Rule of Law?

America is a country where the principles in governing are maintained by following what is known as the Rule of Law.  According to US Courts – “Rule of law” is a principle under which all persons, institutions, and entities are accountable to laws that are:

·         Publicly promulgated

·         Equally enforced

·         Independently adjudicated

·         And consistent with international human rights principles.

We have been subjected to a government over the last three years which has disregarded established laws, tried to circumvent the Federal Courts processes, favored certain groups over others, ignored validly issued subpoenas, and demanded that civil servants serve the President rather than the people. These actions have been supported by Senate Majority Leader Mitch McConnell, Republican Senators and their party; their actions in the impeachment hearings were inexcusable. So, it might well be time to question whether we are actually a nation under the Rule of Law. Our country was set up with three equal areas of governance: Legislative, Judicial and Executive, but this President speaks about ‘his’ military and ‘his’ judges and ‘his’ party as if no others have a say. He obviously does not believe in these three divisions of power.

Chief Justice of the Supreme Court Earl Warren during the 1950’s brought the Court to a unanimous decision in Brown vs. the Board of Education of Topeka which ruled that segregated education was always unconstitutional because it was inherently unequal. A subsequent ruling indicated that integration must proceed with all deliberate speed.  Senator Harry Byrd of Virginia responded with an attempt to organize massive resistance across the South to this change which was deemed to demand an “unnatural mixing of the races”. Many states closed their public schools or decreased funding for education, so that black students had only inadequate education, while white students went to hastily established private segregated academies. President Eisenhower sent Federal troops into Little Rock, Arkansas to integrate schools there in 1957 as courts had ruled that integration must proceed. Massive state resistance continued into the next decade. Signs were erected throughout the South to “Impeach Earl Warren” as the justice was blamed for his leadership on this matter of integration. So, the turmoil based at the court today and the prayers for the health of Justice Ginsberg are not unique to our time.

The President has had the chance to appoint two new justices to the Court during his term, due to the unethical and probably illegal moves by Mitch McConnell who denied President Barack Obama his valid chance to appoint another justice.  McConnell has also seen as his major function appointing judges to lower courts; appointments which he refused to process under President Obama. Both of the new appointees, Neil Gorsuch and Brett Kavanaugh have been deemed sufficiently conservative and strict constitutionalists to appease the far right and religious conservatives whose only concern appears to be that of abortion restriction. The President has bragged about wanting to appoint even more Justices as decisions this week ran contrary to his concerns.

What were those decisions: The first – Bostock vs. Clayton County Georgia was written by Justice Gorsuch and indicated that the Civil Rights Law of 1964 under Title VII, did not permit employers to discriminate on the basis of sex, which includes sexual orientation, gender identity and transgender status, thus providing a victory for the LBGTQ community and a defeat for the President who has been actively prohibiting transgender rights under the ACA and in the military. Sadly, however, the travel through the courts system took so long that two of the three original petitioners died before this verdict was rendered. According to census information – 5.1% of women and 3.9% of men in the US identify as gay which is approximately 15 million people.  About 1.6 million Americans identify as transgender.

The second decision, written by the Chief Justice, (John Roberts) ruled against the Presidents’ overturning of the Deferred Action for Children Act (DACA).  The Administration wanted to leap- frog the usual judicial processes of stepping up through the courts and eventually reaching the Supreme Court if accepted as an issue. This decision ruled on procedural matters which dealt with adequate notice to the parties and other niceties of the law which were bypassed in this instance, in fact this action was deemed arbitrary and capricious by Justice Roberts. Basically, if I understand this correctly, the administration changed its argument between presentations at different courts thus negating its own case. If arguments differ then one is compelled to start anew.  As Linda Greenhouse wrote in this New York Times article:

"Given the decisions due in the next few weeks on abortion, religion, the president’s tax returns and the Electoral College, among other cases, it’s too soon to place a label on this pandemic-disrupted Supreme Court term. The justices will issue decisions that will infuriate, reassure, surprise and even break hearts…"

DACA primarily affects young people who came to the United States with their parents who were undocumented and have spent most of their lives in this country – many now known as dreamers – who through no fault of their own could not become citizens.  President Obama tried to provide a path for them, provided they attended school, kept out of trouble, joined the military or served their communities - to eventually apply for citizenship and – in the meantime – be able to work legally when they came of age.  Approximately 650,00 young people are in the program now.  Homeland Security has not allowed any new applicants, but has allowed renewals so far in this program.

I tend to agree with her – maybe they are giving the President a few raps on the wrist before they deliver the meatier decisions mentioned above. I think they might go along with the religious rights schools tax issue, punt back to precedent from the court on the abortion issue (and basically rule against Louisiana on the requirement for providers of abortions to hold local hospital privileges) and rule against the President on the tax returns along the lines of the Nixon tapes/papers decisions – I hope. But I am not a lawyer, just a concerned citizen here who worries that the court is losing its nonpartisan mantle. But I am trying to make an educated guess, rather than just go out on a limb, not quite the lottery, it seems.

But what should I think, especially after the 2010 Citizens United decision which allowed corporate speech and unlimited hidden financial contributions to political campaigns and The Shelby decision of 2013 written by the Chief Justice. This took away the protections for elections which were under the Voting Rights Act but which had to be renewed periodically. This, today, has allowed the states of Georgia, Texas, Florida and Alabama, among others, in recent years to further restrict access to voting, purge voting lists, require id’s, which - if the law had been upheld - would still have been under the jurisdiction of Justice Department review, due to past inequities. He concluded that enough time had passed, states had adhered (because, argued Justice Ginsberg in dissent, they knew that they were subject to review by pre-clearance before they changed requirements) and racial disparities had improved so that these protections were no longer needed unless Congress so decided.  Perhaps he needs to look outside his windows these days, racial inequities are still very much with us.

Timely Tidbits       

•  Attorney General Barr fires the US Attorney for the Southern District of New York – and lies about the process – perhaps the investigations were getting too close to his boss – or should I say co-conspirator?·       
• The President holds a rally and people stay away - due to COVID-19 worries, protesters, the media, lack of enthusiasm, young activists pranking? Maybe all of these?
• The Bolton Book passes Court review – sorta – would his testimony have made a difference in the Impeachment hearings?  Are you going to read his book?
• Finally, the President admits he slow walked Corona virus testing, because the numbers did not look good, then said he was joking.  Well, he was right about one thing, the numbers do not look good!

COVID-19 Weekly update:  Not really showing much of a slowdown.

Total Cases in the United States - 2,248,049  

Totals Deaths in the US – 119,615

Total cases in Maryland –    64,606                         

Total MD Deaths –                   3,056

So, how to sum up this week – tumultuous, much as the previous few months have been. Some states are opening up, then closing back as virus numbers increase.  People are talking about the experiences of dining out in the Age of The Virus. Businesses are opening their doors gingerly as the economy stutters with 40 plus million on the unemployment rolls and unemployment remittances are not keeping up.

So, maybe as the President accepts no responsibility for anything, blames Obama and the leftists for his troubles and bemoans his fate as underappreciated, perhaps I will send out a few lines from Shakespeare as fitting to him for my close tonight:

When in disgrace with fortune and men's eyes
I all alone beweep my outcast state,
And trouble deaf heaven with my bootless cries,
And look upon myself, and curse my fate, [abridged] Sonnet 29

‘Til next week – peace.