other “private” search engines.
By 6-3, Republicans on the Court agreed with Trump that the FCC could open the floodgates to tracking you and me and selling our data to anybody they please, as I wrote about at length in The Hidden History of Big Brother in America.
They then can — and most do — legally sell your information to data brokers who compile it along with your social media, government records, purchased records from retailers like pharmacies, and other publicly available information.
Most Americans believe this data is anonymized or only used by responsible companies to deliver ads: they are wrong. Any Republican politician or militia member with a few bucks can buy pretty much anything he wants to know about you, thanks to Trump and the GOP.
Such activity is illegal — a felony — in every other developed country in the world. Only in America is such privacy invasion not only legal but a multi-billion-dollar business. It’s literally the business model of the largest internet-based companies in the country.
And, yes, they’re already doing it to bust and punish individuals for their behavior.
It was such a sale to a data broker that led Monsignor Jeffrey Burrill, a Wisconsin Catholic priest who was the General Secretary of the US Conference of Catholic Bishops, to resign last year when his use of a gay dating app and subsequent visits to gay prostitutes — found by purchasing location data from his phone — was acquired and used against him.
Imagine how much more motivated elected Republican Attorneys General, their police agencies, and vigilantes looking at $10,000-per-person bounties will be to buy and use data from health apps and online searches. It’s a safe bet it’s going on as you read these words: literally millions of such data transfers, sales, and purchases happen every day in America.
We arrived at this sorry place because of a lack of democracy in America. It’s a deficiency we must remedy if we want to remain a functioning republic.
Forty-two Senators represent 21 states whose aggregated total populations are smaller than the single state of California, which is represented by only two Senators. (Those 21 states are Wyoming, Alaska, Vermont, North Dakota, South Dakota, Delaware, Montana, Rhode Island, Maine, Utah, Iowa, Nevada, Arkansas, Mississippi, Kansas, New Mexico, Nebraska, Idaho, Hawaii, West Virginia and New Hampshire.)
The last year a majority of Americans voted to put Republicans in charge of the US Senate was 1996, 26 years ago.
The situation is made even worse by the filibuster, a Senate rule that didn’t exist during the Founding generation and only came about in the 1830s to block discussion and debate about slavery (as I lay out in The Hidden History of the War on Voting).
Today the 50 Senators from Republican-controlled states represent 43 million fewer Americans than Senators from Democratic-controlled states, yet for the past 26 years they’ve used the filibuster to block nearly every meaningful piece of Democratic-sponsored legislation.
We’ve had four presidents in this century: Bush, Obama, Trump, and Biden.
Both Bush and Trump lost their national elections: Bush lost by a half-million votes, and Trump lost by 3 million votes. The last time a majority of American voters elected a Republican president was George HW Bush in 1988, 34 years ago.
Both W. Bush and Trump ascended to the White House because of an arcane structure called the Electoral College, which gives a disproportionate voice to a handful of “swing” states and is something no other country in the world has wanted or bothered to replicate.
As a result, American presidential elections turn almost exclusively on that handful of “swing states” where Republican-owned radio and TV stations daily broadcast rightwing propaganda, and rightwing billionaires pour billions into holding those states in GOP hands.
In the states themselves this lack of democracy plays out in the shocking differences between how people cast their votes and who ends up holding power.
In Wisconsin, Michigan, Louisiana, Pennsylvania, and Kentucky, for example, the majority of voters cast Democratic ballots, resulting in Democrats holding most statewide offices. Each of those states has a Democratic Governor, but each of those states’ legislatures are controlled by Republicans, who received fewer statewide votes than did their Democratic opponents.
As bizarre as it sounds, this is how it works in America because of gerrymandering, a process that no other developed country in the world tolerates outside of Hungary, where rightwing autocrat Victor Orbán put his version of it into place a few years ago to consolidate his own political power.
Gerrymandering in America has, however, received the seal of approval from five Republicans on the Supreme Court, so it stands as being tolerated by the law of the land.
The Supreme Court
Nowhere in the Constitution does it say that the Supreme Court has the power to strike down laws, create law, or grant or remove Constitutional rights. Nowhere. So, how did we get here?
In 1803, in the Marbury v Madison case, the Supreme Court struck down provisions of a law that regulated the judiciary, proclaiming they were taking for themselves the power to alter laws passed by Congress and signed by the President.
President Thomas Jefferson went nuts, writing:
“If this opinion be sound, then indeed is our Constitution a complete felo de se [a suicide pact]. For intending to establish three departments, coordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone, the right to prescribe rules for the government of the others, and to that one too, which is unelected by, and independent of the nation….
President Jefferson continued in full fury:
“The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.
