The Court overturns two laws passed by Congress. Everybody cheers!

Summary:  This was a bad week for the Republic. No matter what your opinions about Same Sex Marriage and the Voting Rights Act, these decisions weaken us. As we become more accustomed to undemocratic solutions, our ruling elites become stronger. We become weaker.

Oracles, ruling on the basis of a document in which few people believe.
Oracles of a document in which many of us no longer believe

It {is} an axiom of eternal truth in politics that whatever power in any government is independent, is absolute also; in theory only at first, while the spirit of the people is up, but in practice, as fast as that relaxes. Independence can be trusted nowhere but with the people. They are inherently independent of all but moral law …
— Jefferson in a letter to Judge Spencer Roane, November 1819

The Supreme Court overturned two laws passed by Congress and signed by the President: the Voting Rights Act (VRA) and the Defense of Marriage Act (DOMA, signed by Clinton in 1996). Being bystanders and sheep, Americans cheered their teams’ wins and boo’d their defeat. A profoundly undemocratic institution has gained a greater role over our elected representatives no longer matters to us.

Being fools we do not realize that there are not two teams, just two factions of our ruling elites. This week the Court did their will on both verdicts. Gutting the VRA allows the GOP to continue its voter suppression projects, to keep the more unstable lower orders in line (having no property, nothing to lose, oligarchs always worry they might be mobilized against the regime).

As for the victory for gay rights, it is politically inconsequential. Our plutocrats have relearned ancient wisdom: it’s best to leave the proles to their own lives. Who they screw, their family structures, how they organize their communities — none of these things matter. Our rulers focus on the essentials of concentrating income, wealth, and power.

Gramscci's insight while in prison
Gramsci’s insight while in prison


While overturning DOMA was progress, it was not our victory. It was a gift, one that by its very nature weakens us. An quite unnecessarily, as the rapid momentum of public opinion made victory inevitable in a few more years. Such as an act of collective action,  working through our elected representatives, strengthen the Republic. We shape America, making our history, showing our power to govern ourselves. This is the natural course of evolution in a democracy.

But many prefer quicker extra-legal measures. They want results NOW, impatient about the procedures created by the Constitution, and the consequences of overthrowing them.

The Court is often ready to act as priest-kings. And our elites welcome our willingness to accept undemocratic solutions, taking another step towards a New America.  Even the overthrowing of DOMA furthers their ends. As with Roe vs Wade in 1973, the likely result of Supreme Court voiding the will be to diminish many people’s confidence in the government.

The Republic — and hence us, the people — grow weaker with each exercise of extra-constitutional power by the Courts and the Executive, no matter how well-intentioned. Unless we reverse the trend, the likely is that eventually our leaders will take bold action, promising to give us what we want — security, prosperity, whatever — without bothering to pretend that they follow the Constitution. At that point the Constitution will have died.

For More Information

About same-sex marriage:

  1. Another American judge weakens the Republic’s foundation, 8 August 2010
  2. The quest for Black’s civil rights was not like the quest for same sex marriages, 11 August 2010
  3. Civil rights just took a step forward, the slow hard way. The right way., 9 November 2012
  4. What’s the future of the family in America? How will that change our government?, 11 November 2012
  5. Should we thank the Court as it rescues us from our bad laws? Or just bow?, 28 March 2013
  6. Do we want to bring back traditional marriage? What is traditional marriage?, 3 April 2013

About our Courts:

  1. The sky darkens over America, as we (the little people) are made smaller than we were last week, 24 January 2010
  2. Why should we care about the Supreme Court’s ruling allowing strip & cavity searches of prisoners?, 5 April 2012
  3. More death throes of the Constitution. Nothing remains in the ruins but politics., 20 June 2012
  4. Looking ahead to the next step of the quiet coup, and a new America, 3 July 2012
  5. Should we thank the Court as it rescues us from our bad laws? Or just bow?, 28 March 2013



17 thoughts on “The Court overturns two laws passed by Congress. Everybody cheers!”

  1. Far from being a case where the Court is smacking Congress down, causing it to loose face, we instead see an institution lurching about, demonstrating OODA loops that – while not yet broken – are frayed.

    I am making no comment on the merits on the recent decisions, either pertaining to gay rights or to the Voting Rights act. Nor am I making any comment on the merits of the Locker nor the Warren Courts, which I shall discuss below.

