Why SCOTUS Must Never Again Decide For Us

(By Phil Roeder – Flickr: Supreme Court of the United States, CC BY 2.0)

I’m not writing this because I’m progressive and don’t like recent Supreme Court of the United States (SCOTUS) decisions. I actually applaud them for arcane, yet valid, reasons. Inspiring this post is the greater complexity I see in the problem Americans face. That problem includes what we’re seeing at SCOTUS. That complexity, which comes enshrined in the US Constitution, I’ll examine in another post.

What I want to offer today is why SCOTUS, much like democracy, doesn’t serve anyone’s best interests anymore. I know this sounds unpatriotic, undemocratic, etc. And in some sense, it is.

But hear me out. I think you’ll agree SCOTUS is an archaic approach to having an authority (the courts) “fairly” rule on behalf of We The People. Indeed, today’s “Judicial Supremacy” and “Judicial Review” Constitutional doctrines essentially make permanently-appointed, old, (mostly) white, male lawyers as our final arbiters on matters related to Rule of Law and civil society.

Is that what’s really needed in modern America? I argue it is not.

Instead, we need a system pushing decision making on behalf of We The People as far down to individual people as possible. Democratic voting practices — even our one-person, one-vote process — are not enough. And the Judicial Branch falls equally short as the arbiter of civil, national and individual decisions using Rule of Law. Especially when it comes to individual “liberty”.

The point

I’m going to argue that SCOTUS has always mostly been about establishing legal precedent consistent with those with political power. Such rulings nearly always trigger backlashes of some kind. And because of that, SCOTUS, in today’s weaponized version, contributes to the further rending of our country’s national fabric. The political see-saw our nation’s founders thought would create a “more perfect union”, in my opinion, is struggling to do so. Though some will argue this nasty, divisive process we see underway exemplifies exactly how the founders intended it, there must be a better way than what the founders devised. And I think there is.

This isn’t the first time weaponizing SCOTUS happened. The Warren and Roberts Courts, for example, saw fit to usher in Constitutional Civil Liberties which legalized abortion, ended separate but equal schools, allowed same sex marriage and more. And though I, as a person of color, benefited from all that, such decisions, dear reader, are our problem.

That’s because either side of any political “fight” can, and will, weaponize SCOTUS. And inherent in any weaponization is a backlash against decisions the weaponization makes possible.

There’s a better way to make a “more perfect union”. For all their foibles and brilliance, it’s nice to see those penning the Constitution had in mind something increasingly perfect and enshrined that idea in the Constitution’s preamble.

But in this article, I’m asserting that perfect union cannot emerge with how SCOTUS functions. Not in a modern society as diverse on many, many ideals and values as ours.

Chambers of The Supreme Court of The United States. Many have worried about SCOTUS becoming irrelevant, including some Supreme Court Justices. Has that time come? (By Phil Roeder – Flickr: Supreme Court of the United States, CC BY 2.0)

Vengeance, politicized

My problem with weaponizing any of the three government branches isn’t that it can happen, which is itself a problem. The bigger problem, my problem, is what happens after those doing the weaponizing use the weapon they created. In every case a backlash happens.

Usually, that backlash looks like the other side, later, doing the same thing. Filibusters work this way. So do presidential executive orders. As I said above, the resulting backlash see-saw creates frustration, is highly inefficient, gridlocks progress and, taken to the extreme, creates exactly the situation we see today in the US. That is, a state wherein people seek vengeance at the cost of national progress and perhaps even the nation itself.

“Weaponized” can be defined as “exploited for the purpose of attacking a group or person”. One could throw in there alongside “group or person” “a lifestyle” and “personal choices” as well.

Any time the Rule of Law grants freedoms for some, it simultaneously punishes or limits freedoms of another. In doing so, that ruling sows seeds of discontent.

SCOTUS is too easily weaponized. We’ve seen it happen again and again.

That discontent festers. As it festers, other people who yearn for power, especially in an electoral democracy, can tap into that discontent and leverage it into elected positions. Then use those positions for their own aggrandizement and then seek vengeance upon those previously in power on behalf of the discontented.

Dobbs represents perfectly how politicians weaponized Christian values, leveraged those values into political office, used political office to capture SCOTUS, then used those court-sanctioned values to attack women. The backlash is just beginning.

