Justice Amy Coney Barrett was right when she argued that the Supreme Court is “not comprised of a bunch of partisan hacks.” Unfortunately, without a doubt, the conservative majority who decide the cases certainly are. Barrett didn’t stop to think that that was an utterly stupid thing to say while giving a speech at a celebration for Senate Minority Leader Mitch McConnell, the man who rammed her partisan confirmation through the Senate eight days before the 2020 election. However, the irony was not lost on the press as they recounted all the ways that she and her right-wing colleagues were acting as political legislators in robes.
To say things are bad with the Supreme Court is an understatement. It’s not often that conservative Chief Justice John Roberts scolds the conservative majority, but he was forced to do so earlier this year. Barrett and her partisan hacks bypassed regular order to suspend implementation of a unanimous ruling by a panel of three bipartisan lower court judges that would have stopped an illegal gerrymander taking away Black representation in Alabama. It was par for the course for this set of partisan hacks, although even its most naive defenders were shocked when they overturned Roe v. Wade. For the first time ever, the Supreme Court overturned a case extending a constitutional right, as well as broke the principle of "stare decisis," the doctrine of respecting prior decisions. Justice Sonia Sotomayor wondered out loud: “Can this institution survive? The stench that this creates in the public perception that the Constitution and its reading are just political acts?”
Gallup found that only 25% of Americans believe SCOTUS is driven by the U.S. Constitution and the law over politics, which is a historic low. There are things our legislative branch can do besides expanding the high court to make it more balanced, but none of them will work in a divided Congress. The best-case scenario to undermine this new judicial theocracy is to fight back at the state level. Thankfully, blue states like California, New York, Maine, and others have already taken ideological rulings and, with quick legislation, have turned them on their head. It’s an act of defiance that is not only effective, but right now, very necessary.
Around the same time Roe v. Wade was overturned, the conservative bloc of SCOTUS also tried to force Maine to give tuition vouchers to religious schools, effectively ending the centuries-old constitutional ban on direct state aid for the teaching of religion. There are currently 29 private schools in Maine participating in a state tuition voucher program, where private schools that meet the state’s criteria can get about $12,000 in taxpayer funding per student. Due to what has been the long-established precedent of separation between church and state, religious institutions were denied state funds. This did not sit well with two very conservative, discriminatory religious schools in Bangor, so they decided to sue. The conservative bloc at SCOTUS ruled in their favor.
It can’t be stated enough how much that case, Carson v. Makin, undermines existing First Amendment law. Once again, Sotomayor expressed her disdain in the dissent: “This court continues to dismantle the wall of separation between church and state that the Framers fought to build.” The two religious schools initially celebrated that they got exactly what they wanted. Yet their celebration didn’t last.
Fifth-grade classroom.
Those schools have policies, naturally, that discriminate against students and staff on a basis of sexual orientation and gender identity. The Maine legislature immediately responded to the ruling by updating a state law that stated all schools receiving state tuition must abide by the Maine Human Rights Act.
This law bans discriminating against someone based on their gender, sexual orientation, gender identity, ethnicity, or disability. This meant that the religious schools involved in the lawsuit wouldn’t be getting the funds after all. They aren’t being denied the money because of religion, which apparently isn’t a thing anymore, but they are being denied because they actively engage in discrimination.
Of course, there could be an easy fix to this: The schools could simply amend their policy to ban discrimination. Simple enough—but it will never happen. For the people who run these schools, Christianity always takes a back seat to being allowed to discriminate against other people. As if right on cue, a spokesman for those schools, Jamison Coppola, said they weren’t changing their pro-discrimination policies. In fact, he argued that discriminating against students isn’t really discriminating after all:
Yeah, it’s not so much discrimination as it is denying entry to certain categories of people they don’t like. That’s … entirely different?
As a result, the Democratic state attorney general said unless the schools are willing to abide by the same anti-discrimination law as every other private school participating in the program, they can forget it:
Maine 1. SCOTUS 0.
Meanwhile, on the other side of the country, there’s California. The Eureka State clapped back after SCOTUS single-handedly overturned what had been a bedrock principle of our legal system: that a person only has the right to pursue legal action if they are personally impacted.
