The Supermajority on the Supreme Court is the Overarching Reason to Vote for President Biden in 2024*

R.VanWagoner
10 min readMay 27, 2024
Photo by Bernd 📷 Dittrich on Unsplash

The Supermajority carves privacy and individual autonomy out of Fourteenth Amendment “liberty,” starting with reproductive rights.

In Dobbs, the supermajority on the Supreme Court began the process of eviscerating the constitutional doctrine that solidifies individual rights to make “certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and belief,” rights that have “been woven into the societal fabric” for the majority if not entirety of most Americans’ lives.

Before the high court terminated 50 years of reproductive autonomy from government interference by overturning Roe with Dobbs, Trump and his nominees to the Supreme Court gave us reason to disbelieve the sworn testimony the latter gave to the Senate and American people that Roe was settled law. In Dobbs, we see the demise of substantive due process, the constitutional doctrine that “affords protection to personal decisions relating to marriage, procreation, contraception, family relationships, child-rearing, and education.” With the supermajority on the court, “[t]hese matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, . . . central to liberty” are now suspect, and may no longer be “protected by the Fourteenth Amendment. . . . [T]he heart of liberty” no longer assures “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of life.” Justice Antony Kennedy, Planned Parenthood of Southeastern Pennsylvania v. Casey.

The supermajority on the court now threatens significant additional rights of individual autonomy from government intrusion including rights to contraception (which Trump recently called into question), interracial marriage, sexual activity between consenting adults, same-sex marriage, and the right of parents to direct the custody, upbringing, education, care, and control of their children. If Justice Thomas had his way, the court would revisit and reverse every substantive due process/right to privacy case from Griswold v. Connecticut, decided in 1965, forward. (The Supreme Court in Griswold held that a married couple had the constitutional right to privacy in the use of contraception without interference by the state.)

Watercolor, Richard J Van Wagoner, Courtesy of Robert H. and Cheri Van Wagoner**

The supermajority seizes power from the President for itself, undermining the health, safety, and welfare of the American people.

Conservatives hate activist judges, except when they don’t. With its “major questions doctrine,” the conservative majority on the court has accelerated the dismantling of existing legislation and its enforcement and is materially changing the power structure that has existed for decades, forcing even more gridlock in Congress, and threatening the health, safety, and welfare of the American public. The federal government’s ability to pass legislation and the executive to enforce it — to the satisfaction of an activist conservative supermajority — is being seriously impaired if not rendered impossible.

The “major questions doctrine” purports to be a principle of statutory interpretation applied to U.S. administrative law cases in which the court presumes Congress does not delegate to executive agencies matters the court chooses to label of major political or economic significance. If the supermajority finds a federal agency is enforcing a regulation it does not like, the court need only conclude that the subject of the enforcement falls within a “major question” the Congress never delegated to the executive agency to invalidate executive enforcement.

Congress creates most federal agencies in the United States and authorizes them to promulgate and enforce regulations to carry out congressionally defined policy enactments. Most such agencies are part of the executive branch, the body that enforces the laws Congress makes. Given that federal agencies are responsible for overseeing legal, technical, industrial, and scientific policies, they employ well educated and highly skilled personnel in specialized disciplines. Many are world-renown scholars and experts.

Congress, quite obviously, doesn’t have the expertise, time, patience, or capacity to understand and fill in the details necessary to carry out its policy enactments which are integral to helping assure public health, safety, and welfare. The only requirements for membership in the House, after all, are that the candidate is 25 years of age or older, has been a U.S. citizen for at least seven years, and lives in the state s/he wishes to represent. For membership in the Senate, the candidate must be 30 years of age or older, a U.S. citizen for at least nine years, and live in the state s/he wishes to represent.

“[S]ince President Joe Biden took office, the Supreme Court has effectively seized control over federal housing policy, decided which workers must be vaccinated against Covid-19, stripped the EPA of much of its power to fight climate change, and rewritten a federal law permitting the secretary of education to modify or forgive student loans.

“This major questions doctrine, at least as it is understood by the Court’s current majority, emerged almost from thin air in the past several years. And it has been wielded almost exclusively by Republican-appointed justices to invalidate policies created by a Democratic administration. This doctrine is mentioned nowhere in the Constitution. Nor is it mentioned in any federal statute. It appears to have been completely made up by justices who want to wield outsize control over federal policy.