    However, we presently see a Court lurching about, upholding civil rights here and striking it down there. Indeed, one result of the recent cases is that we must struggle to define what civil rights even means. And it would be difficult to project in what direction they shall proceed. Hardly a strong, clear, firm signal.

    In contrast, between 1896 and 1936, the Lockner Court maintained a consistent, coherent pro-business approach. While many people – including me – dislike their rulings, the Court was proceeding in a consistent direction and was predictable and measured in its approach.

    Likewise, the Warren Court was clear and consistent. We knew what they were trying to do, how, why, and where things were going.

    We get no such clear message from the present Court.

    Yes, Congress is even weaker than the Court; so in relative terms it is being smacked down. And this is because the nation state, of which both Court and Congress are part, is in decline.

    1. These evaluation are of course subjective, but this Court seems dedicated not to a theory of law (Duncan points this out) but to the interests of our ruling elites – in the big cases.

      Simple, easy to understand.

    2. Here’s Bill Maher’s commentary on the Supreme Court, which is as good as any other: “Maher: Justice Roberts pulled Voting Rights Act decision ‘out of his ass’“, Raw Story, 29 June 2013.

      Note that, as a stand up comedian, Maher is an expert on improv.

      My response to Maher is that the Court’s improv performance will grow more and more conspicuous and will not be limited to civil rights decisions and will be fully as flimsy when “liberal” as when “conservative.”

      1. I’ll take the other side of this debate.

        It’s fun to mock the powerful. “Pulling stuff out of his ass!” It’s “improv!” They’re stupid. That’s the mockery by peasants of the powerful. Total bs.

        Seeing decisions of the powerful in this way displays orientation failure (I learned this from Chet Richards, based on insights of the late USAF Col John Boyd) in one’s OODA loop. They are not fools; you are just not seeing the basis of their actions.

        This post gives an alternative view, in which their actions are logical and purposeful. Just not our purposes. Just not playing by our rules. They’re building a New America.

        Reform remains impossible in America until people realize this. Laughter and mockery of the powerful are opiates of the masses.

  2. The following analysis is one explanation of why conservatives allow themselves to be pandered to, and exploited by, the corporate-plutocratic elites.

    The Unholy Marriage Of Red, Orange, and Blue Levels of Development [Authoritarian, Modern, and Traditional] in American Culture and Society“, Joe Corbett — Excerpt:

    A classic problem in critical social theory is why a large chunk of the working class in democratic societies seem to consistently vote against their own economic interests, and give their loyalty and support to those who do the bidding of the power-elite and wealthy. The answer to this has been a combination of explanations, from the authoritarian personality who fears and strongly identifies with a strict and punishing authority, to the culture of pseudo-religion, militarism, and consumerism that simultaneously empowers, soothes, and provides escape from the pain and depression of a life of drudgery and meaningless work, when work can be found.

    Under such circumstances it would be odd if a large percentage of the masses did not give their support to authorities who vow to uphold God and country, punish deviants, and sacralize family and marriage as the primary nuclear-unit of an endless-needs consumption ethic. In America these concerns are most clearly and strongly represented by Republicans, but no politician in America can be elected without these as foundational.

    Hence, authoritarianism, narcissism, and infantilization are woven into the fabric of oppression in advanced industrialized democracies like America through a steady dose of cultural entertainment and sports heroes (idolatry) – permanent militainment spectacles for quasi-religious patriotic redemption and deliverance of the disaffected and disempowered – daily, hourly, and minute-by-minute advertising of personal inadequacies and their consumer-product solutions (commodification of the soul) – ‘energized’ scapegoating (pathologized morality) of immigrants, Muslims, gays, liberals, etc. in conservative media, and this in a country where a large percentage of the population identify themselves as conservative.

    support for the idea of archetypal levels of social development:

    1. tribalism/feudalism (dependency, hostile collectives)
    2. modernism (independence, individualism)
    3. postmodernism (interdependence, holism/globalism)

    1. This is an important and two-century old question. In the 19th century it was about the alliance of the poor and blue collar workers with the conservative church and landed aristocracy. Now it is the blue collar workers with the GOP that gives lip service (but little else) to their concerns about social change (i.e, the culture wars) — and shafts them economically.

      A recent attempt to answer it is Thomas Frank’s book What’s the Matter with Kansas? How Conservatives Won the Heart of America

      Quite a mystery to me.

