Make no mistake: This is a blood-red alert. Democracy in the United States — tattered and shabby though it may be — could have less than two years to live. Not 10 years, not some indeterminate fuzzy maybe slice of time. Two years, one final free midterm election in the middle, before the Supreme Court finishes the wrecker’s work it began in this last term.
There has been a good deal of talk lately about the rising potential of a new civil war. If it comes, historians will likely look back at the rise and subsequent roar of this Supreme Court’s hard-right supermajority as the spark that lit the fire this time around.
In one fell swoop, and with palpable disdain for the clear will of the people, the high court spent this last session dumping guns into an already hyper-violent society; made it virtually impossible for regulatory agencies like the Environmental Protection Agency to implement policy, thus throwing the deregulated doors wide open to polluters; tore a gaping hole in the separation between church and state; and defenestrated the fundamental right to abortion care.
Having revealed itself, the court may extend its rampage to Griswold, a case ostensibly about birth control that is actually the cradle for privacy rights in the U.S. The court is also expected to take up Obergefell, potentially laying siege to LGBTQ marriage rights. Justice Clarence Thomas, the suddenly vocal avatar of this revanchist majority, also reportedly has his eye on Sullivan, the case that protects free press rights.
This is truly a ball of nightmares, and of course, the times being what they are, there are more horrors to come. In fact, there’s a case on the court’s upcoming docket that — if decided in the same spirit as the others from this term — will turn out the lights on American democracy and cement the absolute control of an implacably radical Republican minority.
On the last day of this blessedly finished term, the court announced it would be taking up the matter of Moore v. Harper. “At issue,” explains The Washington Post editorial board, “is a North Carolina Supreme Court case holding that the state’s constitution precludes severe partisan gerrymanders; the argument the petitioners make is that state courts shouldn’t have any role in overruling federal election rules put into place by state legislatures.”
They call it the “independent state legislature theory,” a concept most legal scholars find preposterous, so naturally the Supreme Court’s conservative majority wants to give it a long, hard look. The case came to pass after the North Carolina supreme court rejected the heavily gerrymandered legislative maps crafted by the Republican congressional majority of that state. Should the petitioners win the high court’s approval in Moore, the fallout will be nothing short of catastrophic.
If the petitioners win, Article II Section 1 of the Constitution will be rendered null and void, and state legislatures will theoretically be able to decide the winner in their state’s elections, with no recourse from the courts at any level. At present, 30 states have legislatures controlled by the Republican Party, the party still belongs to Donald Trump, and his fictions regarding stolen elections remain the high-octane fuel powering the GOP base.
Such a decision would not arrive in time to affect the 2022 midterm election, but it paints a bright red bullseye on the presidential election of 2024… which, by the way, Trump is reportedly preparing to announce his candidacy for.
“Trump and Republicans are preparing to return to the Supreme Court,” warns conservative Judge J. Michael Luttig, “where this time they will likely win the independent state legislature doctrine, now that Amy Coney Barrett is on the Court and ready to vote. Barrett has not addressed the issue, but this turns on an originalist interpretation of the Constitution, and Barrett is firmly aligned on that method of constitutional interpretation with Thomas, Alito, and Gorsuch, all three of whom have written that they believe the doctrine is correct.”
None of this is happening in a vacuum. A segment of the population that believes democracy is an impediment to the ultimate dominion of a vengeful Christian God has been laboring toward this end for years. Katherine Stewart explains for The New York Times:
The Supreme Court’s decision to rescind the reproductive rights that American women have enjoyed over the past half-century will not lead America’s homegrown religious authoritarians to retire from the culture wars and enjoy a sweet moment of triumph. On the contrary, movement leaders are already preparing for a new and more brutal phase of their assault on individual rights and democratic self-governance. Breaking American democracy isn’t an unintended side effect of Christian nationalism. It is the point of the project….
It is not a stretch to link this rise in verbal aggression to the disinformation campaign to indoctrinate the Christian nationalist base in the lie that the 2020 election was stolen, along with what we’re learning from the Jan. 6 hearings. The movement is preparing “patriots” for the continuation of the assault on democracy in 2022 and 2024….
The hunger for dominion that appears to motivate the leadership of the movement is the essential context for making sense of its strategy and intentions in the post-Roe world. The end of abortion rights is the beginning of a new and much more personal attack on individual rights.
A favorable decision in Moore is the lynchpin for the entire program. Rather than pick off our rights one case at a time, as has been the process this term, laying waste to the notion of free and fair elections opens the door for a tyrannical minority to wipe the whole slate. Like Sauron with his ring of power, this is the one case to rule them all, and it is coming. If you have been awake this year, you know not to assume a favorable outcome.