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GOP Laments "Worst Decision Since Dred Scott." Again.

June 29, 2015

If nothing else, the Republican Party is an irony producing machine. In the very week that some GOP leaders reversed course on displaying the Confederate battle flag in the wake of the Charleston slaughter, the party's best and brightest protested that the Supreme Court's decision in the King v. Burwell was its "worst since Dred Scott."
As it turns out, that right-wing list of worst decisions since Scott v. Sanford is a long one. Chief Justice John Roberts's opinion in King that Congress obviously intended for Obamacare subsidies to be available to citizens in all 50 states wasn't even the cause of the GOP's greatest heartburn. Instead, White House hopefuls Mike Huckabee and Rick Santorum, along with the leading lights of the evangelical movement, warned that in response to a judicial blessing for same-sex marriage by the nation's highest court, "We will view any decision by the Supreme Court or any court the same way history views...Dred Scott." And just seven years ago, Republican mouthpieces protested that the Court's defense of habeas corpus rights for Gitmo detainees was "on par with Dred Scott decisions and Plessy v. Ferguson." That each of these Supreme Court rulings did (or in the case of Obergefell v. Hodges, could) expand both the meaning of liberty and the circle of people to whom it applies may have had something to do with it.
Still, it's important to look back at the 1857 Dred Scott case which helped make the Civil War inevitable. In his odious opinion, Chief Justice Roger Taney didn't merely declare Dred Scott must be returned to bondage in Missouri despite having lived as a free man in Illinois for years. "A free negro of the African race, whose ancestors were brought to this country and sold as slaves, "Taney argued, "is not a 'citizen' within the meaning of the Constitution of the United States." And that, the Chief Justice insisted, was as it should be:

They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit.

But for the conservative commentariat, the idea that Americans might be mandated to purchase health insurance along with a retirement pension (Social Security) and old age care (Medicare) was akin to making them slaves for whom "no day ever dawns" because their lives are "all night, forever." When the Court upheld the Obamacare mandate in 2012, Kentucky Senator and 2016 GOP presidential candidate Rand Paul cautioned:

The liberal blogosphere apparently thinks the constitutional debate is over. I wonder whether they would have had that opinion the day after the Dred Scott decision...
Think of how our country would look now had the Supreme Court not changed its view of what is constitutional. Think of 1857, when the court handed down the outrageous Dred Scott decision, which said African Americans were not citizens. Think of the "separate but equal" doctrine in Plessy v. Ferguson, which the court later repudiated in Brown v. Board of Education.

(The Court, of course, didn't "change its view of what is constitutional. It took the Civil War and the 13th Amendment to the Constitution to do that.)
And it wasn't just the likes of World Net Daily and Townhall which respectively proclaimed John Roberts' ruling in NFIB v. Sebelius "today's Dred Scott" and "the worst decision since Dred Scott." In 2013, Washington Post columnist George Will voiced the same sentiment:

"I hear Democrats say, 'The Affordable Care Act is the law,' as though we're supposed to genuflect at that sunburst of insight and move on. Well, the Fugitive Slave Act was the law, separate but equal was the law, lots of things are the law and then we change them."

Three years later, the usual suspects on the right have returned to compare the Court's approval of Obamacare subsidies allowing 6.4 million people in 36 states (most of them solidly red) to Dred Scott once again. As Oliver Willis documented:

Senior editor of the Capital Research Center Matthew Vadum slammed the decision and compared it to a legal confirmation of slavery, calling it "the Roberts court's second Dred Scott decision," "third world bullshit" and "Treason."

For his part, former Arkansas Governor and two-time Republican presidential candidate Mike Huckabee reacted to the 6-3 majority decision in King v. Burwell as "an out-of-control act of judicial tyranny." But that rant pales in comparison to Huckabee's foaming at the mouth over the Court's upcoming decision in the marriage equality cases.
In his USA Today op-ed Thursday about the looming decision in Obergefell v. Hodges, Governor Huckabee rejected the very idea of judicial review settled since Marbury v. Madison in 1803. As for the Supreme Court overturning state bans on same-sex marriage, Huckabee essentially declared that gay Americans have no rights which the straight man was bound to respect:

Can the Supreme Court "decide" this? They cannot. Under our Constitution, we have three, co-equal branches of government. The courts can interpret law but cannot create it. If they declare something "unconstitutional," it still requires congressional funding and executive branch enforcement. The Supreme Court is not the "Supreme Branch," and it is certainly not the Supreme Being. If they can unilaterally make law, and just do whatever they want, then we have judicial tyranny...
Let me be clear: If the Supreme Court abuses the limits of its power and attempts to create a right that doesn't exist in the Constitution, it will be the duty of the president to reject this threat to our religious liberty as "the law of the land." As president, I will never bow down to the false gods of judicial supremacy.

But Huckabee and his ilk aren't just refusing to "bow down to the false gods of judicial supremacy." He and the other signers of the "Marriage Pledge"--a who's who of the extremist social conservative movement--promising civil disobedience as well. As the self-proclaimed guardians of "family values," including Jim Bob and Michele Duggar, warn, they will never comply with a Dred Scott-like ruling for marriage equality:

We will view any decision by the Supreme Court or any court the same way history views the Dred Scott and Buck v. Bell decisions. Our highest respect for the rule of law requires that we not respect an unjust law that directly conflicts with higher law. A decision purporting to redefine marriage flies in the face of the Constitution and is contrary to the natural created order. As people of faith we pledge obedience to our Creator when the State directly conflicts with higher law. We respectfully warn the Supreme Court not to cross this line.

