A Major Question for a Smoky Independence Day
What exactly does the Supreme Court recommend we do about the most dangerous crisis our species has ever faced?
The original 13 states have been largely blanketed in smoke this holiday weekend—the ongoing Canadian fires, which we now learn may burn till the snow falls in October, are changing the very quality of summer sunlight to something grayed-out and menacing. But it’s nothing compared to the smokescreen coming from D.C.
The big Supreme Court decisions of recent days—allowing commercial bigotry, ending affirmative action, and preventing the White House from expunging student debt—are venal and mean. But they are also something else: an effort to make sure that the more functional politics of an earlier era can’t interfere with the bought-and-paid-for nihilism of the present.
I wrote about a lovely time machine a few days ago—the lithium-iron battery that lets you store the afternoon’s sun to provide light and heat for the night to come. But the gang of six justices now recasting our nation’s politics have invented a time machine of their own, one that lets you go back in history and erase goodness.
There’s something uniquely painful about surrendering ground you thought you had gained.
The theory that undergirded the student debt decision is the same one the Court used to gut the Clean Air Act last summer—something they’ve ginned up out of thin air called the Major Questions Doctrine. It holds that if the government wants to do something important, Congress has to spell out every detail: It’s not enough that Congress gave a mandate to protect clean air, it has to specify precisely what pollutants in what amounts. In the case of student debt, the Congress, reacting to 9/11, allowed the secretary of education to henceforth alter student debt payments in times of emergency, an authority the Biden White House seized on, quite sensibly, during the pandemic. The timing of those Congressional actions is important.
The Clean Air Act was adopted in 1971, back when we actually had a fairly effective Congress—among other things, it also passed the Clean Water Act (itself gutted earlier this term) and the Endangered Species Act, and set up the Environmental Protection Agency; these represented the powerful organizing of environmentalists, which shifted the zeitgeist so dramatically that bipartisan majorities fell in behind them; they’ve been weakened some since but never scrapped, because the public (unlike the billionaire class) essentially supports them. As for student loans, our politics had begun to break down by 2001, but at least an emergency like 9/11 could summon up some of the old spirit.
Now, after the Koch Brothers and Rupert Murdoch and Donald Trump have all but broken the back of our democracy, the Supreme Court justices have taken time out from their Alaskan fishing trips to go back and try to eradicate those better moments in our history. As Elana Kagan pointed out in her dissent on the student loans case, it’s nothing more than an exercise of raw power:
“From the first page to the last, today’s opinion departs from the demands of judicial restraint. At the behest of a party that has suffered no injury, the majority decides a contested public policy issue properly belonging to the politically accountable branches and the people they represent.
“That is a major problem not just for governance, but for democracy too. Congress is of course a democratic institution; it responds, even if imperfectly, to the preferences of American voters. And agency officials, though not themselves elected, serve a President with the broadest of all political constituencies. But this Court? It is, by design, as detached as possible from the body politic. That is why the Court is supposed to stick to its business—to decide only cases and controversies, and to stay away from making this Nation’s policy about subjects like student-loan relief.
“The court exercises authority it does not have. It violates the Constitution.”
The anti-gay bigotry and affirmative action cases did not depend on the Major Questions doctrine, but they were decided in the same spirit of erasing history. After many years of spirited organizing, for instance, Colorado’s legislature in 2008 added “sexual orientation” to the list of things businesses couldn’t discriminate against. Now the court has ruled, in essence, that they were wrong—that if you can claim your religion is sufficiently hateful, it gives you an out and you can go back to being a bigot.
There’s something uniquely painful about surrendering ground you thought you had gained. So here’s my Major Question this smoky Independence Day:
What exactly does the Supreme Court recommend we do about the most dangerous crisis our species has ever faced? And I don’t mean the grave danger of gay people needing a wedding website.
Or here’s how Martin Luther King put his Major Question, in Montgomery in 1965 at the end of the eight-day march from Selma:
I know you are asking today, ‘How long will it take?’ Somebody's asking, ‘How long will prejudice blind the visions of men?’
The Supreme Court’s answers are: We will do nothing about our problems, and it will take forever.
The judicial slaughter of our better angels is an affront to everyone who did all that work to pass these laws decades ago. I know many of those people through my work at Third Act, and it is of course painful to us. But we also know that we have the ability to organize again—that having won these battles once it may still be within our power to do so again. The irreplaceable Rebecca Solnit, writing yesterday in The Guardian, puts it well:
Memory is a superpower, because memory of how these situations changed is a memory of our victories and our power. Each of these victories happened both through the specifics of campaigns to change legislation but also through changing the public imagination. The supreme court can dismantle the legislation but they cannot touch the beliefs and values. We still believe in these rights.
I confess that there are moments when my faith slips; it should not be this hard. And I do not know if the spirit of cynicism and nihilism embraced by everyone from Donald Trump to RFK Jr. won’t triumph this time. But many of us will keep writing and working and organizing, and we will do it in the belief that most people are mostly good and that over time that goodness will tell—the belief that even the Federalist Society can’t indefinitely hold down the human spirit. Here’s a great essay from one of my colleagues about figuring out they were non-binary in their 60s, and here’s the other piece of reporting that’s kept me going this weekend: an account of the current Miss Texas Averie Bishop at the end of her year-long reign.
The perch has normally been occupied by apolitical women, but in Bishop’s case, the pageant queen has used it to push back against the far-right policies supported by Texas’s White male leaders.
Her platform—diversity and inclusion—represents much of what Texas has been outlawing. In June alone, Gov. Greg Abbott (R) signed laws banning diversity offices and training at state universities, “sexually explicit” books at public schools, drag shows and gender-affirming care for youths.
During some high school visits, Bishop asked students to raise their hands and share communities they identifiedwith. She said students often mentioned the LGBTQ community.
“They’re going to see a completely different Texas in the next decade compared to the one that we have now,” Bishop said.
Let us hope that she is right, and let us make it so.
