Schwab: Ruling removes all doubt for expanded Supreme Court

By Sid Schwab / Herald Columnist

Until last week, I was agnostic about enlarging the U.S. Supreme Court, even after it handed down several outrageous decisions. I can’t, for example, understand how so-called “originalists” were able to derive from our Constitution that corporations are people and money is speech; decisions that have given “dark money” enormous political power, most of it to Republican benefactors.

Nor could I agree, as Chief Justice John Roberts glibly implied when gutting the Voting Rights Act, that racism no longer exists in America. And, of course, ignoring precedent to overturn Roe v. Wade. Those decisions were based on personal opinion, not interpretations of the law. Judicial activism, in other words. Legislating from the bench. Something conservatives once decried. Nevertheless, though those decisions baselessly furthered a far-right political agenda, and though they strayed far from the law’s letter, the idea of growing the court to thirteen justices still felt questionable.

No longer. Now, we have two justices, Samuel Alito and Clarence Thomas, injecting their black-robed political prejudices to achieve premeditated ends, not even pretending to care how they’re received. Relishing, no doubt, law-abiding liberals’ outrage. The public’s trust in SCOTUS is at an all-time low? Who cares? Chief Justice Roberts, some say. If so, he hides it well. And why should he? Like the rest, he’s untouchable. In fact, in theory, public opinion ought not matter at all in judicial decisions. Assuming they were based in law, that is; an arcane concept that, because of Mitch McConnell’s hypocrisy and the Federalist Society’s unaccountable power, withered years ago.

The 6-3 decision on bump stocks did it for me. Written by Thomas and agreed to by all the court’s “conservatives,” it was cynical parsing of words to achieve a desired outcome, ignoring the clear intent of 1934 legislation that outlawed machine guns. Their decision negated a rare, helpful action that happened under Trump: declaring that rifles so equipped fall under that legislation, after a shooter in Las Vegas, using bump-stock-outfitted AR-15s, killed 60 people and wounded 500 almost instantly.

The 1934 law prohibited citizens from owning machine guns, which it defined as weapons that can fire “automatically more than one shot, without manual reloading, by a single function of the trigger.” A semi-automatic rifle, like the AR-15, requires pulling the trigger for each shot. But when the standard stock (the part that’s held to the shoulder) is replaced by a bump stock, it can fire over 500 rounds a minute, with a single, continuous pull of the trigger.

So, how did Thomas exclude such weapons from the unambiguous 1934 definition? “Single function,” is how. His published opinion contained several diagrams showing how internal trigger mechanisms move during firing. Therefore, they opined, not a single function. Because, though the trigger remains stable during its rapid, deadly firing, inside it doesn’t. That’s a Plastic-Man-level stretch. Also not single: the non-trigger hand has to push the front of the stock forward; two things are happening. Oh, c’mon; the trigger is pulled, once, by the finger and held in place. That’s as single as Melania probably wishes she were. It’s like saying you violated a “don’t move” order because your heart was beating.

Bringing up those other motions suggests the “originalist” majority, ignoring the unmistakable original intent of the law, had to want killing machines back in the hands of citizens. Why? For the next Jan. 6? Remember when Roberts said the court’s job is to “call balls and strikes,” not make law? Good times. Soon, we’ll be told that left hands are people and mass murder is speech.

With typical condescension, Alito wrote, in concurrence, that Congress can simply rewrite the ban. Right. Republicans just quashed an attempt to do exactly that (Huffington Post: tinyurl.com/bumpstock4u). He knew that as surely as he knows flags. Such tendentious reasoning is what convinced me of the necessity to enlarge the court with honest people. Which could happen only if Democrats control both chambers of Congress and the White House after Nov. 5.

Originally, there were six justices. Since then the number has gone up and down. Briefly, it was 10. And five, and seven. It’s been nine since 1869, despite the number of judicial districts they oversee, along with the U.S. population, having increased exponentially since then. Adding justices makes mathematical as well as common, non-ideological sense. Given the extra-legal intransigence of Alito and Thomas, plus their refusal to recuse from cases in which they have conflicts of interest, including wives’ activities and expensive gifts from people having business before them, the political need is clear, too.

It’s more proof that democracy is truly, no exaggeration, seriously, absolutely on the ballot this year. As are the countless lives that will be lost by handing definitional machine guns back to mass murderers. I’m not suggesting the SCOTUS majority approve of mass murderers. But right-wing militias in support of MAGA Trumpism and Christian nationalism? No comment.

Email Sid Schwab at columnsid@gmail.com.