Here We Go Again With a Contentious and Divided Country
I’m sensing that the general mood of my friends on the Left is much like when the sentient cheese product* was elected back in 2016. They’re in a bit of a panic. The confirmation of Brett “Hold My Beer While I Grope Her”** Kavanaugh has made them really scared of the very real possibility of things regressing when it comes to social justice and policies. I don’t blame them.
It wasn’t that long ago that children who were in the United States illegally could not receive a free education, basically being sentenced to a life of indentured servitude and second-or-third-class status compared to their peers. That all changed in Plyler v. Doe in 1982. There was a Texas law (where else?) that prevented funding from going to schools for the education children who were in the country illegally. That pesky Equal Protection Clause states that everyone, regardless of citizenship status (because the Clause mentions “persons” and not just “citizens”) is to receive the same protections of the law at any level of government. In a 5-4 vote, the Supreme Court struck down that law and another one requiring $1,000 per child from parents of illegal children. Now, that may seem like a close vote, and it is. But reading the dissent is kind of encouraging:
“Were it our business to set the Nation’s social policy, I would agree without hesitation that it is senseless for an enlightened society to deprive any children — including illegal aliens — of an elementary education. I fully agree that it would be folly — and wrong — to tolerate creation of a segment of society made up of illiterate persons, many having a limited or no command of our language.”
So they kind of agreed that all children need an elementary education for our society to be enlightened. Where they dissented was in the role of the Judiciary in making sure that such a thing happens. Like other conservatives, they wanted Congress to be the one deciding these things and not activist judges. However, the rights of the minorities can’t possibly be left up to the goodwill of the majority. There has to be some sort of an authority that says to the majority that their intent and/or actions trespass on the rights of the minority. In this country, the Supreme Court is such an authority.
Unfortunately, the only way that said authority can work to protect rights is when we all as a society trust and respect the decisions of the Court. The courts need to have legitimacy. When that goes… Well, I don’t want to be around when that happens. So it is absolutely essential that we as a society respect the courts and their decisions. The recent fight over confirmation didn’t help this… It didn’t help this at all.
Take for example what happened in 1954 when the Supreme Court ruled that “separate but equal” segregation in schools was unconstitutional. (Also based on the Equal Protection Clause.) As soon as the Little Rock Nine went to Central High School in Little Rock, Arkansas, the governor sent the national guard to keep them out under the auspices of “keeping the peace.” President Eisenhower then had to federalize the Arkansas National Guard in order to enforce the court ruling. Needless to say, things were a little tense.
You had a governor who was not willing to follow the rule of law, and he was willing to use armed forces to not do so. And you had a President who had to make sure the rule of law was followed, and he was also willing to use the armed forces to do so. Can you imagine if the men in those military units decided not to go along with the President of the United States? Or if the President himself decided that he didn’t like the court’s ruling and didn’t federalize the national guard?
It was a very dangerous game of chicken when those students wanted to go to school, after an order from the Supreme Court of the United States, but with the state government against it, and the federalized troops protecting them.
Seriously, though, you know where I’m going with this. Remember when Kim Davis refused to give marriage licenses to gay couples? She went to jail for a few days, but, basically, the state government molded to her needs instead of punishing her for not following court orders. In that sense, the legitimacy of the courts was diminished. Of course, my most conservative friend (I know you’re still reading) will say that this is a good thing, that the federal government is too intrusive, and that states should have the ability to fight back against that intrusion.
That is all fine and well if this wasn’t a federal form of government, if we didn’t have the Equal Protection Clause, if we didn’t have a separation of Church and State, and if we didn’t have the Full Faith and Credit clause. If we lived in the era where the rule of law was not a thing, and where people couldn’t challenge laws at all, then maybe I could understand this desire to push back against the federal government. But no, we don’t live in that era, and fighting so hard to go back to “the way things used to be” is tearing all of us apart.
Imagine if we did allow undocumented immigrant children to be excluded from an education. How would our society look like? We’re have millions of people walking around not knowing how to read, how to do math, or how to work. “Good,” you’ll say. “Make them go back home.” Well, they’re not. They can’t pick up and go back as children, and they’ll not know “home” as such once they’re adults. You’ll basically end up having to take care of them even more if you don’t educate them as children.
And what if we didn’t respect the court decision on desegregating schools? What if Eisenhower wanted to appease “his base” or some dumb thing like that? Can you possibly imagine?
So my being upset about Kavanaugh doesn’t come from the very credible allegations against him. It doesn’t come from me believing Dr. Ford. It comes from the fact that the Republicans decided to push his nomination even after it was cleared that he was flawed, that he’d barely squeak by, and that he had such a partisan response to the accusations against him. “What goes around comes around” is not sound judicial thought, in my opinion.
As “divided” as the country was during the Obama Administration, Justices Keegan and Sotomayor were confirmed by the Senate by a 63-37 and 68-31 vote, respectively. During the George W. Bush Administration, Chief Justice Roberts was confirmed by a 78-22 vote. Associate Justice Samuel Alito was confirmed by a 72-25 vote. And when there was a ton of opposition to Harriet Miers, she withdrew without much fanfare. During the Clinton Administration, Associate Justice Ginsburg was confirmed 96-3. Justice Bryer was confirmed 87-9. Bush Sr. Administration? Justice Souter 90-9. Justice Thomas was the last nominee before Kavanaugh to be confirmed by a very divided senate at 52-48. You’d have to go back over 100 years to have a similarly divided confirmation… And yet here we are with another one just 27 years later.
Again, you know where I’m going with this.
Since the Reagan Administration, neither party has held more than 60 seats in the Senate, yet they managed to generally agree on Supreme Court nominations. Now we have this contentious confirmation hearing that will spill into whatever the Supreme Court is deciding next. People who don’t like the decisions one way or another will point to these recent hearings as a way to delegitimize the decisions. And then what?
And what if the sentient cheese product decides that he himself doesn’t like a court decision?
Of course, this world doesn’t work on what ifs, but we must be prepared for what ifs. And that, dear reader, is something I wish I didn’t have to deal with. I wish everyone was treated fairly, and that we all respected each other. But no, we need to have friction. We need to be in “us versus them” mode all the time. We’d probably die of boredom if we so much as decided to pull together to beat a common foe like climate change, infectious diseases, or the rise of the Russian oligarchy… Not that we don’t live in an oligarchy of our own. But that’s for another post at a later time.
* “But, Ren, you calling him a ‘sentient cheese product’ is an example of your partisan bias!” Nope. It’s an example of my right to call the most powerful man in the world a “sentient cheese product.” Otherwise, you’re reading too much into what I write. Or, as the First Lady said, “Focus on what I do, not what I wear.”
** Read “*” above.