From today’s editorial page…


The US Supreme Court leak

So did some clerk, did some justice, upset well-laid Republican plans to announce the repeal of Roe v Wade shortly after the US general elections in November? Are we to treat the person who violated old norms to do that as a disgusting criminal, upon whom the full weight of penal law must be brought to bear?

Joe Biden needs to wise up about such things and invoke his powers of pardon and commutation as needs to be the case. Is it in the US national interest to preserve that part of high court secrecy, even if what the justices may have been planning was a gross abuse of it? So allow the investigation to proceed and the leaker to be penalized, but lighten the penalty with a commutation or a pardon while leaving the rule in place.

Similarly, did Edward Snowden violate an obligation to keep NSA secrets, even if his offense was to reveal abuses and to advise the American and world public about things which they ought to know? So make a plea bargain that allows him to come back from Russia with his family, keeping the rule in effect but lightening any penalty on a public interest whistleblower.

The Julian Assange case is not similar. We might argue with his judgment or criticize his personality, but he was a journalist who received information – about a US war crime against a Reuters news crew and innocent civilians who were nearby, about a US foreign policy that for many years was based on lies, about a venal and petty crowd that had taken over the Democratic National Committee – and published this information. There is no rule worth defending in the Assange case. US charges against him should be dropped.

Back to the draft of the court ruling to overturn Roe v Wade, what’s important is the underlying matter, not the breach of protocols that allowed public access to and commentary and agitation about the proposed decision. All the more if the intention was a post-election sneak attack, but just the legal questions about whether the US Constitution protects rights to privacy and whether a woman’s decision to abort a pregnancy falls under the shadow of that protection are matters of vital public interest.

By lopsided majorities US public opinion favors legalized abortion, voting rights unfettered by racial or partisan discrimination and, subject to protections for the freedom of individuals, democratic government that rests on a cornerstone of majority rule. There is a 6-3 Republican majority on the US Supreme Court that believes in none of these things.

How it got that way can be traced along many lines. We can even review more than a century and a half of money trails to discern the evolution of the Republican Party from an organization that wanted to protect northern industry from the competition of slavery to the party that freed the slaves to the party of the robber barons to the party of corporate America to the white supremacist coalition that it is today.

In the here and now, the Grand Old Party’s stand on abortion in particular and on privacy rights in general offends most Americans. The leak of the draft decision by their top politicians in robes puts their hopes of regaining control of Congress in great peril. No matter what they might plead about objective and dispassionate scholarship by an independent judiciary, this is a political power play by the Republican Party and one of its nastiest and most reactionary components, the Federalist Society. It’s a political maneuver and ought to be fought politically.

So, how do you fight this politically? In addition to the noisy rallies, the quiet lobbying, the legal pleadings, the passionate speeches and writing? It starts with beating the Republicans in this year’s elections. Not by going for “electable” imitation Republicans who would give Democrats a majority only on paper. It means, for one thing, scoring a net Democratic gain of at least two US Senate seats so as to make Senators Manchin’s and Sinema’s obstructions irrelevant.

Win working Democratic majorities in both houses of Congress, and the main arena becomes the senate. The dance steps go something like this:

1. On a bare party-line majority vote, change senate rules to abolish the filibuster.

2. On a bare party-line majority vote once the filibuster is gone, expand the membership of the Supreme Court to 15 or more, to be filled by President Biden’s appointees. The US Constitution does not specify how many justices there shall be on the high court. If the court expansion is to be a lasting political success, the president needs to appoint inspiring champions of justice rather than mere party loyalists or corporate lobbyists. The good ones come in all colors and genders but what matters is “good ones,” as in following and extending the great Democratic traditions of Justices Frank Murphy, William O. Douglas and Thurgood Marshall.

3. On a bare party-line majority if need be after the GOP strangleholds on the Senate and the Supreme Court are gone, pass legislation to revive the US economy, strengthen democratic institutions and protect individuals’ freedoms, such that voters will fondly remember the power plays to pass them as brilliant, just and necessary.

But first, Democrats have to win the November election, starting by choosing the best possible candidates in the primaries, after those battles pulling together as a solid coalition for the fall, and going on to make retirement in a dacha outside of Moscow an attractive alternative for some now high and mighty Republicans.


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