A brilliant conservative strategy

Something more happens when those seeking power agree with the aggrieved. Their power lust grows. The other side becomes vile, criminals, drug-addicted enemies of the people, democracy or the nation. Such rhetoric turns people once seen as neighbors and family members into literal enemies.

We saw this happen right after Obama’s election, then again with Trump. Swift was the right’s reaction immediately after Obama took office. The little his administration achieved evidences this. The Trump Administration was white backlash. We’re still seeing knee-jerk reactions and surfacings of that backlash washing over America’s body politic.

Part of that backlash concerns the Browning of America. Something a not-very-small contingent of non-brown people fear. Fear of a growing, new, brown majority is a problem in many modern nations. Especially ones that had slavery and now profess democracy. Such legacy majorities may fear a new, brown majority, will exact revenge from decades of subjugation. Perhaps this explains why, at least in the US, some “Whites” fight tooth and nail to prevent the Browning of America.

In other words, one could speculate that a sense of guilt undergirds the Right’s current campaign. Their historical treatment of minorities bites them in the figments of their imaginative asses. Even as evidence shows people of color don’t want a comeuppance. They just want freedom and domestic tranquility.

How to wrest power through the Constitution

Perhaps America’s legacy majority’s fears drive them to scour the system searching for a way to stay in power. The problem is, they found one. And they are using that loophole to prevent a majority switch.

That loophole is SCOTUS and state legislatures. Today, it’s extremely clear that the legacy majority sees what’s coming and is trying mightily to stop it. Part of its brilliant strategy (and it is brilliant, as brilliant as its intended outcome is dastardly) is control of the Judicial Branch.

In other words, the right figured out that controlling the Judicial Branch holds more strength and power and control than holding the Executive Branch. Especially when the Legislative Branch can be kept in gridlock. Or even worse, if the right controls it as well.

Today a majority of state legislatures are Republican controlled too. The Right’s strategy is brilliant. They are patient, determined and measured. They will not give up. And so they’re seeing success. I’ll talk about state legislatures next time.

Maintaining domestic tranquility

Obviously SCOTUS decisions go both left and right. Some courts offered “wins” to conservative causes. Others offered “wins” to progressives. Sometimes progressive wins came out of conservative majority courts and vice-versa. So court make-up doesn’t always presage court rulings.

But every time it rules, SCOTUS curtails freedoms of some group or another either actually or perceptually. And since perception is reality for every human, perceived slights hurt just as much as actual ones.

Focused on freedom and liberty for everyone, most Americans would agree, I think, we should eliminate as many things as possible that curtail freedom. Of course we prefer an ordered and peaceful society too. So some freedoms – such as the freedom to harm another – must be limited in favor of domestic tranquility.

My argument says SCOTUS represents an outdated and thus poor way of creating either. What special insight do lawyers bring to creating peaceful, ordered society anyway? Their entire business of law is based on ADVERSARIALISM.

What insight do they have into a society that is increasingly becoming brown, challenging the gender binary, the patriarchy and upending through technology so many once-believed “facts of life?” Not a single tech expert, non-binary or trans person sits on the court. And skin-color tokenism doesn’t work either. Justice Thomas exemplifies this.

I argue further that the ridiculous idea of Constitutional Originalism is no way to govern a nation as diverse and wealthy as the modern United States. It’s incredible to me that originalists think those who drafted the Constitution foresaw all the ways America would evolve, then created a document we could interpret strictly and expect that strict interpretation would permanently meet a modern civilization’s future civil needs.

If at first you don’t succeed

And so today a condition exists where conservatives control most state legislatures, SCOTUS and, soon, most likely, the house and senate. Those same people stand committed to create an America which flies in the face of progress, diversity and freedom. Unless it’s freedom according to how they define it.

And they just might succeed.

Because the framework penned by our country’s founders is uniquely vulnerable to people who want to gain control, keep it, then use that control to force others to live by their standard. Trump showed how easily it happens. Keep in mind though that Trump acted with a well-coordinated, fairly large and persistent team of smart people intent on dominance and control. Trump’s failure on Jan. 6, 2021 was this team’s first attempt. So long as the nation’s framework remains as it is, I see no reason why Steve Bannon, Roger Stone, Michael Flynn and the rest won’t try again and again and again.

