FacebookTwitterGoogle+RedditEmail

More Than Doma

by KEN KLIPPENSTEIN

The Defense of Marriage Act, or DOMA, an acronym I dearly love—it being one letter short of ‘dogma’—was struck down by the Supreme Court on Wednesday. This decision came just days after two other momentous rulings, in which the 5th Amendment right to remain silent was significantly scaled back, and the Voting Rights Act was effectively struck down. Those given to speculation might think that it was a cynical calculation on the part of the Court end with the DOMA decision: all the fanfare that would predictably accompany such a popular decision could drown out the grumbling over the other two repugnant rulings.

Regarding the 5th Amendment, the Court decided that a defendant’s refusal to answer law enforcements’ questions before being arrested or Mirandized is not constitutionally protected. Instead, the defendant must explicitly invoke the 5th amendment if s/he is to remain silent during questioning and not have it used against them in trial. In practical terms, this hurts people who don’t have knowledge of their legal rights and how to exercise them. As for the Voting Rights Act, The New York Times, not usually given to hyperbole when it comes to defending civil liberties, summarized the Court’s ruling as having “eviscerated enforcement of the Voting Rights Act”; also it calls the decision “damaging and intellectually dishonest.” The Times’ implicit assumption that the Court was ever an intellectually honest institution is naïve, recalling a prep school civics textbook’s botoxed account of U.S. history’s wrinkled visage. The true history of the Court tells quite a different story.

In a case called Marbury v. Madison, the U.S. Supreme Court unilaterally granted itself the authority to strike down acts of Congress. To the untrained eye this would appear to be a problematic form of authority, for unlike Congressional leaders, Court Justices are unaccountable to voters, since they are lifetime appointees. But any well-disciplined law student knows better. They call the Court’s virtually absolute authority by its proper euphemism: ‘judicial review’. As this sophistry goes, the Court’s authority to nix the decisions of democratically elected congresspeople is in our best interests, for it is merely there to make sure that the laws they pass are constitutional. Never mind the Court’s clearly unconstitutional decisions, like that which upheld the legality of separate but equal arrangements, in which Blacks could be forced to drink from separate water fountains from Whites (Plessy v. Ferguson); or Dred Scott v. Sanford, which held that Black residents of the U.S. could not be counted as citizens. Also ignore the obviously political decisions that had nothing to do with matters of constitutionality, perhaps most famously that of Bush v. Gore, a 5-4 decision in which the Justices decided along party lines.

The unilateral manner in which the Court gifted itself with legal authority above and beyond Congress recalls Egyptian President Mohammed Morsi’s November 2012 decree. When Morsi granted himself immunity to legal challenges, the world—including the U.S—rightly denounced him as a dictator. When the Supreme Court does it, it’s called prudent. There’s a further similarity between these two cases: both justified their power grabs in the name of the constitution. Whereas the Supreme Court claimed its privileges were selflessly taken up in the interests of maintaining constitutionality, Morsi likewise held that he only granted himself absolute authority so as to ensure the Constituent Assembly’s ability to draft a constitution.

The undemocratic character of the Supreme Court is not surprising. The first Supreme Court Justice, John Jay, believed that the “people who own the country ought to govern it.” This plutocratic attitude is evident in today’s Supreme Court, which is largely composed of former corporate defense attorneys. Setting aside the easy examples (like Justice Clarence Thomas’ time as an attorney for Monsanto and his subsequent favorable rulings for that corporation), let’s look at the liberal Justices. Sonia Sotomayor spent significant time in commercial litigation, defending a multinational firm that specialized in high-end handbags against handbag counterfeiters. Reflecting on having taken up a job as Assistant District Attorney in New York, prosecuting—in her own words—“low grade crimes” largely committed by poor people, she admits that “there was a tremendous amount of pressure from my community, from the third-world community…they could not understand why I was taking this job. I’m not sure I’ve ever resolved that problem.” The note of contrition in her words is interesting: even she seems to recognize that she sold out the poor minority community from which she came. That’s typically what happens when one attends four years of an elite—not to be confused with quality—academic institution.

Elena Kagan, another liberal justice, worked for Goldman Sachs. And then there’s Stephen Breyer, Clinton’s appointee, who is a deregulation enthusiast. He wrote two books advocating deregulation. He also played a significant role in passing the Airline Deregulation Act, a considerable part of the reason that air travel is such a mess in the U.S. In fact, Breyer even offered a recognition, more petulant than Sotomayor’s, about the negative impact of his deregulations: “We sit in crowded planes, munch potato ships, flare up when the loudspeaker announces yet another flight delay”.

So what has the High Court done for ordinary people? One of the better examples would be, of course, its decision to strike down DOMA. But the causal factor behind this decision is probably not judicial generosity; it’s public opinion. Polls from respected polling institutions demonstrate that the majority of Americans support benefits for same-sex spouses of Federal employees; also, a majority supports gay marriage itself. Given these figures, I think the Court saw DOMA’s demise as inevitable, and decided to take credit for it before Congress did. Gratitude shouldn’t be directed to the Court, but to those actually responsible for shifting public opinion away from bigotry against LGBT: activists.

