The Austin Chronicle

Point Austin: The Wages of Civility

The Supreme Court confirms that elections have consequences

By Michael King, June 29, 2018, News

No doubt if Democrats had only been nicer to Senate Majority Leader Mitch McConnell – more "civil" – he would have allowed, in deference to longtime Senate norms, a hearing and a vote on President Barack Obama's appointee to the Supreme Court, Merrick Garland. If civility had been duly honored, the court – fortified instead by GOP functionary Neil Gorsuch – would not this week be handing down one reactionary decision after another: on redistricting, on discrimination against Muslims, on public sector unions.

In the latest bulletins from Trumplandia, the national media is in an unholy dither over the news that some administration officials are being treated rudely in public by people upset with official extremism. Most notably, people are resisting the "zero-tolerance" anti-immigration policy that first kidnapped children away from their parents, then substituted indefinite family incarceration for indefinite child incarceration. That revised policy remains in force, although contested – a federal judge ruled this week that under the Constitution neither parents nor children can be detained indefinitely. Never­theless, pundits are getting the vapors because a handful of Trump operatives might get yelled at when they go out to eat.

That seems to me a weirdly lopsided set of reporting priorities, but then I live in Texas, where we're so used to being ruled by petty tyrants that we're wondering whether those folks on the East Coast can recognize a national crisis when it bites them on the ass. As it happens, the first of those reactionary court decisions had its Texas connection, as a 5-4 majority decided (in a tortured opinion by Justice Samuel Alito) that unless the state's GOP redistricters had been caught on tape enthusiastically singing the chorus of Randy Newman's "Rednecks," their packing-and-cracking of minority voters could not be construed as illegal "racism."

The result, as dissenting Justice Sonia Sotomayor summarized, is that "minority voters in Texas – despite constituting a majority of the population within the State – will ... return to the polls in 2018 and 2020 with the knowledge that their ability to exercise meaningfully their right to vote has been burdened by the manipulation of district lines specifically designed to target their communities and minimize their political will."

If the President Does It ...

Sotomayor was even blunter in her next dissent (joined by Ruth Bader Ginsburg), against the 5-4 decision by the court to uphold Trump's determination to ban Muslims from entering the U.S. By a series of contortions (delivered this time by Chief Justice John Roberts), the majority concluded that whatever candidate and President Trump had repeatedly said – that he fully intended to ban all Muslims from entering the U.S., because "they hate us" – his eventual "Travel Ban" was sufficiently country-selective to pass judicial muster.

Sotomayor reiterated the numerous Trump declarations declaiming that his actions were explicitly aimed at Muslims, noted how they recalled the outrageous internment of Japanese-Americans during World War II, called the decision "gravely wrong," and concluded: "Our Constitution demands, and our country deserves, a Judiciary willing to hold the coordinate branches to ac­count when they defy our most sacred legal commitments. ... [W]ith profound regret, I dissent."

Although the decisions nominally address different subjects, it's worth noting the interpretive links between the redistricting decision and the Muslim ban. Alito wrote that if you can't find a racist smoking gun, you can't prove racism. Roberts wrote that even in the presence of dozens of racist smoking guns ... when the president shoots, the court will look the other way.

From Worse to Worst

If all this were not enough, on Wednesday the court ruled that free riders on public employee unions can continue to benefit from union-negotiated contracts without contributing to union expenses, because money = speech. (Remember Citizens United?)

As it happens, the decision has less direct effect in Texas – one of more than two dozen "right-to-work-for-less" states – where public unions are already prohibited from collecting non-member fees. Texas will go right on treating all public employees like ... well, hired hands, to be underpaid, abused, or dismissed, "at-will." The "freedom" enjoyed by Texas working people – more precisely, by their bosses – can now travel the entire country.

Within a few hours, that decision was itself overshadowed by the announcement of Justice Anthony Kennedy (who joined in these reactionary decisions) that he will retire next month – handing over the appointment of his successor to possibly the most ignorant and morally vile person ever to sit in the Oval Office. Within minutes, Sen. McConnell was announcing that the Senate would "vote to confirm Justice Kennedy's successor this fall." (He didn't add that they should wait until the voters have spoken – maybe he just forgot to mention it.)

Perhaps if Democrats behave with great civility for the next few months, Trump and McConnell will pick a justice who will respect the actual Constitution and the law, rather than just defer to national Republic­an priorities. Somehow I doubt it.

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