In a nation governed by Rule of Law and our current government framework, that’s inevitable no matter who gains control. It’s inevitable because that’s what law-making does. It gives control and power to those making the laws. Then it forces everyone else to follow whatever rules get made through Law Enforcement.

Which is why conservatives get pissed when progressives rule and why the opposite holds true.

For many decades, most Americans believed enough in our collective national values and norms that the Rule of Law worked. SCOTUS worked too because it largely operated within the boundaries of those ideals, especially norms. Same with the Executive and Legislative Branches.

Admitting an inconvenient truth

Not so in today’s modern America. Diversity of nearly everything, but especially of ideas and lifestyles, makes getting majority agreement a conundrum, to put it lightly. Civility and adherence to American norms both died with Trump’s rise. So this new reality begs the question: why are we still trying to run our country based on democratic principles?

And if we’re courageous enough to acknowledge the answer to that question is: “we don’t want to anymore”, what’s a good alternative to democracy? And if we get to that point, haven’t we also rendered SCOTUS moot just by agreeing it can’t possibly represent America’s modern, diverse, liberty-loving body politic?

A Gallup survey measuring SCOTUS job approval over the last 20 years shows a rising disapproval rate among Americans. Today it stands at a 20 year high disapproval rate:

Confidence in SCOTUS tells a more dismal story. Only 25 percent of Americans have a “great deal or quite a lot” of confidence in SCOTUS.

The data also show today’s conservatives are more confident in SCOTUS than independents and progressives. But you’d expect conservative confidence in traditional institutions. And, given how many conservatives justices now sit on the court, you’d reasonably expect even greater confidence among conservatives.

And yet, only 39 percent of them have “a great deal or quite a lot” of confidence in the court.

Which brings us to another, perhaps inconvenient admission. If we are done as a nation with democracy, one governed by a constitution which establishes the three government branches, what’s a better way? Is there a better way than the cherished Rule of Law political doctrine combined with democracy?

I think so and here’s why.

Not the Rule of Law

Under Rule of Law, all someone need do to get their way, and enforce their way on others, is enact a law. Anyone wanting power in such a society can easily get it too. All they need do is capture the process by which laws get made and enforced. Once that happens, it’s too easy for the one in power to keep power.

That’s what we’re seeing now. Those thirsting for power figured out how to capture Rule of Law governance processes as laid out in the US Constitution. They’ve prosecuted a decades-long strategy for capitalizing on the Constitution’s vulnerabilities. Vulnerabilities which also exist in the “Rule of Law” political philosophy, enforced by SCOTUS.

Rule of Law was a great alternative back when kings ruled. Their arbitrary way of meting out justice and ensuring peace and prosperity through force, didn’t measure up to a philosophy wherein everyone was equal and accountable to a system of rules or laws created and agreed to by those comprising the society.

But again, in an extremely multicultural, diverse, more enlightened to their self interests, and highly ideologically multi-faceted collection of humans, Rule of Law and the system which keeps it working…doesn’t work. We’re witnessing it breaking down all around us. Alongside that, we have a large group of the body politic so fed up with the system, they’re willing to use force to tear it apart, then enforce their way.

Rule of Law seems it might stop their first attempt. Will it stop their second, third, fourth and fifth?

HANG MIKE PENCE! — The brilliant strategy of riling disgruntled Americans nearly earned Trump and his allies the most powerful seat in the free world. Their plan culminated with the Jan. 6 seditious insurrection, which failed this time. What’s keeping them from trying again? (Photo by Tyler Merbler from the United States – CC BY 2.0,)

We’re in a new era

The good news is such attempts at overturning 200+ years of democracy prompt new thoughts about what form a “more perfect union” might take. Such explorations alongside overt acts at overturning the status quo indicate our nation entering a new era. An era where we leave behind the old in favor of the new. Just like we did with King George.

Make no mistake: Rule of law worked for a long time. Just as did the rule of a divinely-placed monarch. But we now see fissures showing up in the democratic philosophy as we did with monarchs. This is intentional. It’s intended to prod us to the next evolution, in the same way the rule of Kings precipitated Rule of Law.