Yet Texas passed an anti-abortion law that allowed random unaffected people the right to sue and collect damages from not just abortion providers, but from patients and even those who drive women to clinics. The point of this was to bankrupt providers and intimidate people into not getting abortions, but this type of outrageous ruling opened the floodgate to legal grifting and vigilantism. Despite being blatantly unconstitutional, the conservatives on SCOTUS put out an unsigned order allowing the Texas law to go into effect.
The law was written specifically to subvert oversight and undermine judicial review, but California figured out quickly that they could use that ruling to their advantage as well. Gov. Gavin Newsom wasted little time fighting back using the exact same language that SCOTUS approved for Texas, but this time, regarding gun manufacturers.
Under the new California law, a random person can now sue any licensed firearms dealer who "sells, supplies, delivers, or gives possession or control of a firearm" to anyone under 21 years old. The law allows citizens to sue for a minimum of $10,000 on each weapon involved, as well as attorney fees. This is the exact same amount Texas allows for private citizen bounty hunters to go after innocent women and pregnant people.
Newsom admitted this would be challenged in court, but he counted on it: “Because if there's any principle left whatsoever—and that's an open-ended question with this Supreme Court—there is no way they can deny us the right to move in this direction." Newsom signed the bill into law at Santa Monica College, which was the site of a mass shooting spree. As he had hoped, the law was indeed challenged last September by several gun groups.
Speaking of guns, New York has taken its own shot at SCOTUS. In the midst of our current mass shooting pandemic, Justice Clarence Thomas wrote the decision that rendered almost all gun control laws in America presumptively unconstitutional. For the case of New York State Rifle and Pistol Association v. Bruen, there was a challenge to New York’s restrictions on the carrying of concealed firearms in public.
Like seven other states, New York barred residents from obtaining a concealed carry permit without some elevated need for self-defense. Thomas, joined by the other five conservative justices, invalidated that law as a violation of the Second Amendment. In doing so, he dramatically expanded the scope of the court’s previous gun decisions, which limited the right of self-defense to the home. Incredibly, he wrote this immediately after the Uvalde school shooting.
Clarence Thomas.
But Thomas did not stop there. In striking down New York’s restriction, he also established a new standard for evaluating gun control measures. First, he asked whether a law interferes with rights protected in “the plain text” of the Second Amendment. Thomas explained that since “self-defense” is not in plain writing, any such law is presumptively unconstitutional. The government may only save it from invalidation if it can prove that the regulation “is consistent with this nation’s historical tradition of firearm regulation.”
In other words, courts may no longer rely on empirical evidence in upholding gun control laws. They cannot, for instance, consider the heightened lethality of a particular weapon. So if AR-15s, for example, are slaughtering citizens at an astronomical rate—and they are—they cannot be banned because there is no “historical analogue” from 1791 (when the Second Amendment was ratified) or 1868 (when the 14th Amendment was ratified, applying the Second Amendment to the states).
The logical fallacy here is that this should only apply to weapons in common use in 1791 or 1868, since automatic rifles aren’t in “plain text.” Yet Thomas broke his own rule by claiming his decision applies to “any modern instruments that facilitate armed self-defense.” It is impossible to overstate the consequences of Thomas’ decision. In this single opinion, Thomas has completely abolished the ability of courts to consider the real-world impact of firearms when evaluating limitations on their sale. Any government attempting to impose gun control must now scour historical books for some kind of analogue. Essentially, SCOTUS has ruled that states can no longer protect their citizens from gun violence.
Yet Justice Brett Kavanaugh wrote a concurring opinion that at least attempted to moderate the bizarre ruling. He stated that states can still require licenses for concealed carry permits that may include “a background check, a mental health records check, and training in firearms handling.” And he added that a “variety” of gun regulations remain permissible, though cited only exceedingly modest measures such as “laws forbidding the carrying of firearms in sensitive places.” Thomas’ write-up also used the term “historically sensitive places.” This was the phrase that gun safety advocates seized upon.
Each state has defined certain sensitive areas that are always unsafe for guns, such as schools, hospitals, day care centers, etc. The nonprofit Everytown for Gun Safety helpfully provided resources to states and local jurisdictions to help craft and defend laws that restrict carrying guns in these sensitive places against Second Amendment challenges, which include historical laws, cases, and academic articles. New York saw this as an opportunity to counter what Thomas tried to do, and the state legislature immediately took up work on new gun laws expanding the definition of “historically sensitive places” to protect New Yorkers.