(It is more than a little ironic that the Marriage Pledge cites Dr. Martin Luther King Jr.'s Letter from Birmingham Jail to defend its interpretation of natural law and declares "the Supreme Court was wrong when it denied Dred Scott his rights and said, 'blacks are inferior human beings.'" After all, Huckabee's Southern Baptist Convention was founded in 1845 on that very claim.)
The Republicans' Iowa caucus kingmaker Rep. Steve King echoed Huckabee's parallel between the Supreme Court's denial of rights to African-Americans and its potential extension of them to gay Americans.

"Well, that turned into a civil war - 600,000 people killed to put an end to slavery ­- to sort that mess out."

King hasn't just declared "there's no way I can accept that kind of decision" from the Roberts Court in favor of same-sex couples. He has also filed a bill that would block the Supreme Court from hearing marriage cases altogether.
As it turns out, King proposed a similar remedy after the Supreme Court ruled that terror detainees held at Guantanamo Bay had habeas corpus rights to appeal their detentions. The Justices' 5-4 ruling in the case of Boumediene v. Bush, King argued, was "extra-constitutional."

We might pass a resolution that simply says national security and the Constitution are more important than the built-in bias potentially of the Supreme Court itself, and that they didn't have jurisdiction, and that we take an oath to the Constitution as well, not an oath to their interpretation of it as they amend it on the fly.

If the Supreme Court had actually done as King charged, Boumediene would have been a very bad decision, indeed. (All the Court said in Justice Anthony Kennedy's opinion was that the detainee review process of the 2005 Detainee Treatment Act "falls short of being a constitutionally adequate substitute" because it failed to offer "the fundamental procedural protections of habeas corpus.") But John McCain went even further. It was, McCain announced, "one of the worst decisions in the history of this country." Or as the Republican echo chamber quickly pronounced, "worse than Dred Scott."
Leading the charge was torture enthusiast David Rivkin. The former Justice Department official under the first President Bush and full-time apologist for the second blasted the Supreme Court's 5-4 ruling in favor of Guantanamo Bay detainees. The result, he proclaimed in June 2008, was the equivalent of declaring human beings property and codifying racial segregation:

"But to be honest, and not to be too dramatic, it's one of the worst decisions by the Supreme Court I've ever read, on par with Dred Scott decisions and Plessy v. Ferguson.
The reason for it is not because of its practical implications; they're quite modest. But the sheer ambition, the sheer judicial arrogance that you see here."

That same week, former House Speaker Newt Gingrich followed suit. Appearing on Face the Nation, the Georgian showed that the good times there are not forgotten. Boumediene, he claimed, "could cost us a city." And, he insisted, the Court's 2008 Gitmo decision made the 1857 Dred Scott calamity pale in significance:

Mr. GINGRICH: On the other hand, I will say, the recent Supreme Court decision to turn over to a local district judge decisions of national security and life and death that should be made by the president and the Congress is the most extraordinarily arrogant and destructive decision the Supreme Court has made in its history.
REID: In its history.
Mr. GINGRICH: In its history. Worse than Dred Scott, worse than - because - for this following reason: The court has now knowingly stepped in - and this morning's newspapers say smugglers had actually gotten the design of a nuclear weapon, that we now have the evidence that people out there had a nuclear weapon design. And this court is saying that any random district judge, based on whatever their personal caprice is, whatever their personal ideological bias, can intervene with a terrorist in such a way - and this is something that the Italians will tell you about fighting the mafia.

Of course, Gingrich and Rivkin were not alone among the voices of the right in equating Boumediene with Dred Scott. The Wall Street Journal's Law Blog echoed the editorial page's conclusion that "we can say with confident horror that Americans are likely to die as a result" and asked readers to weigh in on "what you think are the worst Supreme Court decisions in the history of this country."
As they reminded us this week, for Republicans the worst Supreme Court rulings are those which recognize a woman's sovereignty over her own body, ratify laws passed by Congress improving Americans' financial freedom from sickness, enable LGBT Americans like all others to marry the one they love and uphold due process laws. The chicken littles of the right notwithstanding, freedom is not a zero-sum game. Your rights to life, liberty and happiness, to due process of law, and to equal protection of the law do not abrogate mine.
So why does the modern Party of Lincoln, one which has come to represent states' rights, nullification and even secession, trivialize America's original sin of slavery by equating recent Supreme Court decisions to Dred Scott? As I suggested in December 2013 after the Washington Times' Tim Carney lectured President Obama, "If you want someone to listen to you on race, you don't start by likening him to a slaveowner":

That is an odd--and unfortunate--argument for any Republican water carrier to make. After all, today's Party of Lincoln routinely compares the national debt, abortion, gun control, Obamacare--and most every other symbol and policy of President Obama--to slavery.

And to do so while America is still mourning the Beautiful 9 massacred at Emanuel AME Church in Charleston is even more grotesque. As I wrote in a "Memo to Republicans" a year ago, "comparing everything to slavery won't end well for you."


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Jon Perr
Jon Perr is a technology marketing consultant and product strategist who writes about American politics and public policy.

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