Today the court announced that cities and states can enforce bans on homeless people sleeping outdoors.  How will they do that?  By sending them to jail?  Homeless people usually have no money, so they can’t pay fines.  This ultra-conservative court likes to boast that it is inspired by “originalism” –- that is, reinforcing opinions in the original Constitution of 1789.  I’ve written elsewhere about how I believe this approach contradicts that of the men who wrote the Constitution.  They included the power to amend, since they knew that they couldn’t predict the future.  They also stated in the Ninth Amendment that all powers not mentioned in the Constitution belonged to the people.

     What this infamous court has done is bring back policies in effect until the early 19th century: debtor’s prisons.  Legal policy then believed in locking up people who couldn’t pay their bills.  Eventually, it was realized that this law was counter-productive: how could prisoners ever pay back money they owed?  One the many 19th-century critics who worked to abolish this heartless policy was Charles Dickens, whose own father had been in debtor’s prison.  This policy was considered heartless two hundred years ago.  Today it is inexplicably and needlessly cruel as well as useless.

     The second dreadful decision that came down this morning reversed 40 years of established environmental and healthcare policy, which allowed the government to intervene in unclear or questionable circumstances.  For the second time in recent years this supposedly “conservative” court reversed the established legal doctrine of “stare decisis” – i.e. “let the previous decision stand” unless there is an overwhelming need to reverse it.  The first time was two years ago when this court overturned Roe v. Wade, established for fifty years.  Shame on the six justices who voted for these dreadful decisions!

Here is my section of an event at Brooklyn College on October 18th.

The death of Supreme Court Justice Ruth Bader Ginsberg was both timely and untimely.  Timely, because she was 87 and had been battling severe cancer for many years, and untimely because she died while Trump was in office.  Breaking with their own statements when Obama was president and Republicans prevented even a hearing of his candidate for a year, the party decided to push through a new candidate for the court in a few short weeks.

         Given this situation, what can Democrats and their supporters do?  The most important action, I believe, is to try and convince some Republican senators not to go ahead with their party’s maneuver to control the court.  Here are the phone numbers of five Republican senators who might support a delay.  All of them go to voice mail, so if you call, you do not need to talk to anyone.

• For Sen. Susan Collins of Maine, dial 202/224-2523, ext. 1

• For Sen. Corey Gardner of Colorado, dial 202/224-5941, ext. 1

• For Sen. Martha McSally of Arizona, dial 202/224-2235, which will go directly to voicemail

• For Sen. Lisa Murkowski of Alaska, dial 202/224-6665, ext. 3

• For Sen. Mitt Romney of Utah, dial 202/224-5251, ext. 1        

         I think it is worth phoning these senators even if they have already announced that they will support Mitch McConnell’s attempt to rush through an appointment.  As McConnell himself declared, this issue is political, and if these senators receive enough calls asking them to desist, they might.

         Finally, even if this new appointment goes through, there is a powerful remedy.  In this nation the Supreme Court does not make laws, except in constitutional issues.  Congress does.  If, for instance, the new conservative court out laws abortion, congress can pass a law making it legal.  So I believe it is now even more important for Democrats to vote in large numbers, hopefully to give Biden a mandate as well as control of both the house and the senate.  It is the only force that can stop the degradation of this nation which Trump and his corrupt attorney general, Barr, have engineered in recent years.

Suprem

Masculine Privilege

         When the U.S. Senate rammed through the confirmation of Judge Brett Kavanaugh last weekend, it perpetuated anti-female biases as old as Western civilization.  “The male is by nature superior, and the female inferior,” wrote the Greek philosopher Aristotle, whose teachings supported laws for centuries, “The one rules and the other is ruled.”  The Bible also preached male superiority.  Under Jewish and later, Christian, teachings women, children, and slaves were not allowed to testify in court because they had “flighty minds” and women were routinely valued lower than men. 