The Empire State first added a ton of venues to their previous list. It is now a crime in New York to bring a gun into any restaurant, hospital, school, entertainment venue, the entire subway system, and all of Times Square. Then New York added a lot of new rules for gun ownership, which include requiring liability insurance, requiring extensive and specialized training in order to obtain a concealed-carry permit, and allowing businesses and private property owners to prohibit concealed weapons on their grounds.
This is exactly what should happen when SCOTUS tries to impose its ideology on the states. States can move a hell of a lot faster than the courts, and they can counteract bad decisions with laws that can blunt the impact of these poorly thought-out ideological attacks on citizens.
California and New York used SCOTUS’ reckless decisions against them. Eventually they will be challenged, and the conservative block will likely attempt to twist itself into pretzels explaining why liberals can’t play within the rules they themselves have set. Yet this will only invite more state legislation, more challenges, and further anger the populace against the judicial theocracy that will make expanding the court ever more likely.
Next year the Supreme Court will hear Moore v. Harper, a case where North Carolina Republicans are asking the court to embrace the right-wing fringe “independent legislature” claim. This would allow the legislature absolute impunity in drawing extreme partisan gerrymanders with no review or consequence: State lawmakers will be allowed to violate their own constitution, the governor of the state will have no veto, and no court will be allowed to interfere. The conservatives on the court have already indicated they will embrace this fringe tactic because they believe it will help Republicans. It assuredly will, but Democrats won’t be powerless.
Eight states currently use commissions for congressional redistricting: Arizona, California, Colorado, Hawaii, Idaho, Michigan, New Jersey, and Washington. Other states, like New York, have provisions in their state constitution barring the redrawing of districts for partisan gain.
Gerrymander protest at SCOTUS.
The problem is that most red states are already gerrymandered for maximum effect. However, Democratic states aren’t. With the exception of Maryland, our states are using independent commissions or have constitutional amendments prohibiting partisan gerrymanders. We tend to use our authority to maintain good governance, whereas Republicans use their authority in red states to increase their power.
If SCOTUS strikes these commissions down and allows free rein for states to gerrymander with no oversight, Democratic legislatures shouldn’t hesitate to gerrymander the hell out of their states to fight for balanced representation.
RELATED STORY: Democrats can gerrymander too, but should they?
The largest red state in the nation, Texas, is already gerrymandered to the hilt. The largest blue state, California, has nonpartisan districts created by an independent commission. This has already cost Democrats four congressional seats this cycle.
Ideally, we want judges and justices to act fairly to protect democracy. Yet in the real world, conservative judges and justices are repeatedly refusing to do that. We therefore need to settle for balance. Doing anything else commits political malfeasance. I hate gerrymandering, but if it’s not uniformly banned across the nation, we have a situation that allows extensive over-representation of Republicans. Don’t get me wrong, when SCOTUS rules on this next year I will be cursing the ruling that I know is coming, but at the very least we will no longer be playing by a different set of rules than the red states.
In another blatant political decision, the conservative majority on the Supreme Court rebuffed a bid by voting rights advocates to block a Republican-backed Florida law mandating that people with past felony convictions pay court fines and fees before being able to register to vote, even if it’s not clear that money is owed.
The constitutional amendment passed overwhelmingly in Florida to reestablish voting rights for ex-felons once their term was complete. Gov. Ron DeSantis usurped the law by saying it needed to enact “implementing language” for the amendment, although it was written to be self-executing for the sole reason to prevent this type of Republican interference.
U.S. District Judge Robert Hinkle ruled that DeSantis imposed an “unconstitutional pay-to-vote system” on citizens who genuinely cannot pay—or even know if anything is owed. SCOTUS, however, unsurprisingly sided with DeSantis and against the expressed will of Florida’s people. The conservative bloc was terrified that more Democrats would be voting, so they simply refused to allow hundreds of thousands of Floridians with felony convictions who served their time to vote. The three liberal justices dissented.
RELATED STORY: Florida's insurance market collapses while DeSantis engages in culture wars
However, in a pure act of intelligent defiance, Florida’s four most populous counties—Miami-Dade, Broward, Palm Beach, and Hillsborough, which all happen to be deep blue counties and make up a third of our state’s population—usurped the usurpation:
Furthermore, Florida’s red counties refused to go along with the “rocket docket” strategy, which might have cost them Republican votes. In the end, thousands of people who never should have had their voting rights taken away in this matter were able to vote. This is yet another example of creative thinking that our side needs to pursue during these times.
