The Supreme Court And The Demise Of The “Make America Great Again” Ambition

“…We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain inalienable rights, that among these are life, liberty and the pursuit of happiness...”

The second paragraph of the Declaration of Independence begins with words that are fundamental to the United States of America. It goes on to say that the role of government is to protect these rights. Yet three recent Supreme Court decisions will damage, not protect, the ability of citizens to live lives that realize the Declaration’s ideals. The Court ignored the dignity of existing human life and tragically failed to deliver on quality of life concerns critical for thriving. It will hamper societal progress and impede entrepreneurial and business potential. The decisions are based on antiquated legal doctrine interpretation in full discordance with overall American public sentiment. They further erode a societal fabric and make society even more inept at tackling the challenges of social injustice, inequality, mental illness, and climate change.

In the Dobbs versus Jackson Women’s Health Organization abortion case, the Court overturned decades of settled precedent. In its stated concern to protect unborn life, the Court found that the right of a woman to decide whether to continue a pregnancy is not to be found in the Constitution. Only a law at the federal level, very unlikely under the current Congress constellation, could provide such a right. The judgment allows individual state laws to restrict this right. As a result, female human capital will move to states where the pregnancy health care provisions will not be infringed. The decision will create a potent gender imbalance impacting society and diversity-focused corporations. It will force more innocent children into abject poverty, with already more than 400,000 youngsters in foster care.

Barely, a week later, the reverse logic was applied by the Court in the NYSPRA versus Bruen case. In a nation that has lost control over gun authorization, and which has experienced 314 mass shootings so far this year, including in the Brooklyn subway and more recently, a Fourth of July parade, in Illinois, the Supreme Court took away the right of the States to control the carrying of guns outside the home. The case involved a New York law that has been successfully in effect for more than a century. In finding the New York’s law unconstitutional under the Second Amendment, the Court endangers the lives of those who are alive now (while invoking the protection of the unborn in its abortion decision). The Court ignores the gun violence decimating innocent lives across the country. Such sophistic interpretation of the Second Amendment does not accord with the resounding words of the Declaration of Independence. The Court’s hyper-originalist approach is reprehensibly flawed given the technological development of automatic guns and devoid of the common sense that a majority of American people, per recent polls, possess. It destroys quality of life by substituting restraint governed under rule of law with the rule of the most insane equipped with the most sophisticated automatic magazine. In the environment created by the Court’s decision, innovation, entrepreneurial risk appetite, and secure legal and stable societal frameworks will vanish quicker than they emerged.

Regarding the Supreme Court’s decision in the West Virginia versus the Environmental Protection Agency (EPA), an independent executive agency, the Supreme Court invoked, for the first time, the infamous “major question” doctrine. On the back of the latter, the Supreme Court, probably intentionally, defined in very broad terms that the regulatory agency must have clear statutory authorization from Congress to take regulatory action and not rely on its general agency authority. Again, the notion of protection of unborn life (referred to under the abortion rights opinion) is fully jettisoned to leave young life fully unprotected, as children and their next generations, will suffer most from poor air quality, higher temperatures, and a more polluted environment.

The pursuit of happiness, threatened by a current record of 421 parts per million (ppm) CO2 in the atmosphere, by Salt Lake City Lake and the Colorado reservoir in full crisis mortgaging future water supply, and “wet bulb” temperature phenomena, a literally lethal condition of 95 degrees Fahrenheit at 100% humidity, ensuing fatalities at US doorsteps, was critically threatened by the Supreme Court judges. Unequivocal evidence, procured by more than 11,000 scientists, who issued dire warnings and urgent recommendations to decarbonize the economy didn’t even cause the Court to include safe harbor language, in favor of the EPA, in its decision.

In the face of a truly overheated planet, the Supreme Court forewent the opportunity to deliver a Solomon-like decision, combining concern for citizens’ lives with adapted regulatory authority guidance. The Court could have allowed sunset provisions to the current regulatory authority until clear legislative guidance was provided by Congress.

Let’s assume that there is a benefit, in this sustained pursuit of human life protection and happiness, to remove regulatory authority from unelected government officials to the voice and vote of the people, the duly elected members of Congress.

Enter the 2010 Citizens United v. Federal Elec­tion Commis­sion supreme court decision. This contro­ver­sial decision did away with century-long campaign finance limitations and offered corpor­a­tions and special interest groups to inject unlim­ited funds into elec­tions. As a result, the vote of the people has been largely relegated to the vote of the corporation with the deepest pockets. This provision allowed West Virginia Senator Joe Manchin, amply supported by the coal industry, to hold the Democratic Party hostage over its climate campaign ambitions. One person blocked the will of the people, duly expressed per the 2020 popular vote results. The liberty of the individual person has been sold out to the mercantile interest of big corporations.

And further erosion of people’s rights to make their voices heard in a democratic election may be in the offing through a fourth Supreme Court decision. As Robert Barnes of the Washington Post wrote in a recent article:

“The Supreme Court on Thursday said it will consider what would be a radical change in the way federal elections are conducted, giving state legislatures sole authority to set the rules for contests even if their actions violated state constitutions and resulted in extreme partisan gerrymandering for congressional seats.”

This provision would allow state electors to recommend the next presidential candidate over and above the outcome of the popular vote in that state.

In the imminently scheduled Moore v Harper case, the core issue for debate is the “Independent State Legislature Doctrine.” The potential Court’s opinion would do nothing less than offer state legislatures the ability to simply hand elections to the candidate of their choice. Per NPR, “The Independent State Legislature theory was first invoked by three conservative U.S. Supreme Court justices in the celebrated Bush v. Gore case that handed the 2000 election victory to George W. Bush.”

The current Supreme Court has sufficient experience on the matter at hand. One of the 2000 Supreme Court justices was Clarence Thomas, now the most senior member, who cited the doctrine to support the selection of a Republican slate of presidential electors. Members Brett Kavanaugh, as part of the legal team of Bush Jr. and Amy Barrett, as a member of legal firm Baker Botts, both worked on the Bush vs. Gore case, whereby the Supreme Court in December 2000 eventually decided to halt the presidential elections’ recount in the state of Florida. In 2000, current Supreme Court member John Roberts advised Florida Governor Jeb Bush, brother of George W. Bush, concerning the Governor’s actions in the Florida election recount during the presidential election.

Such a court decision would dismantle the separation of the three branches of power. The judicial branch would simply promulgate, to the smallest footnote, constitutional language drafted by a prospective legislative branch, itself fully guided by the largest funding base of the GOP, the Republican party, and its next presidential candidate.

The 2024 presidential elections could potentially be decided by as few as 100 state electors, irrespective of the outcome of the popular vote in each state.

The Supreme Court seems to be at full throttle to obliterate essential liberties and the pursuit of happiness, be it in the form of women’s ability to opt for individual health choices, citizens’ freedom from fear of random gun violence, a planet protected for future generations and an individual vote that is not suppressed but can express the will of the people.

America in 2022 is experiencing its 1930’s Weimar moment. The republic offers embedded protection of rights, life and pursuit of happiness, primordial conditions for economic and societal wellbeing. These apply by extension to the Making America Great Again ambition.

With the credibility of the Supreme Court in tatters, that same republic is foundering in front of our eyes, and everyone is watching in silence.