Mass Dissent – The “Reagan Court” Goes Rogue – Op-ed (7/18/2022)

The “Reagan Court” Goes Rogue

            How did we arrive at the historical inflection point where our society is being remade, brick by brick, by a cadre of Supreme Court judges intent on returning us to a time before womens’ rights, before civil rights, indeed before separation of church and state? Where women are viewed as mere reproductive vessels; where the real victims of discrimination are white males; where unlimited corporate contributions, gerrymandering, and voter suppression cement in a government of the few, by the few, and for the few. How did we end up with a Supreme Court whose response to women objecting to forced birth is “just do the nine” and, as Justice Amy Coney Barrett advised at oral argument on the Dobbs case, if you’re not ready for motherhood simply leave the newborn in a baby box at the local fire station.

            The story starts with Ronald Reagan, who launched his campaign in 1980 with a state’s rights speech near the scene of the killing of the three civil rights workers in Philadelphia, Mississippi in 1964—a dog whisper to white supremacists (the Ku Klux Klan endorsed him). His Justice Department launched the careers of John Roberts and Samuel Alito (both tasked with bringing down the Voting Rights Act and ending affirmative action). His Equal Employment Opportunity Commission was headed by Clarence Thomas (as social satirist Mort Sahl said, Thomas walked through the door of affirmative action and then closed it loudly behind him). Reagan put Antonin Scalia on the Court, who invented an individual right to bear arms that simply white-outs half the Second Amendment—the part that says its all about militias, not eighteen-year-olds arming themselves with military combat weapons.

            But the story is also the failure of the Democratic Party to stop the disassembly of our modern state. Speaker of the House Tip O’Neill famously adopted the strategy “Let Reagan be Reagan,” and he did. Bill Clinton “ended welfare as we know it” and declared “the era of big government” (i.e., a government that serves the people) over. O’Neill’s successor Nancy Pelosi adamantly refused to impeach George W. Bush over his waging an illegal and immoral war in Iraq and establishing a grotesque torture regime, and then dragged her feet again with the belated impeachments of Donald Trump. And of course Barack Obama gifted the Supreme and lower federal courts to the Federalist Society (could you imagine the Repubs sitting still if the Dems appointed judges from a list prepared by the National Lawyers Guild or the Civil Liberties Union?).

            In Tom Stoppard’s masterful reconception of Hamlet, bit players Rosencrantz and Guildenstern find themselves sailing off to their own executions after a long series of plot twists. Only when they had passed the point of no return do they see they could have stopped the path to their demise: “There must have been a moment, at the beginning, where we could have said — no. But somehow we missed it.”

What if we had paid more attention to the careers and ideologies and misdeeds of appointees to the Court? We would have discovered, for example, that Sam Alito was a proud member of the Concerned Alumni of Princeton, a group dedicated to keeping female students off campus. That Clarence Thomas reportedly was a regular borrower of pornographic films at his local video store, and that other women prepared to describe similar sexual harassment as that experienced by Anita Hill were not permitted to testify before Chairman Joe Biden’s Judiciary Committee. That Amy Coney Barrett’s charismatic sect People of Praise engages in an exuberant form of worship that includes speaking in tongues.

What if we had said, at the beginning, NO!

Written by – Professor Mark Brodin