At least most blue states knew the attack on abortion was coming. The Biden administration had issued an executive order and a variety of guidance documents attempting to mitigate some of the harms of overturning Roe v. Wade, but it’s the state and city responses that have so far proven the most helpful. California, Oregon, and New York have each allocated tens of millions of dollars to support abortion patients, including those traveling from out of state because their home state has banned the procedure. Multiple states have now passed laws that protect patients and doctors, as well as those who give transportation and care.
RELATED STORY: Justice Samuel Alito basks in applause for killing Roe v. Wade while Americans suffer
There is definitely a real threat as red states are already actively arresting patients. In fact, in Nebraska a mom and daughter were arrested for going out of state to get the procedure after investigators obtained Facebook messages between the two about their plans. New Jersey’s governor was one of the first to sign a law that prevents extradition of any individual who had an abortion but also bars all public agencies from assisting out-of-state criminal investigations into abortion patients. Connecticut not only prevents extradition of patients but allows the victim being targeted to sue for damages.
Several blue states have already enacted legislation to expand abortion access due to coverage through private health plans, expanded state Medicaid funding to provide for abortion services, expand access to training, and to broaden categories of medical professionals who can perform abortions. In Massachusetts, lawmakers have made it legal for its state providers to care for abortion patients in any other state by telehealth. What are you going to do now, Oklahoma?
While they were at it, Massachusetts decided to go the extra step and allow its doctors to also treat patients in hostile states for emergency contraception and gender-affirming care. It also increased abortion access for minors since Massachusetts does not require parental consent or notification for minors aged 16 and 17.
Even in red states, several jurisdictions have deprioritized any enforcement of state abortion crimes, cracked down on deceptive fake clinics, and passed their own regulations to protect abortion access. If a Republican state legislature wants to hunt innocent women, cities and other jurisdictions don’t have to help.
For decades, abortion opponents came up with nonstop creative ways to deny women their constitutional right to have control over their own body. Now that that right has been taken away, we have to be just as creative when it comes to protecting them. So far, the most pushback I’ve seen is from the blue states that refuse to be ruled by a judicial theocracy. Until we can balance out the extremism on the U.S. Supreme Court, they are America’s best hope of protecting our rights and freedoms.
To say things are bad with the Supreme Court is an understatement. It’s not often that conservative Chief Justice John Roberts scolds the conservative majority, but he was forced to do so earlier this year. Barrett and her partisan hacks bypassed regular order to suspend implementation of a unanimous ruling by a panel of three bipartisan lower court judges that would have stopped an illegal gerrymander taking away Black representation in Alabama. It was par for the course for this set of partisan hacks, although even its most naive defenders were shocked when they overturned Roe v. Wade. For the first time ever, the Supreme Court overturned a case extending a constitutional right, as well as broke the principle of "stare decisis," the doctrine of respecting prior decisions. Justice Sonia Sotomayor wondered out loud: “Can this institution survive? The stench that this creates in the public perception that the Constitution and its reading are just political acts?”
Gallup found that only 25% of Americans believe SCOTUS is driven by the U.S. Constitution and the law over politics, which is a historic low. There are things our legislative branch can do besides expanding the high court to make it more balanced, but none of them will work in a divided Congress. The best-case scenario to undermine this new judicial theocracy is to fight back at the state level. Thankfully, blue states like California, New York, Maine, and others have already taken ideological rulings and, with quick legislation, have turned them on their head. It’s an act of defiance that is not only effective, but right now, very necessary.
Religious discrimination
Around the same time Roe v. Wade was overturned, the conservative bloc of SCOTUS also tried to force Maine to give tuition vouchers to religious schools, effectively ending the centuries-old constitutional ban on direct state aid for the teaching of religion. There are currently 29 private schools in Maine participating in a state tuition voucher program, where private schools that meet the state’s criteria can get about $12,000 in taxpayer funding per student. Due to what has been the long-established precedent of separation between church and state, religious institutions were denied state funds. This did not sit well with two very conservative, discriminatory religious schools in Bangor, so they decided to sue. The conservative bloc at SCOTUS ruled in their favor.