    2. Oh, please! It’s just Patriarchy…always and everywhere Patriarchy, with a little Calvinism thrown in for the wealthy class.

      1. Patriarchy is the ultimate “might makes right”, biology is destiny, last refuge of scoundrels, familiar to everyone. Patriarchy is founded on the principle that some inherent leadership, ruling wisdom, or basic star quality exists in one class of people by divine right, or Darwinism, or whatever justification can be perverted to purposeful inequality, and no quality exists in other classes (until the plebes, serfs, slaves revolt and kill off the “entitled”). As a member of a favored class, you may not be as familiar with the ramifications of Patriarchy, but ask any woman who isn’t servile, and she will give you plenty to contemplate.

        Favoring a Corporation, owned and operated by the 1% Elite for the purposes of the 1%, is part of that Patriarchy. The 1% know best, because otherwise they would be poor, like you! Having Legislative, Executive and Judicial branches that ignore, override and oppress the populace is Patriarchy of the “fascist oligarchy” flavor.

        Calvinism is the “saving grace” which overrides Christ’s (amongst others) egalitarian message about “rich men” never “entering the gates of Heaven” with the theory that God picks winners and losers, and none of your deeds can change His mind. Condemned at birth by poverty, or by financial reverses, to hell in this life AND the next, the condemned have no recourse, not good deeds, not prayer, nothing. But steal a fortune, and you rise to the Anointed Class! It is a miracle of propaganda, and coupled with an army, Patriarchy rules without ( in the public sphere) and within (in the warped personalities of damaged people).

        A “good” ruling is not a gift, it’s an attempt to get out in front of the mob so that one can claim “leadership”. Since the populace has already turned to equality, the “leaders” use the circus of “marriages” to distract the People from their growing inequality with the 1%; for currying favor with the 1%, the disenfranchisement of more of the non-elite, the conferring of “human rights” on non-human but eternal corporations, the abandonment of the Rule of Law whenever an Elite is threatened.

        It’s perfectly consistent, and entirely undemocratic. It will not end well, but it will end. What cannot continue, will not continue. And the parasitism of the 1% cannot continue.

      2. I think blaming so many things on the rule by men is a reach, with a weak foundation of fact and logic.

        The past century has been one in which many such stereotypes about race and gender are overturned, no matter how politically useful. While not a definitive rebuttal, the many aggressive female rulers in the past suggest that such steoriotypes about women are no more true in politics then they are in marriage and the workplace.

        • Eleanor of Aquitaine, Queen of England and of France, 1122-1202 — Lots and lots of wars.
        • Isabella I of Castile, Queen of Spain, 1451-1504 — Started the Inquisition in Andalusia.
        • Mary I of England (Bloody Mary), 1555-1610 — Seized the throne by force from her cousin, brutally oppressed the Irish and Protestents.
        • Amina, Nigerian Queen, 1515-1558 — Concuored the Hausaland city-states.
        • Catherine the Great, Empress of Russia. 1729-1796 — Wars of conquest to expand the Russian Empire, attacked Sweden, deepened opporession of the serfs.
        • Golda Meir, Prime Minister of Israel, 1898-1978 — Hard line policy towards Israel’s neighbors, expanded theft of Palestinian land. “There are no Palestinians.”
        • Indira Gandhi, Prime Minister of India, 1917-1984 — Declared Emergency Rule, brutally repressive in Punjab, built nukes.
        • Sirimavo Bandaranaike, President then tyrant of Sri Lanke, 1916-2000 — Seized the nation’s major newspaper, delayed elections for 2 years. Her oppression of Tamil Tigers helpped ignore their insurgency.
        • Margaret Thatcher, Prime Minister of England — As hard at home and militaristic abroad as they come in Britain.
    3. @FM-

      RE: “Now it is the blue collar workers with the GOP…”

      I also see parallels with the 19c, though slightly different from the European example you cite. See my earlier post:

      As in the antebellum, today’s hyperpartisanship has its uses. The issues are real enough, and the cultural divide between each party’s demographic “base” is wide. Politicians take advantage of this with over-the-top rhetoric, turning all issues into a cultural crusade against the radicalism of the progressive left or the bigotry of entrenched conservatism. The accuracy of these attacks is unimportant. The antebellum party system allowed Southerners to define themselves as ‘Whigs’ or ‘Democrats’ instead of ‘slavers’. The current system serves its purpose just as well, allowing plutarchs to define themselves not in terms of power or privilege, but as part of a culturally cohesive group that represents ‘real’ America. With partisan issues taking the fore, politicians, lobbyists, and corporate big wigs can plunder the American economy and strip American citizens of their liberties in a decidedly bipartisan fashion.

