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The GOP Coup has happened. We ain't seen nothin' yet. [1]

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Date: 2022-06-27 00:00:00

There they are: the Gang of Six and the Three Irrelevants. BTW, one of those six is married to an active insurrectionist...

No, not the coup Trump and the Republican Party attempted on January 6, 2021. (Which is still ongoing. They lost that battle but their war on democracy is not over.) It’s been called autogolpe for those of a pedantic bent, where a legitimately elected leader tries illegal means to stay in power.

The coup I’m referring to is the Judicial Coup . It’s the one the Federalist Society has been quietly pursuing for decades: the capture of the judiciary and the Supreme Court. Granted it would not have been possible this quickly without Trump and McConnell getting three seats on the Court, but that has been their aim all along.

People have yet to grasp that control of the Supreme Court effectively trumps the Executive Branch and the Legislative Branch. Six unelected Justices with lifetime appointments and zero accountability for their actions are now calling the shots. Established law is now out; precedents and historic practices are irrelevant.

Guns and abortion have gabbed the headlines, but it’s also about tearing down the wall between church and state. (See the latest: Supreme Court Sides With Coach Over Prayers on 50-Yard Line; Charlie Pierce has chapter and verse on this.) I could go into a lot of detail, cite specific examples, but I’ll cut right to the chase.

The Gang of Six are now in position to roll back anything they and the people behind them don’t like, all the way back to the New Deal and beyond. The Federalist Society has filled the judiciary with hand-picked moles. Republican legislatures are drafting laws and groups are funding targeted lawsuits. Between them this strategy is designed to put specific items in front of the Supreme Court for judicial review. And that’s where the joker in the deck appears.

The practical effect will be rule from the bench.

Republicans have been trying to repeal ObamaCare since it was passed; it barely survived a Court challenge. With the new Court, all bets are off. And that’s true for anything: Civil Rights, Social Security, you name it.

It’s not just about contraception for example, re the Griswold decision; it’s about a more fundamental right — the right to privacy. As Charlie Pierce warns:

..can folks please stop referring to the decision in Griswold v. Connecticut as having been "about contraception"? Griswold confirmed the existence of a right to privacy within the Constitution. That's everything. It's about marriage. It's about sex. It's about what we read. It's about how we communicate with each other. It's about the limits to search and seizure. It's about medical records and genetic information. It's about libraries and the internet. It’s about what we learn and how we learn it. It’s all tied in together in a fervent prayer to keep us all safe from, as Thomas Jefferson put it, “every form of tyranny over the mind of man.” As Supreme Court Justice Arthur Goldberg put it in his Griswold concurrence: "...as the Ninth Amendment expressly recognizes, there are fundamental personal rights such as this one, which are protected from abridgment by the Government though not specifically mentioned in the Constitution.”

emphasis added

That line is critical. The ‘strict consitutionalists’ claim that nothing which is not specifically mentioned in the constitution can be considered to be a legal right unless formally passed into law by Congress. This theory is going to be used to throw out a lot of things that have been considered established law for decades.

Other things are up for grabs as well, things like the delegation principle where Congress allows Federal agencies to implement legislation by drafting regulations to carry out the will of Congress on the basis of their particular expertise and other resources.

The non-delegation doctrine holds that agencies can only do what Congress specifies in the authorizing legislation, meaning for example that the EPA cannot regulate CO2 as a pollutant because Congress did not specifically include it in the relevant laws. The constitution forbids Congress from delegating this authority to the Executive branch in this view.

(See Chevron deference. Also, compare and contrast with Republican anti-abortion laws which delegate enforcement to vigilantes...)

Any new program Biden and the Democrats manage to get through Congress, any executive action by the President, will face judicial review at some point. Well-funded GOP lawyers are standing by to ensure that.

Now that the Gang of Six have made clear that nothing is set in stone, that 50 years of a right can be swept away with a few words and some bogus legal theories, the Rule of Law is going to become Calvinball. There is an entire apparatus of think tanks, foundations, and wealthy/obsessed cranks working to promulgate whatever legal theories they need to back up their agenda — and they now have a Supreme Court majority ready to play Calvinball with them.

AND…

Not least of the problems with the Gang of Six on the Supreme Court is what else they’ve accomplished.

They have changed the subject away from what the January 6 committee has been showing us: how the Republican Party backed Trump in a wide-ranging illegal conspiracy to overturn the election, and that they are still at work.

How can we fix this?

I’m going to skip a lot of discussion and proposals to cut to the chase again. We need to do two things:

One is to go to the polls in overwhelming numbers and drive Republicans from power. (One of the reasons why Republican legislatures in the states are working to remove control of elections and results from non-partisan officials, among other things.)

Two is to get Democratic leadership (and the media) to recognize that the old rules are gone and it is going to take drastic steps to overhaul our collapsing political system. Nothing should be off the table: court packing, term limits for Supreme Court Justices, the end of the filibuster, the electoral college, and the Senate as we know it.

(And they damn well better start connecting dots loudly in public to drive home the message:

The Republican Party is a threat to America that can’t be ignored any longer.

The Supreme Court has been politicized and is no longer legitimate.

I don’t know why Democratic Leaders are afraid to say this; the Republican Party and their media have never shied away from it when the shoe is on the other foot.)

For those who have seen “Top Gun: Maverick”, this is akin to the mission objectives summarized in the film as Miracle #1 and Miracle #2. No margin for error, no way to eliminate risk.

I don’t know about you, but I’m ready for some miracles. I’m getting tired of waiting. I’m getting tired of endless fund-raising appeals that accomplish… what... in the face of billionaires buying their hand-picked candidates and legislation. I’m tired of seeing the geriatric leadership of the Democratic party that can’t seem to recognize how much has changed.

I am tired of feeling outgunned and silenced by a brutal opposition openly descending into authoritarianism — and all in the media and all the people who refuse to see it or try to both-sides it away. I’m tired of the common wisdom that only focuses on when Democrats fail, that the Left is a trying to go too far, but IOKIYAR and GOP deviancy has been defined so far down it’s practically invisible.

The world is made by the people who show up for the job.

The hour is late. We must show up. Please feel free to comment on what you are doing to make Miracles 1 and 2 happen, and offer suggestions. We have an obvious first target — we need to make the midterms a referendum on the Court and the GOP. If we can do that, we can get some forward momentum going.

The Republican Party has spent decades with incredible focus to put us where we are now, on the brink. We need to have the same unyielding determination to reject them and all their works to make this the country it needs to be.

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[1] Url: https://www.dailykos.com/stories/2022/6/27/2106796/-The-GOP-Coup-has-happened-We-ain-t-seen-nothin-yet

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