It can’t be stated enough how much that case, Carson v. Makin, undermines existing First Amendment law. Once again, Sotomayor expressed her disdain in the dissent: “This court continues to dismantle the wall of separation between church and state that the Framers fought to build.” The two religious schools initially celebrated that they got exactly what they wanted. Yet their celebration didn’t last.
Fifth-grade classroom.
Those schools have policies, naturally, that discriminate against students and staff on a basis of sexual orientation and gender identity. The Maine legislature immediately responded to the ruling by updating a state law that stated all schools receiving state tuition must abide by the Maine Human Rights Act.
This law bans discriminating against someone based on their gender, sexual orientation, gender identity, ethnicity, or disability. This meant that the religious schools involved in the lawsuit wouldn’t be getting the funds after all. They aren’t being denied the money because of religion, which apparently isn’t a thing anymore, but they are being denied because they actively engage in discrimination.
Of course, there could be an easy fix to this: The schools could simply amend their policy to ban discrimination. Simple enough—but it will never happen. For the people who run these schools, Christianity always takes a back seat to being allowed to discriminate against other people. As if right on cue, a spokesman for those schools, Jamison Coppola, said they weren’t changing their pro-discrimination policies. In fact, he argued that discriminating against students isn’t really discriminating after all:
Yeah, it’s not so much discrimination as it is denying entry to certain categories of people they don’t like. That’s … entirely different?
As a result, the Democratic state attorney general said unless the schools are willing to abide by the same anti-discrimination law as every other private school participating in the program, they can forget it:
Maine 1. SCOTUS 0.
Gun violence
Meanwhile, on the other side of the country, there’s California. The Eureka State clapped back after SCOTUS single-handedly overturned what had been a bedrock principle of our legal system: that a person only has the right to pursue legal action if they are personally impacted.
Yet Texas passed an anti-abortion law that allowed random unaffected people the right to sue and collect damages from not just abortion providers, but from patients and even those who drive women to clinics. The point of this was to bankrupt providers and intimidate people into not getting abortions, but this type of outrageous ruling opened the floodgate to legal grifting and vigilantism. Despite being blatantly unconstitutional, the conservatives on SCOTUS put out an unsigned order allowing the Texas law to go into effect.
The law was written specifically to subvert oversight and undermine judicial review, but California figured out quickly that they could use that ruling to their advantage as well. Gov. Gavin Newsom wasted little time fighting back using the exact same language that SCOTUS approved for Texas, but this time, regarding gun manufacturers.
Under the new California law, a random person can now sue any licensed firearms dealer who "sells, supplies, delivers, or gives possession or control of a firearm" to anyone under 21 years old. The law allows citizens to sue for a minimum of $10,000 on each weapon involved, as well as attorney fees. This is the exact same amount Texas allows for private citizen bounty hunters to go after innocent women and pregnant people.
Newsom admitted this would be challenged in court, but he counted on it: “Because if there's any principle left whatsoever—and that's an open-ended question with this Supreme Court—there is no way they can deny us the right to move in this direction." Newsom signed the bill into law at Santa Monica College, which was the site of a mass shooting spree. As he had hoped, the law was indeed challenged last September by several gun groups.
Speaking of guns, New York has taken its own shot at SCOTUS. In the midst of our current mass shooting pandemic, Justice Clarence Thomas wrote the decision that rendered almost all gun control laws in America presumptively unconstitutional. For the case of New York State Rifle and Pistol Association v. Bruen, there was a challenge to New York’s restrictions on the carrying of concealed firearms in public.
Like seven other states, New York barred residents from obtaining a concealed carry permit without some elevated need for self-defense. Thomas, joined by the other five conservative justices, invalidated that law as a violation of the Second Amendment. In doing so, he dramatically expanded the scope of the court’s previous gun decisions, which limited the right of self-defense to the home. Incredibly, he wrote this immediately after the Uvalde school shooting.
Clarence Thomas.
But Thomas did not stop there. In striking down New York’s restriction, he also established a new standard for evaluating gun control measures. First, he asked whether a law interferes with rights protected in “the plain text” of the Second Amendment. Thomas explained that since “self-defense” is not in plain writing, any such law is presumptively unconstitutional. The government may only save it from invalidation if it can prove that the regulation “is consistent with this nation’s historical tradition of firearm regulation.”
