The Supreme Court Has a Long History of Bullshit, Actually
The Constitution is not some perfect, sacrosanct document that should be revered without question.
Somehow, remarkably, that sentence alone would get me called a heretic in some more patriotic circles.
Did you know that the United States has the oldest Constitution in the world? While other countries have modernized their constitutions to account for modern life, we have a seldom-used process of amending the existing dusty old parchment when we need to. Otherwise, we have the Supreme Court, an astoundingly powerful body whose job is to read the Constitution and interpret its meaning to somehow apply to the modern world.
Y’all, the Constitution is so fucking old. When it was written, we didn’t even have the railroad and today our flag is sitting on the goddamn moon.
Since modern life has accelerated by orders of magnitude since the Constitution’s writing, we’re often left with these 9 Supreme Court justices arguing over the placement of commas and whether or not “shall” means “must,” and other hemming and hawing over pedantic minutia, all for the sake of wringing some wisdom from this fossil that might answer our modern questions.
And the Supreme Court is not perfect in its interpretations. They’ve never been perfect. Only a handful of men wrote our Constitution. Most of them owned like 3 pairs of underwear over the course of their entire lives. And only a handful of people have ever held a seat on the Supreme Court (hello, lifetime appointments that don’t exist anywhere else in government!).
Until we accept that these institutions are actually flawed and need to evolve, we’ll simply continue to allow a very small handful of people to have the unilateral power to block society’s progress forward simply so they can cross the t’s and dot the i’s of the Constitution as they see fit.
That’s a bad thing because, historically, the Supreme Court has had this pesky little tendency to overlook the basic humanity of minorities and women.
Women: Citizens, But Not, Like “Citizens” Citizens 😉
In the 1875 case Minor v. Happersett, the Supreme Court (then comprised EXCLUSIVELY of dusty old white men, of course) issued a ruling that denied women the right to vote, finding that when the Constitution says all “citizens” have the right to vote, it doesn’t explicitly say that the states aren’t allowed to limit voting rights to only male citizens if they choose.
Put another way: THESE OLD-ASS, CIVIL-WAR-ERA-ASS, DISGUSTING-MUTTON-CHOPS-HAVING-ASS MEN READ THE CONSTITUTION, CAME UP WITH A LOOPHOLE OUT OF THIN AIR THAT ALLOWED FOR STATES TO DISCRIMINATE AGAINST WOMEN, AND SAID: “WELL, THE CONSTITUTION DOESN’T SAY WE CAN’T!” ¯\_(ツ)_/¯
You see how anyone can twist and contort the Constitution into whatever conclusion they’re seeking. How convenient is that?! Crazy how it worked out that way, that the ruling happened to maintain the power structure that directly benefitted the old white men who were tasked with making the decision. Coincidences are everywhere!
Honestly, Minor v. Happersett is a masterclass in bullshitting. It would almost be impressive if it hadn’t delayed women’s voting rights for 45 MORE FUCKING YEARS.
What changed in 45 years?
Society changed. Attitudes changed. More people became more sympathetic to the women’s suffrage movement and in 1920, the right to vote was won – not by any Supreme Court ruling, but by the brand new 19th amendment to the Constitution.
The amended Constitution corrected a problem, sure. But then again, the problem wouldn’t have existed in the first place if the Supreme Court had simply interpreted the Constitution in a way that recognized the humanity of women.
Instead, the Court looked for ways to continue America’s longstanding oppression of women, not because the Constitution said it was legal, but because it didn’t explicitly say it was illegal. It’s almost like oppressors will go to preposterous lengths to maintain their own supremacy!
The Route to Rights
When it comes to civil liberties, one would hope that the Supreme Court would have a bias toward expanding equal rights under the law for all, right? But as we’ve seen: LMAOOOOO.
One problem is that, as societal attitudes change, the Court must allow itself more elasticity in matters of civil rights than any conservatives or reactionaries would care to see. So instead, what often happens is this very dumb Route to Rights™.
Let’s walk through it, shall we?
You start with a magic piece of paper: the Constitution.
You have a dilemma that the magic piece of paper doesn’t have an explicit answer for. And why would it? It was written centuries ago and it’s not like they were going to list every right. Like, we all have the right to brush our teeth every day, but it’s not worth enshrining in the Constitution. How long do we want this document to be? So the dilemma turns into a court case that makes its way up to the highest court in the land.
