Nothing Says The Courts are Corrupt Like Passing Laws that are Clearly Unconstitutional
There was a time when states didn't bother - why has it changed?
There are many laws being considered and passed in statehouses around the US these days that make many of us sit up and ask “Wait, how is that Constitutional?”. Montana’s TikTok ban, Florida’s opt-out for providing medical care and requirement that private insurance companies not cover gender affirming care for anyone, the abolishment of DEI programs at public universities, Texas' requiring the Ten Commandments be displayed in public school classrooms, the banning of books in public libraries, etc.
I could go on, but I think we get the point. I’m not a lawyer but I think it’s fairly clear that banning certain types of speech and commerce has not passed constitutional muster until very recently.
These have been complaints from religious culture warriors in the past but had no serious political backing because any clear reading of the 1st Amendment plus an understanding of previous court rulings made it clear that there was no point in trying to pass laws that would just get shot down in court.
With the overturning of Roe v. Wade and other recent rulings handed down by the Supreme Court and other Federal Courts though, it’s maybe not as obvious that this will continue.
Thus, many state lawmakers are now in a kind of “why not?” phase. They get to go back to their base and talk about the laws they passed to protect all of us from the ravages of the “woke” agenda and either the new-styled courts go along with it and ignore decades of previous rulings, which they have increasingly shown a willingness to do, or they block it and the politicians will then run for re-election on fighting against those “woke” judges.
(see also “Activist Judges”- which used to be how right-wing politicians referred to judges who didn’t go along with their agenda. They were considered activists because they tried to apply current knowledge instead of only the original text of the Constitution but I suppose when your side wants to ignore the original text of the 1st Amendment you have to move those goalposts just a little bit…)
In essence the Republican lawmakers have created a no-lose situation. After a few years of bending all the rules to appoint as many Conservative judges as possible, regardless of qualifications, the laws that seem so very unconstitutional to most of us who’ve been around awhile have an actual chance of being upheld. Even if they get overruled by a judge or court they haven’t turned into puppets, they get to blame that judge and potentially rile up a mob against them.
It’s a classic Mafia take - nice little judgeship you’ve got here, be a shame if something bad happened to it, like a mob uprising.
Speaking of original Constitutional language, these are not the checks and balances the Founders had in mind when designing our Republic. Allowing state legislatures to illegally gerrymander district maps in order to create supermajorities that can pass any law they want should be a cause for concern. The courts should act as a check on that level of power but increasingly we find that they act more like a rubber stamp than a check.
Want to get a drug banned that has been available for decades? Just find the right district court to grant you that ruling. Tired of having to follow EPA or OSHA rules? Get the Supreme court to overturn the Chevron Doctrine, which says that, when in doubt, the agency with the experts gets to set the rules for things like clean air and water instead of having Congress decide every single rule. (That hasn’t happened yet, but there’s a really good chance that is coming this year.) Can’t find enough workers willing to take your crappy, dangerous, and underpaid jobs? Change child labor laws. Tired of having to hear other people’s religious views, or feelings about LGBTQ issues? Ban them from speaking about it.
That’s not the way any of this is supposed to work. The US Bill of Rights and the checks and balances built into the system are there to protect minorities from the majority mob. Without them we could easily pass laws that violate the human rights of any group or individual. The system protects us from that and allows us to be better than that. At least it tried to and sometimes it even succeeded. What Republicans have done is turned that entire system on it’s head and created a system where they don’t even need a majority to pass laws thanks to manipulating the maps and voter access, that is unimpeachable by a court system that they’ve also corrupted.
You might like that. You might like that they are fighting against woke indoctrination. I’d disagree with you, but even if you feel that way I want you to think about an important question. What happens when they come after something you love? When your state votes to disallow you or your kids from speaking, takes away your ability to vote or shuts down your business because of some perceived violation of their morals? Who’s going to protect your rights? What court are you going to appeal to?
This doesn’t change without a massive overhaul. I’m not usually one to call for fealty to one party, but it becomes more and more clear that the only way out of this mess is for MAGA and Christian Nationalist Republicans to lose elections at a massive scale. I’m talking everything from President all the way down to County Commissioners, Sheriffs, Municipal Court judges, etc. All of it needs to be eradicated to fix what is happening. There is no arguing with them, there is no testimony that will sway legislators, there is only testimony that will move the public to vote them out, everywhere.
And then, we have to keep the newly elected pols in check and develop better alternatives for when they ultimately disappoint us too. Because they will. Democrats are no angels, there are plenty of faults there too. Republicans have, however, left us no other choice. They’ve corrupted everything and it will continue to get worse until we put a stop to it.