In other words, courts may no longer rely on empirical evidence in upholding gun control laws. They cannot, for instance, consider the heightened lethality of a particular weapon. So if AR-15s, for example, are slaughtering citizens at an astronomical rate—and they are—they cannot be banned because there is no “historical analogue” from 1791 (when the Second Amendment was ratified) or 1868 (when the 14th Amendment was ratified, applying the Second Amendment to the states).
The logical fallacy here is that this should only apply to weapons in common use in 1791 or 1868, since automatic rifles aren’t in “plain text.” Yet Thomas broke his own rule by claiming his decision applies to “any modern instruments that facilitate armed self-defense.” It is impossible to overstate the consequences of Thomas’ decision. In this single opinion, Thomas has completely abolished the ability of courts to consider the real-world impact of firearms when evaluating limitations on their sale. Any government attempting to impose gun control must now scour historical books for some kind of analogue. Essentially, SCOTUS has ruled that states can no longer protect their citizens from gun violence.
Yet Justice Brett Kavanaugh wrote a concurring opinion that at least attempted to moderate the bizarre ruling. He stated that states can still require licenses for concealed carry permits that may include “a background check, a mental health records check, and training in firearms handling.” And he added that a “variety” of gun regulations remain permissible, though cited only exceedingly modest measures such as “laws forbidding the carrying of firearms in sensitive places.” Thomas’ write-up also used the term “historically sensitive places.” This was the phrase that gun safety advocates seized upon.
Each state has defined certain sensitive areas that are always unsafe for guns, such as schools, hospitals, day care centers, etc. The nonprofit Everytown for Gun Safety helpfully provided resources to states and local jurisdictions to help craft and defend laws that restrict carrying guns in these sensitive places against Second Amendment challenges, which include historical laws, cases, and academic articles. New York saw this as an opportunity to counter what Thomas tried to do, and the state legislature immediately took up work on new gun laws expanding the definition of “historically sensitive places” to protect New Yorkers.
The Empire State first added a ton of venues to their previous list. It is now a crime in New York to bring a gun into any restaurant, hospital, school, entertainment venue, the entire subway system, and all of Times Square. Then New York added a lot of new rules for gun ownership, which include requiring liability insurance, requiring extensive and specialized training in order to obtain a concealed-carry permit, and allowing businesses and private property owners to prohibit concealed weapons on their grounds.
This is exactly what should happen when SCOTUS tries to impose its ideology on the states. States can move a hell of a lot faster than the courts, and they can counteract bad decisions with laws that can blunt the impact of these poorly thought-out ideological attacks on citizens.
California and New York used SCOTUS’ reckless decisions against them. Eventually they will be challenged, and the conservative block will likely attempt to twist itself into pretzels explaining why liberals can’t play within the rules they themselves have set. Yet this will only invite more state legislation, more challenges, and further anger the populace against the judicial theocracy that will make expanding the court ever more likely.
Assault on democracy: Gerrymandering
Next year the Supreme Court will hear Moore v. Harper, a case where North Carolina Republicans are asking the court to embrace the right-wing fringe “independent legislature” claim. This would allow the legislature absolute impunity in drawing extreme partisan gerrymanders with no review or consequence: State lawmakers will be allowed to violate their own constitution, the governor of the state will have no veto, and no court will be allowed to interfere. The conservatives on the court have already indicated they will embrace this fringe tactic because they believe it will help Republicans. It assuredly will, but Democrats won’t be powerless.
Eight states currently use commissions for congressional redistricting: Arizona, California, Colorado, Hawaii, Idaho, Michigan, New Jersey, and Washington. Other states, like New York, have provisions in their state constitution barring the redrawing of districts for partisan gain.
Gerrymander protest at SCOTUS.
The problem is that most red states are already gerrymandered for maximum effect. However, Democratic states aren’t. With the exception of Maryland, our states are using independent commissions or have constitutional amendments prohibiting partisan gerrymanders. We tend to use our authority to maintain good governance, whereas Republicans use their authority in red states to increase their power.
If SCOTUS strikes these commissions down and allows free rein for states to gerrymander with no oversight, Democratic legislatures shouldn’t hesitate to gerrymander the hell out of their states to fight for balanced representation.
RELATED STORY: Democrats can gerrymander too, but should they?
The largest red state in the nation, Texas, is already gerrymandered to the hilt. The largest blue state, California, has nonpartisan districts created by an independent commission. This has already cost Democrats four congressional seats this cycle.
