A Tea Party, Moral Majority, Sagebrush Rebellion Supreme Court?

With the retirement of senior Associate Supreme Court Justice Anthony Kennedy, the chance of the United States finding itself at the mercy of the dark side of its collective psyche is terrifyingly real. With a second Trump appointee on the bench, a Tea Party-Moral Majority-Sagebrush Rebellion Supreme Court could pile up xenophobic, misogynistic and homophobic rulings that would socially disenfranchise and financially cripple tens of millions of Americans.

With such a court, dissent could become a political crime in America again. We could find our civil liberties suspended under new forms of sedition acts in times of real and fabricated crises. Women’s rights, voting rights, anti-discrimination laws of all kinds — in other words the full spectrum of civil liberties gained since WWII — might be erased. We could see the reappearance of sodomy laws. Draconian anti-abortion laws could emerge, all with a 5-4 approval by the Supreme Court. And we could be forced to watch public lands auctioned off to corporations or “returned” to the states with opponents not granted “legal standing” to be heard by the Court. Water conflicts between states in the Southwest could be decided on the grounds of political correctness and Trumpian allegiance rather than by even-handed interpretations of compacts and other agreements, again without intervention from the Court. Red states could get water, and blue states could be left to wither. And anti-immigration legislation and increased deportations might set up the Department of Homeland Security as an American SS turning on dissident citizens, without Court intervention.

Or is it possible that the outrage over kidnapping, orphaning and incarcerating migrant children and their families in cages and tent-filled U.S. gulags, combined with a visceral loathing of racial hate speech on the part of the president and his advisors, finally stir the conscience of the country? Could an uprising of righteous compassion be energized even further by the thought of a far-right Supreme Court that could effectively suspend the Bill of Rights? Could a renewed passion for social and environmental justice in America cause such a whirlwind of reaction that the midterm elections might turn into a progressive landslide of historic proportions, having motivated even the most intransigently cynical and jaded to get to the polls? One can only hope.

A far-right Supreme Court could refuse to oppose turning Jim Crow into a national phenomenon, demonizing and subjugating homosexuals, African Americans, Jewish people, pregnant women, indigenous Hispanics, Native Americans, Latino immigrants and political opponents of all kinds and stripes, including environmentalists and public health activists who struggle against the corporate poisoning of air and water. Under pressure from the hysteria of corporate propaganda, talk of climate change and renewable energy could become a jail-time offense, with little or no opposition from an anti-First Amendment Supreme Court.

It’s certainly not beyond the realm of possibility that after another razor close but rigged Republican victory in the 2020 elections, a conservative Supreme Court could look the other way while American citizens are subjected to nascent versions of the repressive practices that we have visited upon Latin America with our support of juntas and generals and right-wing dictators. We might even see dissent media attacked as it’s been in Turkey and President Trump assume “sweeping new powers” with the Court’s approval, as President Erdogan has.

Once limits to power have been breached, either with violence, or a semi-legalistic court system backing a specific regime, then the flood gates opening to surreal repressions and victimizations is more probable than not. It’s also true that what a country’s power structure has done in the past, it can do again, both for better and for ill.

Let’s take just two examples of the staggering repressive madness with which paranoid conservatives with the sociopathology of their values have burdened Americans in the past — the wickedness of the House Un-American Activities Committee (HUAC), McCarthyism and the destruction of free speech with the calamity of Sedition Acts in World War I.

It’s impossible to calculate exactly how many Americas were terrorized and impoverished by anti-communist (read anti-left) hysteria in the 1940s, ’50s and ’60s. It’s thought to be between 10,000 and 20,000 writers, actors, producers, directors, public school teachers, college professors who refused to sign loyalty oaths, steel workers, longshoremen and anyone else who refused to cooperate with HUAC, J. Edgar Hoover’s FBI and the Senate hearings of Joe McCarthy. Most victims were punished financially by losing their jobs, two were executed — Ethel and Julius Rosenberg — some were jailed as political prisoners and some committed suicide or were forced to emigrate to find work. Whole families were left destitute and traumatized simply because their political beliefs were considered unpatriotic — not for any violent acts, or incitements to violence, not for acts of “terrorism,” or anything remotely like advocating a coup. They were victimized because of their economic and social philosophies, and many more were blacklisted and greylisted, becoming unemployable because of their associations with liberal thinkers and causes. The effect of McCarthyism wasn’t only to terrorize left-leaning thinkers. It also inhibited political dissent of any kind in America for a decade or more.

This suffering could have been curtailed or minimized by a left-of-center Supreme Court, but the Justices in those days did nothing to intervene

in the McCarthy witch hunts.

The Sedition Act of 1918 was even worse and sets a precedent in American history for the vilest kind of censorship and suppression of thought. Passed near the end of WWI and repealed in 1920, the Sedition Act made it illegal to use “disloyal, profane, scurrilous, or abusive language” opposing actions by the government “when the United States was in a war.” The Act resulted in more than fifteen hundred prosecutions and more than a thousand convictions that resulted in jail time. Socialist Eugene V. Debs was arrested for opposing conscription. He was sentenced to 10 years in prison for his political opinions. Needless to say, the Sedition Act was in blatant defiance of the First Amendment, yet the Supreme Court of the day did nothing to oppose it or intervene on behalf of those abused by it.

U.S. Attorney General at the time, A. Mitchell Palmer, even proposed a peacetime sedition act citing “unrest” and political agitation in African American communities. Palmer’s name is associated with the infamous “Palmer Raids” of 1919 and 1920, when Palmer’s Department of Justice conducted raids across the country to arrest suspected radicals like “Wild Irishmen” who were opposing British colonialism, liberals of German dissent, anarchists and even Quakers. Palmer’s raiders terrorized and rounded up more than 3,500 people and deported 500 of them. He was abetted by President Woodrow Wilson, who earlier had helped incite racial and political hysteria by saying that so-called hyphenated Americans had “poured the poison of disloyalty into the very arteries of our national life.”

Did the Supreme Court intervene to stop the Palmer Raids? No. But a Massachusetts District Court Judge, George Anderson, did, demanding the release of detainees. In his decision he said, “a mob is a mob, whether made up of Government officials acting under instructions from the Department of Justice, or of criminals and loafers and the vicious classes.”

We may have to rely on the almost miraculous appearance of such outspoken public servants once again.

*Nullius in verba: take nobody’s word for it