By now I think we can all agree that “judicial activism” is defined as a decision with which one disagrees. Has there ever been a more activist or hypocritical court than today’s? Antonin Scalia has given up even pretending he’s an “originalist,” whatever that means. John Roberts “calls balls and strikes” the way Jim Joyce calls people safe at first base. (At least Mr. Joyce apologized.)
Where does our Constitution tell us that corporations are people? In which Article or Amendment is it said that money is speech? And how, might one ask, does the court justify declaring a 35-foot buffer zone around abortion clinics an unconstitutional impingement on free speech while maintaining a 90 foot one around their own workplace? (Sorta like Georgia legislators’ “guns everywhere but the capitol building” law.)
Now we’ve learned that, in their personhood, the religious beliefs of certain corporations take precedence over the law of the land. (It’s worth noting that the particular type of organization so exempted represents over half of all small businesses in the U.S.) Far be it from me to mention that the renderers of that bit of wisdom were all male, and mostly Catholic. Not relevant. But consider this: in expelling this effluvium upon us all, the court chose to specify which religious beliefs are worthy of legal protection, and which aren’t. I find that the most amazing and dangerous part of their ruling: a stunning and egregious flouting of our Constitution. If that’s not an affront to all religions and the most basic tenets of keeping government out of it, and a sanctimonious step onto the slipperiest of slopes, I don’t know what is. People of all religious beliefs, even the ones now anointed with special deference by those elders of enlightenment, ought to be alarmed. And fearful. This is not a wise court. This is a regressive, self-important, ideological and cynical bunch of judicial activists. Not only that: regarding the science of contraception they’ve unashamedly embraced the denialistic copout championed by every leader of their party, as exemplified by John “I’m no scientist” Boehner.
It goes without saying that about half of our citizens would disagree with every word I’ve written, and most of the commas and periods. I’m not saying that liberal courts have never tried to wrap the law around their preconceptions. They have. But I can’t think of a decision — no, not even Roe v. Wade — that so adversely affected so many people; and not just women. People of all faiths. And people who might have to do business with them.
I grew up in the home of a truly impartial judge, with whose decisions he himself wasn’t always happy; yet the law demanded it. Oh how we need such people now on our highest court. Clearly, we all see the world through lenses of our own, and our decisions and views differ accordingly. That every tough case in recent years has been decided 5 – 4, with the participants on each side as predictable as the outcomes, confirms that. “Original intent,” without digging up the corpses and tapping into their skulls (although they left many writings that, particularly when it comes to religion, most conservatives prefer to ignore), is fiction. Which happens to be the very word Justice Alito used to describe the concept of corporate personhood on which the Hobby Lobby decision was substantially based. “Useful fiction,” to be more specific. I’m still pondering that one.
Today’s Republican Party, firmly in the grip of the farthest of the far right and based as it is on denialism and exclusion and discrimination and deference to corporatists in all things, rejoices in the recent rulings of the Supreme Court. But unless they harbor a death wish, they really ought not. Reality, whether regarding the climate, education, crumbling infrastructure, or our changing demographics, is not on their side. Wishing it away, or Foxolimbeckifying it, won’t change things. Significantly, the chairman of the Mississippi Federation of College Republicans just resigned and announced his intention to switch to the Democratic Party. His, he said, had become too beholden to the Tea Party, moving too far to the right.
It’s way past time for reasonable conservatives — I can name one or two — to stand up and demand better of their party. Because if we get more judges and legislators like those calling the shots today, democracy is as doomed as shoreline property and minority voting rights. Younger people, evidently, are beginning to understand.
Sid Schwab is a surgeon and former Herald columnist.