If anything, the Court’s unaccountable authority should be challenged. History demonstrates that when threats to the Court arise, it suddenly becomes generous with concessions. The Court originally struck down the New Deal as unconstitutional. When the public backlash prompted FDR to threaten to dilute the Justices’ power with his Court packing bill, suddenly the Court had a revelation: the New Deal was constitutional after all. That change of heart obviously wasn’t motivated by benevolence. I suspect neither was its decision to end DOMA.

Ken Klippenstein lives in Madison, Wisconsin, USA, where he edits the left issues journal, whiterosereader.org He can be reached at Reader246@gmail.com

Ken Klippenstein is an American journalist who can be reached on Twitter @kenklippenstein or by email: kenneth.klippenstein@gmail.com

More articles by:
June 29, 2016
Diana Johnstone
European Unification Divides Europeans: How Forcing People Together Tears Them Apart
Andrew Smolski
To My Less-Evilism Haters: A Rejoinder to Halle and Chomsky
David Rosen
Birth-Control Wars: Two Centuries of Struggle
Jeffrey St. Clair
Noam Chomsky, John Halle and Henry the First: a Note on Lesser Evil Voting
Sheldon Richman
Brexit: What Kind of Dependence Now?
Yves Engler
“Canadian” Corporate Capitalism
Lawrence Davidson
Return to the Gilded Age: Paul Ryan’s Deregulated Dystopia
Priti Gulati Cox
All That Glitters is Feardom: Whatever Happens, Don’t Blame Jill Stein
Franklin Lamb
About the Accusation that Syrian and Russian Troops are Looting Palmyra
Binoy Kampmark
Texas, Abortion and the US Supreme Court
Anhvinh Doanvo
Justice Thomas’s Abortion Dissent Tolerates Discrimination
Victor Grossman
Brexit Pro and Con: the View From Germany
Manuel E. Yepe
Brazil: the Southern Giant Will Have to Fight
Rivera Sun
The Nonviolent History of American Independence
Adjoa Agyeiwaa
Is Western Aid Destroying Nigeria’s Future?
Jesse Jackson
What Clinton Should Learn From Brexit
Mel Gurtov
Is Brexit the End of the World?
June 28, 2016
Jonathan Cook
The Neoliberal Prison: Brexit Hysteria and the Liberal Mind
Paul Street
Bernie, Bakken, and Electoral Delusion: Letting Rich Guys Ruin Iowa and the World
Anthony DiMaggio
Fatally Flawed: the Bi-Partisan Travesty of American Health Care Reform
Mike King
The “Free State of Jones” in Trump’s America: Freedom Beyond White Imagination
Antonis Vradis
Stop Shedding Tears for the EU Monster: Brexit, the View From the Peloponnese
Omar Kassem
The End of the Atlantic Project: Slamming the Brakes on the Neoliberal Order
Binoy Kampmark
Brexit and the Neoliberal Revolt Against Jeremy Corbyn
Doug Johnson Hatlem
Alabama Democratic Primary Proves New York Times’ Nate Cohn Wrong about Exit Polling
Ruth Hopkins
Save Bear Butte: Mecca of the Lakota
Celestino Gusmao
Time to End Impunity for Suharto’’s Crimes in Indonesia and Timor-Leste
Thomas Knapp
SCOTUS: Amply Serving Law Enforcement’s Interests versus Society’s
Manuel E. Yepe
Capitalism is the Opposite of Democracy
Winslow Myers
Up Against the Wall
Chris Ernesto
Bernie’s “Political Revolution” = Vote for Clinton and the Neocons
Stephanie Van Hook
The Time for Silence is Over
Ajamu Nangwaya
Toronto’s Bathhouse Raids: Racialized, Queer Solidarity and Police Violence
June 27, 2016
Robin Hahnel
Brexit: Establishment Freak Out
James Bradley
Omar’s Motive
Gregory Wilpert – Michael Hudson
How Western Military Interventions Shaped the Brexit Vote
Leonard Peltier
41 Years Since Jumping Bull (But 500 Years of Trauma)
Rev. William Alberts
Orlando: the Latest Victim of Radicalizing American Imperialism
Patrick Cockburn
Brexiteers Have Much in Common With Arab Spring Protesters
Franklin Lamb
How 100 Syrians, 200 Russians and 11 Dogs Out-Witted ISIS and Saved Palmyra
John Grant
Omar Mateen: The Answers are All Around Us
Dean Baker
In the Wake of Brexit Will the EU Finally Turn Away From Austerity?
Ralph Nader
The IRS and the Self-Minimization of Congressman Jason Chaffetz
Johan Galtung
Goodbye UK, Goodbye Great Britain: What Next?
Martha Pskowski
Detained in Dilley: Deportation and Asylum in Texas
FacebookTwitterGoogle+RedditEmail