Ideally, we want judges and justices to act fairly to protect democracy. Yet in the real world, conservative judges and justices are repeatedly refusing to do that. We therefore need to settle for balance. Doing anything else commits political malfeasance. I hate gerrymandering, but if it’s not uniformly banned across the nation, we have a situation that allows extensive over-representation of Republicans. Don’t get me wrong, when SCOTUS rules on this next year I will be cursing the ruling that I know is coming, but at the very least we will no longer be playing by a different set of rules than the red states.
Assault on democracy: Voting rights
In another blatant political decision, the conservative majority on the Supreme Court rebuffed a bid by voting rights advocates to block a Republican-backed Florida law mandating that people with past felony convictions pay court fines and fees before being able to register to vote, even if it’s not clear that money is owed.
The constitutional amendment passed overwhelmingly in Florida to reestablish voting rights for ex-felons once their term was complete. Gov. Ron DeSantis usurped the law by saying it needed to enact “implementing language” for the amendment, although it was written to be self-executing for the sole reason to prevent this type of Republican interference.
U.S. District Judge Robert Hinkle ruled that DeSantis imposed an “unconstitutional pay-to-vote system” on citizens who genuinely cannot pay—or even know if anything is owed. SCOTUS, however, unsurprisingly sided with DeSantis and against the expressed will of Florida’s people. The conservative bloc was terrified that more Democrats would be voting, so they simply refused to allow hundreds of thousands of Floridians with felony convictions who served their time to vote. The three liberal justices dissented.
RELATED STORY: Florida's insurance market collapses while DeSantis engages in culture wars
However, in a pure act of intelligent defiance, Florida’s four most populous counties—Miami-Dade, Broward, Palm Beach, and Hillsborough, which all happen to be deep blue counties and make up a third of our state’s population—usurped the usurpation:
Furthermore, Florida’s red counties refused to go along with the “rocket docket” strategy, which might have cost them Republican votes. In the end, thousands of people who never should have had their voting rights taken away in this matter were able to vote. This is yet another example of creative thinking that our side needs to pursue during these times.
Abortion
At least most blue states knew the attack on abortion was coming. The Biden administration had issued an executive order and a variety of guidance documents attempting to mitigate some of the harms of overturning Roe v. Wade, but it’s the state and city responses that have so far proven the most helpful. California, Oregon, and New York have each allocated tens of millions of dollars to support abortion patients, including those traveling from out of state because their home state has banned the procedure. Multiple states have now passed laws that protect patients and doctors, as well as those who give transportation and care.
RELATED STORY: Justice Samuel Alito basks in applause for killing Roe v. Wade while Americans suffer
There is definitely a real threat as red states are already actively arresting patients. In fact, in Nebraska a mom and daughter were arrested for going out of state to get the procedure after investigators obtained Facebook messages between the two about their plans. New Jersey’s governor was one of the first to sign a law that prevents extradition of any individual who had an abortion but also bars all public agencies from assisting out-of-state criminal investigations into abortion patients. Connecticut not only prevents extradition of patients but allows the victim being targeted to sue for damages.
Several blue states have already enacted legislation to expand abortion access due to coverage through private health plans, expanded state Medicaid funding to provide for abortion services, expand access to training, and to broaden categories of medical professionals who can perform abortions. In Massachusetts, lawmakers have made it legal for its state providers to care for abortion patients in any other state by telehealth. What are you going to do now, Oklahoma?
While they were at it, Massachusetts decided to go the extra step and allow its doctors to also treat patients in hostile states for emergency contraception and gender-affirming care. It also increased abortion access for minors since Massachusetts does not require parental consent or notification for minors aged 16 and 17.
Even in red states, several jurisdictions have deprioritized any enforcement of state abortion crimes, cracked down on deceptive fake clinics, and passed their own regulations to protect abortion access. If a Republican state legislature wants to hunt innocent women, cities and other jurisdictions don’t have to help.
For decades, abortion opponents came up with nonstop creative ways to deny women their constitutional right to have control over their own body. Now that that right has been taken away, we have to be just as creative when it comes to protecting them. So far, the most pushback I’ve seen is from the blue states that refuse to be ruled by a judicial theocracy. Until we can balance out the extremism on the U.S. Supreme Court, they are America’s best hope of protecting our rights and freedoms.