“It should be remembered, as an axiom of eternal truth in politics, that whatever power in any government is independent, is absolute also; in theory only, at first, while the spirit of the people is up, but in practice, as fast as that relaxes. Independence can be trusted nowhere but with the people in mass. They are inherently independent of all but moral law.
“My construction of the Constitution is very different from that you quote. It is that each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action; and especially, where it is to act ultimately and without appeal….
“A judiciary independent of a king or executive alone is a good thing; but independent of the will of the nation is a solecism [a blunder], at least in a republican government.”
The blowback against the Supreme Court claiming they had the power and right to strike down or rewrite laws was so severe that they didn’t meaningfully touch that third-rail again until 1856, when Chief Justice Roger Taney thought he’d “solve the slavery problem in America once and for all.”
The Court’s Dred Scott decision, striking down and modifying numerous US laws by ruling that Black people were “property” across the entire United States, slave or free, set off another firestorm about the Court “legislating from the bench.”
In 1858, before he became Lincoln’s first vice president, Maine senator Hannibal Hamlin, openly rejected the Court’s power to:
“…decide a political question for us ... We make the laws, they interpret them; but it is not for them to tell us ... what is a political constitutional right of this body. ... Of all the despotisms on earth, a judicial despotism is the worst. It is a life estate.”
Two years later, President Abraham Lincoln agreed and refused to enforce the Supreme Court’s decision, saying, essentially, “That was terrible for poor Mister Scott and he’s going to have to go back to slavery, but I’m not going to apply this to any other people in America” (my words, not his).
Many historians argue that this overreach by the Court in Dred Scott led us straight to the Civil War.
After his swearing in as president in March, 1861, Lincoln told the nation in his Inaugural Address:
“[I]f the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made … the people will have ceased to be their own rulers, having, to that extent, practically resigned their government into the hands of that eminent tribunal.”
Again, the Court backed down and went back, for a generation, to simply being the final arbiter of disputes between private parties and between the states, as the Constitution spells out.
That lasted until Reconstruction collapsed as a result of the election of 1876; by the 1880s the Court decided to again try its hand at striking down laws or creating doctrines from whole cloth that Congress never intended.
The most famous of these was the recognition of “corporate personhood,” giving legal fictions (corporations) the same rights laid out for humans in the Bill of Rights, including the right to free speech (1st Amendment), privacy (4th Amendment), against self-incrimination (5th Amendment), and equal protection with humans under the law (14th Amendment, ratified later).
As I laid out in Unequal Protection, the Court itself didn’t actually rule that corporations are persons; that was added into a not-legally-binding headnote by the corrupt Clerk of the Court, John Chandler Bancroft Davis.
But, within a decade, the Court as a whole — delighted with the idea — was ruling in favor of corporate power by citing that corrupt headnote, putting the doctrine into effect from the 1890s to this day.
As a result, along with a ruling that set up Citizens United arguing that billionaires bribing politicians was simply legal “free speech,” corporations and a group of morbidly rich billionaire activists have captured the entire GOP and more than a handful of Democratic politicians.
Thus, it wasn’t until the early 20th century that the Court started tearing down or rewriting laws in really great numbers; today it’s almost all that they do.
And not only is there no Constitutional basis for it but, as I laid out in The Hidden History of the Supreme Court and the Betrayal of America, Congress has the power to stop them from doing it.
So, how do we restore at least a modicum of democracy to our democratic republic? Here’s a short list:
*End the filibuster and pass legislation putting into law the rights defined by the Lawrence, Brown, Roe, Loving, Obergefell, and Griswold decisions.
*Add Washington DC and Puerto Rico as states, giving us 4 more Democratic-leaning senators.
*Expand the size of the Supreme Court to 15 justices, pass a code of ethics binding on members of the Court, and institute term limits.
*End the Electoral College through a newly rebooted national campaign to get laggard states to join the National Popular Vote Interstate Compact that would replace it (we’re about three-quarters of the way there, but it’s stalled recently).
*Pass the For The People act to end gerrymandering, voter suppression, political bribery, and the power of big money in our elections.
*Restore “net neutrality” so our internet companies can no longer legally spy on our every keystroke.
None of these steps are impossible and, were the shoe on the other foot — as it was when Mitch McConnell ran the Senate in 2017 and eliminated the filibuster for Supreme Court justices to push through Neil Gorsuch — Republicans would have done all of them by now.
It’s going to take Chuck Schumer growing a spine and whipping his caucus into shape, or massive electoral victories for Democratic candidates in House and Senate races this fall. Or both.
Are either or both possible? If not, get ready for the vigilantes to come for your daughter when she’s raped and looking for options on the internet…