      T. Greer. “Ominous Parallels: What Antebellum America Can Teach Us About Our Modern Political Regime.” The Scholars Stage. 26 February 2013.

      Today’s politics are mostly a tribal affair. Do you support giving the president power to assassinate enemies in lands with which we never declared war? It depends on who the president is he is. That really is the wrong question. Better to ask: would you be comfortable having him over for dinner? The answer to both questions will be the same.

      Both parties play into it. Democrats don’t really want too many racist, knee-jerk conservative blue-collar workers on their side. They have worked too hard to define themselves as their opposite. (Same thing with Republicans and trendy urbanites). They both benefit by emphasizing cultural differences as often as possible. It is the only way for them to keep up the illusion that the greatest divide in the American republic is not between left and right, but between ruling and ruled.

      1. All interesting points. These perspectives are largely subjective, with the true situation emerging into view many generations later.

        I have a different perspective. One can look at late-Republic Rome (at the time not easily distinguishable from early Empire Rome) and see the political significance of the games. Or one can see the public’s focus on the games as part of a wider disengagement from politics, an evolution from active citizens to spectators.

        So it is today. The big polarization debate ignores the far more important bipartisan consensus on economic and national security policies. The 1% doesn’t care about screwing among the proles, or what ceremonies they undergo before or afterwards. They have no property, so what difference does it make?

        The intense personalization of politics is a major “tell”. Bush Jr was Hitler. Obama the antiChrist Islamic Commie Anarchist Moslem Jihadist. It’s a old political science maxim that politics become more personalized as the ideological differences narrow — in order for each party to maintain group identity and cohesion.

        Blogs have endless debates about details of military tactics and strategy, the deeper theory of politics, and whether Ziva will marry DiNozzo (on NCIS). They are all much the same: entertainment of no significance. Conclusions on the last are as likely to prove life-changing as the first.

        Explaining these things has become one of the primary functions of the FM website. IMO until understood, reform is not possible in America.

      1. “IS between left and right, NOT between those ruling and those ruled.”

        Quite amazing conclusion. Especially as the GOP and Democrats agree on so many of the key policies. And as American inequality of wealth and income hit new highs, while social mobility hits new lows.

        As I have seen so often in these comments, the New America will be well-established for years — or decades, perhaps even generations — before everybody people notices the change. Our broken OODA loop is IMO our greatest weakness. If we cannot see clearly, we cannot act effectively. If we cannot act together, we cannot win.

    4. RE – last comment: Might have mis understood me. I originally wrote “It is the only way for them to keep up the illusion that the greatest divide in the American republic is not between left and right, but between ruling and ruled.”

      I wrote that a little too quickly. What I meant was: “It is the only way for them to keep up the illusion that the greatest divide in the American republic IS between left and right, NOT between those ruling and those ruled.”

      RE: both comments:

      Well, you would find a parallel with ancient Rome – your Fabius Maximus. ^_~

      I agree with everything you’ve said in these comments. The real question is, how does one fix an OODA loop? Have we any historical precedents? It is easy to find examples of decline – what of rejuvenation?

      Perhaps most pressing is the urgent need to get those who oppose the establishment to see the unity of their cause. Someone – don’t even remember who at this point, there being so much commentary on the PRISM shindig – made the point that Michael Moore and Glenn Beck, two men on opposite sides of the cultural spectrum, are united by their opposition to the NSA. One might say that Washington politics falls on two axises these days – left vs right and establishment vs anti-establishment. The more people think along right/left lines, the easier it is for oligarchs to establish “New America.” The paradigm must be changed. Reform cannot happen until establishment vs. anti-establishment divide is seen as the real one.

      (I suppose such a coalition might seem a bit arbitrary, but aren’t all coalitions so? Jefferson and Adams were bitter enemies in 1800, but the closest of friends in 1776. Radical anti-establishment types left and right need to think like its ’76, not 1800.)

      1. Thanks for the explanation. As I re-read it, you were quite clear. I misinterpreted your followup comment.

        As for your question – I am out of ideas. I have tried everything I can think of, with total failure.

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