JP Sottile for BuzzFlash: This Week, SCOTUS Again Showed How America Is Now Governed by Extremist Minority Rule
July 2, 2022
By JP Sottile
This past month, the Supreme Court threw down the gauntlet.
A much-lamented 6-3 majority opinion specifically undercut the EPA's ability to regulate power plant emissions, but, at the same time, it broadly established a hard "textual" interpretation of the Constitution that will lead to hundreds of court challenges lodged against countless regulations established by a panoply of Executive Branch agencies over many decades.
This "hard" textual approach says that any rule generated by an agency in response to an act of Congress (rule-making is what agencies do with the text of a law after a law is passed and signed ... it's how laws actually get implemented) must directly reflect the specific language written into the law by Congress. There is no wiggle room. If you want to clean up the air, you'd better find a way to explicitly lay out what that entails ... in detail and with every "i" dotted, every "t" crossed and every action specifically justified by the "letter of the law."
What this amounts to is the firing of a starting gun, with the same "Conservative" (I use quotation marks because I believe most self-described "Conservatives" are more accurately described as "reactionaries") legal machine that spit out the cookie-cutter-fashioned ideologues sitting on the Supreme Court now likely poring over a bevy of rules issued by the Depts of Agriculture, Interior, Labor, Commerce, Transportation, Health & Human Services, etc., to find instances where rules do not directly reflect the word-for-word language of the act of Congress upon which those rules are predicated.
Yes, the Judicial system is probably about to be flooded with legal challenges that will amount to a recurring debate over exactly how many angels the Congress explicitly said they want dancing on the head of a pin ... and, moreover, what are the exact dance steps Congress said those angels should be dancing ... and what is the exact music Congress directed them to be dancing to?
But it's even more pernicious than that.
That's because the majority knows that their high bar for Executive Branch rule-making, and for environmental regulations in particular, is one that is unlikely to be met by a Congress for the foreseeable future.
That's because an environmentally-minded state like California, with 40 million Americans, only gets 2 Senators, while the Evangelically-minded, resource-extractive states of North Dakota (760K people), South Dakota (880k people), Wyoming (580k people), West Virginia (1.8m people) & Oklahoma (3.9m people) get 10 Senators to represent 7.9m people ... and that's not to mention that California's 2 Senators are already cancelled out by the petrostate of Texas (28m people).
If you add Texas's population to the other states listed, it totals 36m people ... and that's still 4 million less Americans than are found in California, but that bloc of environmentally indifferent states has 12 Senators to California's 2. Then you can start cancelling out Washington with Louisiana, New York with Florida, Oregon with Nebraska, Vermont with Mississippi and so on ... but the core advantage remains and, in fact, it builds as states like Michigan (10m) and Illinois (12m) get cancelled out by smaller states like Alabama (4.8m) and Arkansas (3m). The simple fact is that the Senate is where the will of the majority of the American people goes to die, and that's to say nothing of the distorting role gerrymandering plays in the House of Representatives
The composition of the SCOTUS was engineered to exploit this stark reality. The majority's Justices are products of a well-funded grooming process that steeped them in "Originalist" and "Textualist" legal theories (and yes, they are just "theories") that depend upon the long-term inability of the Legislative Branch to write and pass significant environmental laws that they, in turn, would have to uphold based on the textualist standard used in today's ruling to scuttle the EPA's attempt to implement its remit to protect the environment from climate-altering pollution.
But the engineers of this Minority Rule paradigm, which is quickly becoming this nation's governing paradigm, also believed that those potentially significant laws were no threat because they're confident that Congress will not pass future-shaping laws they don't like, whether on the environment or guns or on the right to abortion. They're confident because they've got a zealously reliable partner in political Evangelicalism that can use the bully pulpit in the churches (and Reality TV Game Show Hosts) to preach the fear and loathing needed to retain their hold on those small-population state Senate seats and, in turn, perpetually block key legislation despite its high approval in national polling.
It's why "national polling" never seems to translate into political reality. And it's why this nation's polity is now stuck with a majority in the Court that will likely perpetuate minority rule for decades to come.Follow
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