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The Supreme Court and the Death of Progress

(Photo: Mark Fischer; Edited: JR / TO)

Ten years from now we will all look back at this upcoming election and we’ll realize that it was here that the Progressive wave of reform that surged forward at the turn of the 20th Century – and made life better for billions of people in this nation over the last 100 years – finally broke and receded backward into the abyss.

We’ll realize it was here when the original corporatists like the DuPonts and the Morgans, and today’s corporatists like the Kochs, finally won their ruthless, century-old struggle against progressivism, against equal economic opportunity for all, and against equal civil rights for all.

We’ll reside in a nation where the old are no longer cared for with Social Security and Medicare. Where the impoverished young are no longer cared for with Medicaid and food assistance. Where women will again be forced into back-alleys for coat hanger abortions. Where minorities will again be relegated to second-class citizens. Where working people will again fall into indentured servitude without protections like a minimum wage and collective bargaining. Where our democratic institutions are so hollowed out by corporate money that they are completely unresponsive to “we the people.”

And we’ll reside in this neo-feudal state run by 21st Century Robber Barons all because we let Mitt Romney win the White House in 2012 and we let him hand-pick a new crop of Conservative corporatist Supreme Court justices to reign over the United States for at least the next generation.

Since 1803 when Marbury v. Madison gave rise to judicial review, the Supreme Court, which was intended to be the third of three co-equal branches of government, has risen to be the ultimate authority in our government. Today, we have nine unelected kings and queens able to create completely new laws or strike down old laws passed in Congress by “we the people” and signed by a President elected by “we the people.” Like the Oracles of Delphi, the Supreme Court has been the final arbiter time and time again over which direction this nation moves in.

And today, with the Conservative movement more emboldened than ever to undo the New Deal, redefine the general welfare clause in our Constitution, and reverse social policy back a half-century, in the coming years it may again be the High Court that will give the final say in this ideological struggle.

And the ideology that controls the court will win this struggle.

On the Left, Justice Ruth Bader Ginsburg is 79-years-old and Justice Steven Breyer is 74-years-old. And on the Right, Justice Antonin Scalia is 76-years-old and so is Justice Anthony Kennedy. One, two, maybe all four of these justices will be retiring during the next Presidential Administration and it will be up either to Barack Obama or Mitt Romney to pick their successors.

If the President is re-elected, we’ll get more justices like Elena Kagan and Sonia Sotomayor who still believe that progressive reforms like Social Security and Medicare are constitutional. They still believe that child labor laws and the minimum wage are constitutional. They still believe in a woman’s right to choose.

If Mitt Romney is re-elected, we’ll get justices like Clarence Thomas and Antonin Scalia who both believe all those progressive reforms just mentioned are unconstitutional and should be overturned immediately. Worse, we’ll get justices recommended by Robert Bork.

Bork was Reagan’s nominee to the Supreme Court in 1987, but he was rejected by the Senate because of his radical beliefs. Today, Bork is Mitt Romney’s constitutional adviser.

Back in 1987, at the time of Bork’s nomination, the late Senator Ted Kennedy took to the floor of the Senate to talk about Bork’s grim vision of America:

Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is—and is often the only—protector of the individual rights that are the heart of our democracy …No justice would be better than this injustice.

Robert Bork and his ilk, from which Mitt Romney will handpick his Supreme Court nominee, have a radically different vision of America than the Progressives who built the middle class in the 20th century and expanded equal rights to hundreds of millions of our fellow citizens.

Progressivism, which brought us new rights like the right to protection from poverty in old age, protection from sickness, protection from the ravages of involuntary unemployment, protection from hunger, protection from discrimination, you name it, hangs by a thread. And its fate will be determined this election.

While most of the focus in the media has been on whether or not the plutocrats will pay their fair share in taxes, whether Obamacare will be upheld, or whether women will have access to contraceptives, the highest stakes are on the Supreme Court, and which ideology will hold sway for the next few decades in that most powerful branch of our government.

With just days to go until this election, you can vote for whoever you want. But you must consider the consequences of a Mitt Romney presidency. Noam Chomsky understands those consequences and suggested that those who vote in a swing-state must vote in self-defense against Mitt Romney, which means voting for Barack Obama. He’s right. We must be voting against those who wish to close the book on progress.

Drone wars, indefinite detention, the growing surveillance state, the war on whistleblowers – they’re all grotesque policies that started with Bush and since have been championed by this administration. But these policies will, sadly, not be overturned at the ballot box. They’ll be overturned by movements in the streets – and progressives must begin building those movements right now.

But the fate of over a hundred years of progress will be decided at the ballot box during this election, because the Supreme Court is hanging in the balance.

Progressives ignore this reality at our own peril.

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