You then have a group of 9 self-proclaimed law-understanders (the Supreme Court) that says, “We know what’s best for society, so we’ll let you know what WE think the magic piece of paper MEANT to say about what you can and can’t do. Don’t worry, we got you. 😉”
Then the 9 Supremes emerge from their law-understanding orgy and say, “Oops sorry, the magic paper says you don’t have any rights. 🥺 Bummer! Hate that for you! But who are we to question the magic paper? Bye, have a great summer. 😘”
Over time, society changes, attitudes shift, and the citizens of this country say, “Well, NOW we recognize we need to grant people these rights those 9 robed freaks denied them a long time ago. They said it wasn’t in the magic piece of paper, so… let’s just update the magic piece of paper! Boom, problem solved.”
It’s the legislative equivalent of asking your Mom for ice cream and her saying no, then asking your Dad for ice cream and him saying yes. Except the ice cream is civil rights and the time between asking your mom and dad is LITERALLY DECADES.
When it comes to civil liberties, why have this arduous, byzantine process in place to stall progress? Is it just so you can wait for broad societal attitudes to evolve (spoiler: they always do)? Meanwhile, you’re okay with denying Americans liberties in the interim while you wait to figure out whether or not they actually deserve them?
The issue of women’s right to vote was hardly the only universally agreed-upon mistake the Court has ever made.
In Dred Scott v. Sandford, the Court held that the Constitution was not meant to include American citizenship for people of African descent, regardless of whether they were enslaved or free, and so the rights and privileges that the Constitution confers upon American citizens could not apply to them. I think we can all agree this is vile horseshit, yes?
Decades later, as social attitudes shifted toward believing that Black people were citizens, Plessy v. Ferguson would find the Supreme Court rather conveniently interpreting the Constitution in such a way that allowed the doctrine of “separate but equal” treatment of people of different races. The result was catastrophic and led to generations of legalized oppression for Black Americans living in the Jim Crow South. Plessy v. Ferguson and Dred Scott are now universally agreed to be among the most damaging, and most shameful, in the Supreme Court’s history.
And the cultural ramifications of these rulings still poison the social fabric of America to this day. All because we conferred immense, unchecked power onto a handful of men who always erred on the side of oppression.
The Current Roster of Assholes Trying to Dismantle Liberty
The Supreme Court is not an elected body. They are nominated by Presidents, approved by Congress, and given lifetime appointments. That, in and of itself, should sound alarm bells. We all remember from civics class that the three branches of government (legislative, executive, and judicial) exist to give one another checks and balances. Well, who the fuck is checking and balancing lifetime appointments made by the executive branch? Is that not simply an extension of the executive branch wielding far more power than the office was intended?
Somehow public perception evolved to believe that since Supreme Court Justices are not elected, they are not inherently political people. Which is, of course, also horseshit. They, as individuals, will never be fully neutral or impartial. They don’t have perfectly calibrated moral compasses. They are human. They are flawed. They are wrong just as frequently as you and I.
Let’s look at some wildcards on the roster today.
Amy Coney Barrett was a judge for three (3) years before being placed on the Supreme Court. In case you forgot, she was rushed into a Supreme Court seat just weeks ahead of the 2020 election (totally fine, not corrupt at all, sure). It’s okay though, it’s only a lifetime appointment. She’s had less experience as a judge than I had working at Best Buy in college. Imagine me spending 3 years selling cameras and then suddenly being promoted to CEO of Best Buy. She’s a devout Catholic and likely the reason we are all fucked now.
Clarence Thomas is presently embroiled in enough scandals to unseat most people from their jobs, let alone the highest fucking court in the land. His wife is currently being investigated for committing treason related to an attempted coup of the American presidency. This resulted in Thomas casting a suspicious vote to block access to text messages with Trump’s allies that could incriminate her. I forget: are Supreme Court justices supposed to issue rulings that could undermine democracy simply to keep their spouses out of prison? 🤔
And then there’s Brett Kavanaugh. I wonder how unapologetic rapists typically vote on matters of women’s rights?