         These prejudices shaped views on rape for millennia.  The accusation by the woman known only as “Potiphar’s wife” that the Hebrew prophet Joseph had raped her remained a symbol of falsehood for ages and was frequently depicted by artists like Rembrandt.  The fear of such an “uncorroborated” rape charge and the consequent protection of men constituted law until recently.  Up to 1972, a woman had to produce two witnesses to the act to prove rape in New York State, as well as show defensive wounds on her body.

         I and many others found Dr. Christine Blasey Ford’s assertion of sexual harassment against Brett Kavanaugh completely convincing.  She had done her best not to make this charge public: by writing Pres. Trump directly when he put Kavanaugh on his short list of nominees, by contacting her congressional representative and asking her to keep the news private, and then by writing Sen. Feinstein and making the same request.  When questioned, she did not seem at all partisan.  She admitted she was fearful and emotional, but kept those feelings under control.

         All this was used against her.  Why had she not come forward sooner?  (In my rape crisis program, we had a pamphlet called “I Never Told Anyone,” because this practice was so common.)  Why had she come forward at all?  How dare she “smear” this exemplary candidate?

         The candidate himself used all the tactics unavailable to a woman like Blasey Ford, but at his disposal as a straight man.  He showed extreme emotion, gulping and panting, crying and screaming.  He accused his accusers of being partisan “destroyers.”  He insisted that nothing could be corroborated.  When questions did not suit him, he turned them back on his questioners.  These tactics worked.  The eleven white male Republican senators on the committee instantly took his side.

         I have not used the word “white” before because of course this scenario occurred earlier, when the black Supreme Court candidate, Clarence Thomas, was accused of sexual harassment by a black law professor, Anita Hill.  Thomas also invoked male privilege, while adding the race card, charging that believing Hill would constitute a “high-tech lynching.” His tactic worked as well as Kavanaugh’s twenty-seven years later. 

Has anything changed since then?  Yes, there are more women in public office.  Yes, women have some more rights.  But still, as Sen. Patrick Leahy proclaimed on October 6, after declaring that he had voted in favor of many Republican judges, Kavanaugh “has been relentlessly dishonest under oath…I have never seen a nominee so casually willing to evade or deny the truth in service of his own raw ambition.”

         Complaining, as many others have, that only ten percent of Kavanaugh’s judicial record had been made available to the Judiciary Committee by its Republican majority, Leahy went on to denounce the “sham” FBI investigation.  Limited by Pres. Trump to last only one week and to question very few persons, it “fell short by design.”  Kavanaugh was voted in 50-48, almost completely on party lines.  The vote was marked by unprecedented demonstrations against it.

         Events like this have consequences, since they encourage those who share the same convictions.  Trump empowered Kavanaugh; Kavanaugh empowered, among others, an associate professor at Brooklyn College to write in his public blog, “If someone did not commit sexual assault in high school, then he is not a member of the male sex….The Democrats have become a party of tutu-wearing pansies, sissies who lack virility, a sense of decency or the masculine judgment that has characterized the greatest civilizations: classical Athens, republican Rome, and the nineteenth century United States.”  What did all three of these societies have in common?  They owned slaves and subordinated women.

         What can we do now?  By 1853, the eminent Quaker Lucretia Mott had fought for decades to end slavery and demand the vote for women. She declared, “Any great change must expect opposition, because it shakes the very foundation of privilege.”  Mott lived to see enslaved peoples’ emancipation, but died almost forty years before women’s suffrage became legal in the United States.  Like her, we must keep on keeping on. The most important effort now is to get out the Democratic vote on November 6.

For me, it began during the presidential campaign when Trump mocked and imitated a disabled reporter. I thought, “How could anyone vote for him after this?” It continued during the debates, when he stalked Hillary, tromping around the stage and looming over her. Although she was a weak candidate, I was shocked when he won and depressed that so many Americans voted for him. Yet again, I deplored that the Electoral College gave the election to someone who had lost the popular vote.

Crazy Town continued during one of his early cabinet meetings, when everyone in the room, led by Mike Pence, groveled and tried to outdo each other in sycophantic praise for Trump. I had never witnessed anything like it. Despite this, seemingly endless firings and replacements followed over the next two years, with one hireling after another running afoul of an irrational power freak. As George Packer wrote in the September 24th New Yorker, “A coarse and feckless viciousness is the operating procedure of his White House, and the poison spreads to everyone. Only snakes and sycophants survive.”