That next evolution involves an evolving humanity. We’re more interested in our individual liberties, liberties which align with our individual values. Values which set us apart from one another. We focus on these so much, many of us have forgotten values we share. I assert this dynamic too represents forces prodding America into the future. A future to which we can’t have with the Rule of Law.

A better alternative to Rule of Law now exists. It comes enabled by technological advances as well as greater spiritual and humanistic understandings all of which support and enhance each other. This combination can create a society of relative peace and domestic tranquility for everyone, no matter their values. Let’s look at that next.

Maximum freedom for all

Our nation and its people can enjoy maximum freedom for all with none of the negative effects that come when individuals think they must control others’ freedoms to feel free themselves. We can have this as our national culture.

But first, we must seriously examine our collective culpability in creating exactly the opposite of this kind of freedom so we don’t repeat that past. Then we must grow out of indoctrinations keeping many of us fanatically attached to controlling others’ freedoms in order to ease our own anxieties, fears and insecurities.

Instead of maximum freedom for all, with Rule of Law, we must live with limited freedoms. That’s because under Rule of Law, certain values and morals become enshrined in laws which run contrary to other values and natural life as well.

One such contradiction is this idea that people must earn their living. Those who do not must be lazy and “good for nothing”. “Success” and “competition” get elevated under this idea that you must earn a living, then enforced with shame and poverty if you don’t “succeed”. You can bet a money system, such as capitalism, that puts a price on necessities, equally supports this earn-a-living trope. And yet, nothing inherent to the natural world says things must cost anyone anything.

DON’T MAKE THEM LAUGH – How many of these Giraffes do you see toting wallets or concerned about financial retirement? None! That’s because they live in a state of abundance. So do we! (Photo by Harshil Gudka on Unsplash)

Only humans must earn

You don’t see any other living thing on the planet running around doing things to make money so they can get what they need. Show me another living thing with a bank account, or needing to save in order to plan for “retirement”. I promise you won’t find one. So our Rule of Law doctrine, already creates a BASIC and FUNDAMENTAL anti-nature way of living. The expectation that people should earn what they get is not fundamental to how reality works.

Another contradiction is “scarcity” as fact, which actually is totally made up. Scarcity is a byproduct created by a combination of many values and beliefs, including religious beliefs and beliefs that are distorted ways of seeing the natural world. Such distortions cause inefficiencies and redundancies which turn abundant things into fictionally scarce things.

These values, beliefs and distortions all run counter to natural life. In natural life “competition” and “success” don’t exist, contrary to what Darwin says. Neither is “scarcity” evident in natural life.

Human beings are the only living beings forced to earn their livings under scarcity conditions. And in such an environment we must create competition and success so future generations receive and believe our beliefs, thereby perpetuating our distorted anti-nature societies.

Every other living thing enjoys providence, where all they need gets amply provided. Why not humans? Think about that.

Time for a new way

Someone may point to exceptions of course. But those exceptions aren’t the rule in natural life. Natural life provides everything for free, abundantly, and joyfully. Can we say the same about those things humans must have to thrive?

I don’t think so. But we can. We can’t today largely because our ancestors duped us into thinking scarcity, Rule of Law, the Constitution, “economics” and all the other values and beliefs enshrined in these doctrines were somehow the Law of the Land or Natural Law.

But they’re not.

I believe the human species faces the moment of “serious consideration” I mentioned above. That’s why so much churn shows itself today. Legal scholar Larry Kramer recently said on a podcast that America now stands between ideas that can galvanize American consciousness. Everyone recognizes the crises we face, he said. But no one yet offers the new way.

A new way now exists, however. One that can fully replace all “isms” on this planet. And make no mistake. Capitalism isn’t the only system running counter to natural life. Socialism, the conservative Bogeyman, and Communism, the neoliberal nightmare, also run counter to natural life. For, even in these systems, people must earn a living.

So how can we live in luxury, freedom and harmony with the natural world? How can we enjoy things we need, in abundance, without needing to earn them, or force others to give them to us for free?

It’s easy, but not simple

The future requires a better way, one that doesn’t pit people against one another like Rule of Law does. It also must significantly resist those who want to control others, while enabling maximum freedom, which includes freedom from needing to earn a living. In a nutshell, we can describe it in a nice info-graphic:

How the new way creates wealth, freedom and prosperity at no cost to anyone.