Can’t Stop, Won’t Stop (Looting Your Rights)
As Roe falls, Obergefell v. Hodges (the Supreme Court case that legalized same-sex marriage) could be next. That ruling was passed narrowly in a 5-4 decision and faced staunch opposition from conservatives who believed that the majority of Americans (in the REAL AMERICA!) didn’t actually approve of same-sex marriage and that the court was wrong in trying to translate social progress into law, and blah blah blah religious freedom blah blah blah gay wedding cakes blah blah blah, who gives a fuck, the whole argument is so fucking asinine I’m not even going to dignify it any further. If you have opinions on who other grown-ass adults marry, please die, and I mean that from the bottom of my heart.
In the year of the Obergefell ruling, polls consistently indicated that more than half of Americans supported legalizing same-sex marriage. And after Obergefell, that approval has steadily increased year after year, with a 2021 Gallup poll placing approval for same-sex marriage at 70%.
This, folks, is progress. The kind of progress that makes it easier for women to have won the right to vote 45 years after being initially denied by the Supreme Court.
And progress is a good thing! I consider myself a progressive, whatever that means nowadays. For the life of me, I can’t understand why we’d want to do anything else. Do people sincerely want society to regress? Why? If you don’t like the progress, simply don’t participate in it. Not all progress has to be for you. You don’t have to directly benefit from everything that happens.
Don’t like alcohol? Then don’t drink it. Don’t like abortion? Then don’t get one. Don’t like gay marriage? Then don’t get gay-married.
But regressives will never be satisfied with that answer. If they don’t like it, then no one may be allowed to have it. They’ll happily infringe on the rights of their fellow Americans because they don’t actually believe in what America claims to represent – freedom, liberty, democracy. They believe in maintaining their privilege and supremacy. Because their rights feel a little less special when others are also able to exercise their rights in a way that might earn their disapproval.
We can’t let a vocal minority impose their religious beliefs on the rest of us simply because they’re willing to play dirtier than the opposition.
The reversals of Roe and Obergefell could very well be the Dred Scott and Plessy v. Ferguson of the modern era, undoing decades of hard-fought and worthy progress, re-animating the oppression of bygone eras simply because we still cling to the belief that a group of 9 assholes in robes is somehow more capable of reading than anyone else.
Always remember that their pronouncements are not infallible. Expressing criticism of this system isn’t un-American – in fact, it’s necessary for a healthy democracy to thrive.
And we’re in very real danger of no longer living in a healthy democracy.
Hey Joe Biden, Do Something, You Dumb Bitch
So how do we solve this existential crisis about the integrity of the Supreme Court? One answer is simple, but it’s a tough pill for a lot of people to swallow because no one in America bothers to study history, but – expand the court. Pack it to the rafters, idgaf.
We haven’t always had 9 justices. That number has fluctuated over time, usually expanding when Presidents needed to get key legislation passed (HINT HINT, BIDEN).
The number of justices serving in the Supreme Court changed six times before 1869. Abraham Lincoln expanded the court to 10 justices to help ensure his anti-slavery measures had support. Congress would cut the number back to 7 after Lincoln’s death. And FDR tried – and ultimately failed – to expand the court to 15 justices to push legislation intended to help solve the whole Great Depression thing.
The point is: We’ve done this shit before. We can do this shit again. The tactic is not without precedent. It’s okay, I promise.
Just expand the court. What are we waiting for? What are we clinging to? Decorum? Tradition? History tells us that’s not even true.
Next, Biden could issue an executive order protecting the right to abortion, the right to same-sex marriage, and whatever other rights these ghouls set their sights on next.
“But the next President will just overturn it!” you say. Well, tell you what: let’s cross that bridge when we get there. This is emergency time. Plus, who knows – maybe if Biden grows a pair of big brass ones by issuing an EO for Roe, perhaps Democrats will actually have a chance in the midterms and in 2024.
Lastly, we could begin the process of seeking an Amendment to the Constitution. Just as with the suffragettes in 1875, if we can’t win in the courts, we can pursue other means. It is profoundly fucked up if we have to double back after enjoying five uninterrupted decades of bodily autonomy, but that’s where we are.
We have to do whatever it takes. Let Republicans clutch their pearls about how we do it. Let them cry about the mean protestors outside the homes of Supreme Court justices. They should never know a moment’s peace for as long as they’re depriving us of ours.
Pack the fucking court, Joe Biden, you spineless piece of shit.
Issue an Executive Order to enshrine our rights while your wispy little bitch ass is still in office, Joe Biden.
Do literally fucking anything at all, Joe Fucking Biden.
Editor’s Note: This article has been edited to clarify that the 15 Supreme Court justices were sought by FDR, but not won.