“And the implications of this doctrine are breathtaking. In practice, the major questions doctrine makes the Supreme Court the final word on any policy question that Congress has delegated to an executive branch agency — effectively giving the unelected justices the power to override both elected branches of the federal government.”

How the Supreme Court put itself in charge of the executive branch.

Watercolor, Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**

The supermajority perpetuates and preserves minority rule in the United States by, among others, greenlighting race-based gerrymandering.

A couple of weeks ago, I decided to resign my membership in the Supreme Court Bar. Since then, news about the Article III branch of government has worsened. Yes, reporting on Justice Alito’s overt political and extreme partisan behavior, combined with the previous news that he accepted lavish gifts from persons with matters before the court, which he failed to report in violation of federal law, further confirmed what we knew and strongly suspected of him from his writings, speeches, sermons, and affiliations outside the court. As Jamelle Bouie said, “There is no real antecedent in American history to the situation surrounding Justice Samuel Alito.” The Alito Family’s ‘Appeal to Heaven.’

Parenthetically, I first mistook the “Appeal to Heaven” flag (“The Flag”) he flew outside his New Jersey home as a symbol of Evergreen International, Inc., organized in Salt Lake City, Utah, in 1987, with close ties to the Mormon church. Its stated mission was to help “people who want to diminish same-sex attractions and overcome homosexual behavior.” It closed in 2014.

We are learning The Flag’s prominence at the Jan. 6 insurrection as a symbol of Christian nationalism and know Christian nationalism’s central role in planning and carrying out the insurrection. We are learning of more of its adherents, including Supreme Court Justice Alito, Federalist Society head Leonard Leo, and House Speaker Michael Johnson.

A theme common to Alito’s Christian nationalist belief system and a supermajority decision released Thursday May 23, 2023, Alexander v. South Carolina State Conference of the NAACP, according to Elie Mystal, is this: only qualified Americans, the white ones, should be afforded full rights and responsibilities of citizenship, including the right to an undiluted vote, and a voice worthy of consideration. I take it a step further based on Alito’s manifest white Christian nationalism: unqualified are those who support abortion, same-sex marriage, transgender rights, and keeping religion out of government, the woke liberals, secularists, humanists, and atheists, and people of lesser races, ethnicities, and religions.

The U.S. Constitution allows a minority of American voters to elect the president through the Electoral College, and a minority of Americans through U.S. senators to confirm justices the president nominates to the Supreme Court. This flawed system also allows federal and state legislatures to perpetuate minority rule through political gerrymandering which Supreme Court justices — nominated by a popular-vote-losing president and confirmed by senators representing a minority of Americans — find to be perfectly consistent with the Constitution.

This week, the supermajority on the Supreme Court once again put its race-based, anti-democratic jurisprudence on full display. In its 2013 decision in Shelby County v. Holder, the court gutted Section 5 of the landmark Voting Rights Act of 1965, which required southern states and counties with histories of discriminatory barriers to voting to pre-clear proposed legislation affecting elections with the U.S. Attorney General or Federal District Court in Washington D.C. Further extending its holding in Shelby County, the supermajority this week issued a decision that will perpetuate minority rule in this country by making challenges to race-based gerrymandering near impossible.

In Alexander, the South Carolina legislature redrew congressional districts based on the 2020 Census. The redistricting dispersed 200,000 Black voters among new districts, “stripping from [the First Congressional District] much of Charleston and ending the city’s 120-year history as the anchor for the district.” The NAACP claimed the map constituted unconstitutional racial gerrymandering. Supreme Court rules on South Carolina map case. After a nine-day evidentiary hearing, the three-judge federal district court panel agreed with the NAACP, finding the facts overwhelmingly established the map was an unconstitutional race-based gerrymander.

In a 6–3 majority decision authored by Justice Alito, the supermajority overturned the lower court’s fact-intensive decision, saying the inferior court’s factual findings were clearly erroneous and doing what appellate courts don’t typically do: it reexamined the facts and reached “diametrically different conclusions.” Relying on a 5–4 decision from 2019 that held partisan gerrymandering — as compared to racial gerrymandering — was beyond the reach of federal courts, Alito’s supermajority labeled the redistricting political gerrymandering, and therefore legal, even though Black and white voters are and historically have been highly polarized in the South, their voting patterns strongly correlate with race, the evidence overwhelmingly established the gerrymander was race-based, and the landmark Voting Rights Act of 1965 passed to prevent exactly what the supermajority allowed South Carolina to do — dilute the Black vote. If some southern legislator claims race wasn’t a factor in redrawing the map, that’s good enough for the court. Supreme Court dismantles racial gerrymandering precedent.

