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David Silver

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It’s time that we all woke up to the very dangerous and scary threat that the extreme activist judges on the Supreme Court are posing for our democracy. These are judges that have a political goal in mind and structure their legal arguments to achieve that goal, no matter what legal precedent, legal logic, or legal consistency dictates. We saw that happen in Bush v. Gore. Then came Citizens United, the decision that extended to corporations for the first time the right to spend as much money as they wish in candidate elections. But in the last three weeks, now armed with a supermajority on the Supreme Court, the goal of unraveling and dismantling our democracy in favor of corporate greed, religious belief and minority rule has become blatant.

Last month, the court overruled almost 100 years of precedent by holding that the United States Congress could not delegate authority on “major questions” to agencies in the executive branch. At stake were EPA regulations that would push fossil fuel producers toward clean energy in order to combat climate change. The majority of the Court used the “major questions” doctrine for the first time ever to rule that the EPA did not have the authority to regulate business practices that pollute the environment and contribute to climate change. The concept that Congress cannot delegate authority to administrative agencies was rejected by none other than the conservative Justice Scalia in 2001 decision. The point of yesterday’s ruling is clearly to hamstring the federal government from regulating businesses. This ruling prevents the EPA from adequately dealing with climate change through regulation, but the ruling will have far-reaching effects because it will require Congress to enact specific legislation detailing the precise authority it is delegating to each administrative agency. As we’ve all seen, the filibuster allows the minority party, in this case the Republicans, to stymie any legislation to counter this ruling.

Now before the Court is Moore v. Harper, a case about whether state legislatures alone have the power to set election rules even if their laws violate state constitutions. This would allow state legislators to overturn and nullify the elections in their state if they so choose. This is terrifying and we should all be very scared. Of course all this comes on the heels of the court using so-called “originalist” theory to take away the constitutional right for women to control their decision on whether or not to have an abortion, a right that has existed for 50 years and repeatedly affirmed by the Court.

I’m very frustrated and afraid by the idea that we have to live with a Supreme Court that is corrupted by intellectually dishonest political hacks that claim to be guided by “originalist” philosophy, but only when it suits their political and religious goals. For example, the drafters of the constitution were very keen on the separation of church and state, but that doesn’t seem to bother the Supreme Court when it decides that a public high school football coach can conduct a kneeling prayer on the field before a football game or that a state cannot refuse to fund private religious schools. Yesterday‘s decision using the “major question“ theory to emasculate the EPA was something these radical justices made up out of whole cloth; there is nothing in the original constitution that comes even close to this.

Well, you originalists, our Declaration of Independence reiterates that government derives its authority based on the consent of the governed, and you’ve lost my consent and the consent of probably a majority of the governed. The Declaration of Independence also states that when any form of government subverts the people’s unalienable rights, it is the right of the people to alter or abolish it. I believe in the rule of law. But I also believe that for the rule law to remain legitimate it must, in some manner, be responsive to the evolution of sensibilities and mores of our society.

It’s time that our leadership in Congress and the president publicly call out the Supreme Court for what it is, a group of radical subversive activist judges that are undermining our democracy. The president should publicly announce that the court has lost its legitimacy because of its clear partisan and religious bias and should explore the possibility of instituting impeachment proceedings, even if they don’t succeed — and probably won’t — it would be an important message to send. It would be humiliating to those Justices and they deserve humiliation. The House of Representatives should hold a vote of “no confidence” regarding the Supreme Court, a symbolic but powerful message. The Democrats should make expanding the Supreme Court part of the Democratic platform.

It’s time the Democrats take actions that reflect the dire nature of this situation. The Democrats have to stop taking the highroad. The highroad leads to January 6, Neil Gorsuch and Amy Coney Barrett.

David F. Silver is an attorney in Bennington. The opinions expressed by columnists do not necessarily reflect the views of Vermont News & Media.