The new system works like this. As illustrated at point one at the top of the graphic, people who make things, called Producers can make whatever they want. They get rich in two ways: making things others want, and making those things in ways which cause minimal harm and maximum benefit.

An algorithm calculates how much harm and benefit those things create. Measuring such things can happen easily once the framework gets built. Both the algorithm process and framework design already exist.

Point two in the graphic shows that when consumers enjoy what producers make, Net Benefit Value (NBV) gets produced. We generally define NBV as “all the good things produced by something when it is consumed, minus all the bad that thing generates by being created and consumed”. NBV only happens when a good or service gets consumed. Goods sitting on a shelf create no NBV.

Points three and four illustrate the measurement process. An all-volunteer organization called the Copiosis Organization observes and gathers data on production and consumption activities. These volunteers feed data into the Copiosis Algorithm, which determines, based on predefined measures set through direct citizen participation, how much NBV shows up once something is consumed.

Total freedom enshrined

Assuming the Net Benefit Value is positive, people responsible for making that consumed thing are rewarded with Net Benefit Rewards (NBR). Those people can then use their NBR to consume goods and services tagged as Luxuries by their creators.

Meanwhile, everyone gets all the Necessities they need at no cost to them. Like all other goods and services, Producers create Necessities. Producers tag products and services they make as Necessities or Luxuries. No one compels any Producers to designate their output as either.

Producers get their raw materials and capital goods from those freely giving those things. That’s because when they give them, and Producers create NBV, people giving them raw materials and capital goods at no cost get NBR just like Producers.

Lots of subtlety underlies this graphic. For one, this graphic illustrates a way in which all of us can enjoy freedom no matter our values or ideals. This system defines freedom this way:

This defines the total freedom available to all human beings. The problems with this freedom will come when people who most clamor for freedom feel their freedom isn’t freedom if they don’t get to control other people’s freedom.

In other words, anyone trying to curtail another’s freedom, in this system, generates a lot of trouble for themselves. That’s because, in this system, those known as Producers, have final say as to who gets what they make and how much.

So if you’re someone who thinks everyone should think or live like you, and you take action trying to force another into your way of living, Producers are in no way compelled to give you anything. Even though the system says people get all their Necessities at no cost to them, “no cost” is not the same as free.

It’s total interconnection which is natural

Thinking through this, one arrives at a profound realization: In this new way, those who provide things to others control how the society works. And everyone provides stuff to others. No exceptions. But everyone also depends on those they provide to because those people help them provide what they provide.

A business owner, for example, would be a producer. But her employers are producers too. She no longer controls their income. Income comes from the algorithm. This gives great power to labor. But no more than management has. That’s worth thinking about. This new way puts labor and management on the same side of the negotiation table. Since costs get eliminated, and salaries don’t come from revenue, no negotiations are needed.

The system recognizes, in other words, our interconnectedness. And no matter how rich you may get in this system, you’re still dependent on others. Others who can deprive you of everything you need or want if you act like a dick.

This new way, in my opinion, gets as close to enshrining natural life into a resource distribution and wealth creation system as possible. It is not an “economics” because this system stands on a fundamental abundance of everything rather than scarcity.

THE NATURAL WORLD IS ALL INTERCONNECTED – The new idea I have in mind creates a civil society based on natural interconnection. (Photo by David Marcu on Unsplash)

We are a nation of individuals

In this system, SCOTUS and the other government branches become largely irrelevant. National leadership gets pushed as far as possible into the depths of civil society: to each individual citizen. Not through voting, but literally through living one’s values and participating in determining numerical values the algorithm uses to enrich the citizenry.

There’s so much more to share about this system, which explains why we have an entire website going into extreme detail.

It’s time we reach for a more natural life. Nature wants us living naturally. Capitalism, democracy and our current government structures are not natural. That’s why they can’t serve the nation we have become.

Which is a nation of individuals, with our own individual passions, values and a desire for real freedom on our terms. That’s a freedom which actually frightened those who penned the Constitution, because the vision of such freedom potentially meant the landed rich losing everything.

That’s not the case today. Today our prosperity and domestic tranquility depend on an extreme freedom our nation’s founders couldn’t dream of. One that offers everything to everyone while preventing anyone from controlling another.

That’s something in everyone’s self interest.

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