My dismay has increased as it has become clear that the Republican Party, in both the House and the Senate, has followed this corrupt lead, betraying its long-held values. A balanced budget? Let the deficit sky-rocket as we give more tax breaks to the wealthiest among us. Suspicion of Russia? Let it disappear as the president meets privately with Putin and praises him to the point that many of us consider treasonous. And now, the Supreme Court. The hypocritical claim of “Let the people decide” used in an unprecedented blocking of Pres. Obama’s right to appoint a justice, has now been trashed. Attempting to rush Brett Kavanaugh’s confirmation through before the November elections, the scant Republican majority in the Senate allowed less than 10% of his papers released, dismissed any objections to his evasive answers, and now seems not to have done its basic homework. Three and perhaps four women have come forward claiming he sexually harassed them. All have asked for FBI investigations of their charges, something they would be extremely unlikely to do if they were just trying to “smear” him, as he claims.

Do I believe them? You bet I do. I worked as a rape crisis counselor at St. Vincent’s Hospital in Greenwich Village for fourteen years. In all that time, we had only one false claimant — a con-woman who went from city to city and was easily caught. We even had a pamphlet titled “I Never Told Anyone,” since this was so common. Look at the harassment Christine Blasey Ford, the first accuser, has experienced: death threats to her and her family, hacking of her email, etc., etc. It remains far more difficult for women to come forward with charges than for men to deny them.

And now the eleven Republican men on the Judiciary Committee are pondering whether to question her themselves or to hire a female attorney to present a better picture. She of course is not allowed to have her attorney present, nor to bring in corroborating witnesses. The echoes of the Senate’s base treatment of Anita Hill many years ago are deafening. And the context for all this is Trump’s own boasts about “pussy grabbing,” his infidelities, and his own sexual harassment of women. If you elect a clown, expect a circus.

     In 1856 and again in 1857, the Supreme Court heard arguments about an enslaved man brought by his owner to a free state.  He claimed his freedom, but the court ruled that African-Americans could never be citizens and therefore had no right to the protection of law.  Dred Scott was deemed a "piece of property" and returned to his supposed owner in the South.

     A few years later, the Civil War overturned this dreadful ruling.  I think it's important to keep historical passages like this in mind, as we enter an era when the court may rule against important civil rights gain of the last half century.  Justices can also change their opinions when they are on the court.  Hugo Black, a member of the Ku Klux Klan and an opponent of equal rights for blacks in his early years, evolved into a staunch defender of civil liberties, even though he did justify the internment of Japanese-American citizens during World War II.  Chief Justice John Roberts recently cited this case, saying that it was nothing like the third Muslim ban, which his court recently upheld.  I, and many others, think it was, since it blocks large groups based on race, religion, or nationality.  But situations and justices can change.

     In addition, the Supreme Court does not necessarily have the final word.  Years ago, I argued with an Englishman who declared that we "had government by court."  The people are the basis of our government.  If Congress passes a law against a Supreme Court decision, the law prevails unless the Court can and does declare it unconstitutional.  It's important to remember this in difficult times.

     And if we think our times are difficult, let's remember earlier eras.  Ernestine Rose continued to fight against slavery before and after the Dred Scott decision.  She succeeded in that fight, but did not live long enough to see women get the right to vote.  In this regard, I highly recommend a wonderful anthology which appeared last year: We The Resilient: Wisdom for Americans from Women Born Before Suffrage.  The editors Sarah Bunin Benor and Tom Fields-Meyer interviewed 78 women from all races, ethnicities and classes about their lives, first before the 2016 election, and then after.  They all recommended persisting in your ideals.  They had lived through the Great Depression, the second world war, McCarthyism, etc. and they maintained that important struggles can be won if we don't give up.  They advise courage, hope, humor, keeping on, and knowing that conditions will change.  They provide inspiration for today to continue working for our beliefs.