Click amount to donate direct to CounterPunch
  • $25
  • $50
  • $100
  • $500
  • $other
  • use PayPal
DOUBLE YOUR DONATION!
We don’t run corporate ads. We don’t shake our readers down for money every month or every quarter like some other sites out there. We provide our site for free to all, but the bandwidth we pay to do so doesn’t come cheap. A generous donor is matching all donations of $100 or more! So please donate now to double your punch!
FacebookTwitterGoogle+RedditEmail

More Than Doma

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

More articles by:

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

October 22, 2018
Henry Giroux
Neoliberalism in the Age of Pedagogical Terrorism
Melvin Goodman
Washington’s Latest Cold War Maneuver: Pulling Out of the INF
David Mattson
Basket of Deplorables Revisited: Grizzly Bears at the Mercy of Wyoming
Michelle Renee Matisons
Hurricane War Zone Further Immiserates Florida Panhandle, Panama City
Tom Gill
A Storm is Brewing in Europe: Italy and Its Public Finances Are at the Center of It
Suyapa Portillo Villeda
An Illegitimate, US-Backed Regime is Fueling the Honduran Refugee Crisis
Christopher Brauchli
The Liars’ Bench
Gary Leupp
Will Trump Split the World by Endorsing a Bold-Faced Lie?
Michael Howard
The New York Times’ Animal Cruelty Fetish
Alice Slater
Time Out for Nukes!
Geoff Dutton
Yes, Virginia, There are Conspiracies—I Think
Daniel Warner
Davos in the Desert: To Attend or Not, That is Not the Question
Priti Gulati Cox – Stan Cox
Mothers of Exiles: For Many, the Child-Separation Ordeal May Never End
Manuel E. Yepe
Pence v. China: Cold War 2.0 May Have Just Begun
Raouf Halaby
Of Pith Helmets and Sartorial Colonialism
Dan Carey
Aspirational Goals  
Wim Laven
Intentional or Incompetence—Voter Suppression Where We Live
Weekend Edition
October 19, 2018
Friday - Sunday
Jason Hirthler
The Pieties of the Liberal Class
Jeffrey St. Clair
A Day in My Life at CounterPunch
Paul Street
“Male Energy,” Authoritarian Whiteness and Creeping Fascism in the Age of Trump
Nick Pemberton
Reflections on Chomsky’s Voting Strategy: Why The Democratic Party Can’t Be Saved
John Davis
The Last History of the United States
Yigal Bronner
The Road to Khan al-Akhmar
Robert Hunziker
The Negan Syndrome
Andrew Levine
Democrats Ahead: Progressives Beware
Rannie Amiri
There is No “Proxy War” in Yemen
David Rosen
America’s Lost Souls: the 21st Century Lumpen-Proletariat?
Joseph Natoli
The Age of Misrepresentations
Ron Jacobs
History Is Not Kind
John Laforge
White House Radiation: Weakened Regulations Would Save Industry Billions
Ramzy Baroud
The UN ‘Sheriff’: Nikki Haley Elevated Israel, Damaged US Standing
Robert Fantina
Trump, Human Rights and the Middle East
Anthony Pahnke – Jim Goodman
NAFTA 2.0 Will Help Corporations More Than Farmers
Jill Richardson
Identity Crisis: Elizabeth Warren’s Claims Cherokee Heritage
Sam Husseini
The Most Strategic Midterm Race: Elder Challenges Hoyer
Maria Foscarinis – John Tharp
The Criminalization of Homelessness
Robert Fisk
The Story of the Armenian Legion: a Dark Tale of Anger and Revenge
Jacques R. Pauwels
Dinner With Marx in the House of the Swan
Dave Lindorff
US ‘Outrage’ over Slaying of US Residents Depends on the Nation Responsible
Ricardo Vaz
How Many Yemenis is a DC Pundit Worth?
Elliot Sperber
Build More Gardens, Phase out Cars
Chris Gilbert
In the Wake of Nepal’s Incomplete Revolution: Dispatch by a Far-Flung Bolivarian 
Muhammad Othman
Let Us Bray
Gerry Brown
Are Chinese Municipal $6 Trillion (40 Trillion Yuan) Hidden Debts Posing Titanic Risks?
Rev. William Alberts
Judge Kavanaugh’s Defenders Doth Protest Too Much
FacebookTwitterGoogle+RedditEmail