As bad as Alito’s decision was in undermining a series of precedents that “guarded against racist redistricting, granting state legislatures sweeping new authority to sort their residents between districts on the basis of skin color,” the majority did not go far enough for Justice Thomas who wrote a solo concurrence. He argued the court “should overrule every precedent that limits gerrymandering — including landmark cases establishing ‘one person one vote’ — because it has no constitutional power to redraw maps in the first place. And he places much of the blame for the court’s allegedly illegitimate intrusion into redistricting on a surprising culprit: Brown v. Board of Education.” Clarence Thomas Makes a Full-Throated Case for Racial Gerrymandering.

Justice Kagan concluded her scathing dissent in Alexander with what every reasonable court observer knows: the majority justices simply found a case through which they could distort the facts and the law to achieve the result they were prepared to enact:

“In every way, the majority today stacks the deck against the Challengers. They must lose, the majority says, because the State had a ‘possible’ story to tell ‘about not considering race’ — even if the opposite story was the more credible. And they must lose again, the majority says, because they failed to offer a particular form of proof — which they did not know would be relevant and which this Court recently told plaintiffs was not required. It does not matter that the Challengers offered extensive evidence, including expert statistical analyses, that the State’s districting plan was the product of racial sorting. It does not matter that the State, by way of response, offered little more than strained and awkward denials. It does not matter that three judges — entitled to respect for their factual findings — thought that those denials were not believable, and did not put a dent in the plaintiffs’ proof. When racial classifications in voting are at issue, the majority says, every doubt must be resolved in favor of the State, lest (heaven forfend) it be ‘accus[ed]’ of ‘offensive and demeaning’ conduct.

“What a message to send to state legislators and mapmakers about racial gerrymandering. For reasons I’ve addressed, those actors will often have an incentive to use race as a proxy to achieve partisan ends. And occasionally they might want to straight-up suppress the electoral influence of minority voters. Go right ahead, this Court says to States today. Go ahead, though you have no recognized justification for using race, such as to comply with statutes ensuring equal voting rights. Go ahead, though you are (at best) using race as a short-cut to bring about partisan gains — to elect more Republicans in one case, more Democrats in another. It will be easy enough to cover your tracks in the end: Just raise a ‘possibility’ of non-race-based decision-making, and it will be ‘dispositive.’ And so this ‘odious’ practice of sorting citizens, built on racial generalizations and exploiting racial divisions, will continue. In the electoral sphere especially, where ‘ugly patterns of pervasive racial discrimination’ have so long governed, we should demand better — of ourselves, of our political representatives, and most of all of this Court. Respectfully, I dissent.”

Dissent at 33–34.

R.VanWagoner https://medium.com/@richardvanwagoner publishes. https://richardvanwagoner.medium.com/subscribe

*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to https://medium.com/@richardvanwagoner. Rob’s second novel, a beautifully written suspense drama that takes place in Utah, Wyoming, and Norway, dropped on November 17, 2020. Available on Amazon, Barnes and Noble, Apple Bookstore and your favorite local bookshop, this novel, The Contortionists, which Rob himself narrates for the audio version, is a psychological page-turner about a missing child in a predominantly Mormon community. I have read the novel and listened to the audio version twice. It is a literary masterpiece. The Contortionists is not, however, for the faint of heart.

**Richard J Van Wagoner is my father. His list of honors, awards, and professional associations is extensive. He was Professor Emeritus (Painting and Drawing), Weber State University, having served three Appointments as Chair of the Department of Visual Arts there. He guest-lectured and instructed at many universities and juried numerous shows and exhibitions. He was invited to submit his work as part of many shows and exhibitions, and his work was exhibited in many traveling shows domestically and internationally. My daughter Angela Van Wagoner, a professional photographer, photographed more than 500 pieces of my father’s work. The photographs of my father’s art reproduced in https://medium.com/@richardvanwagoner are hers.

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R.VanWagoner

Exercising my right not to remain silent. Criminal defense and First Amendment attorney.