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The United States of Paralysis

At a time of urgency, the Supreme Court and the Senate aren’t meeting the moment.

An activist flies an upside down US flag, the international sign of distress, outside of the US Supreme Court during a protest on June 26.SAMUEL CORUM/AFP via Getty Images

Our democracy is rapidly devolving into dysfunction.

As we chug further along in the 21st century, modern political mutations have gummed up the gears of governing arrangements adopted in the 18th century.

The results? A federal government increasingly unable to address the huge challenges of the day in a meaningful way and a broad swath of rights thrown into doubt.

We saw that again on Thursday when the US Supreme Court severely restricted the Environmental Protection Agency’s ability to curb greenhouse gas emissions from power plants. That comes even though a broken, filibuster-frustrated US Senate has repeatedly kept meaningful climate legislation from passing.


Last week, it was the high-court-created chaos over the constitutional right of privacy. For half a century or so, the court had held that such a right covered interracial marriage (1967), the ability of married (1965) and unmarried (1972) couples to obtain and use contraception, and legal access to abortion (1973). More recently, the court had included under the privacy umbrella the legal right of same-sex adults to intimate relations in the privacy of the bedroom (2003), and the opportunity for gay and lesbian couples to marry (2015) and enjoy the benefits thereof.

But as a consequence of stripping away federal abortion rights, the court has also seriously eroded the underpinnings of other rights based on similar constitutional interpretation.

A half-century ago, Roe v. Wade was decided with a 7-2 vote whose majority included five GOP-appointed justices. Two decades later, it was affirmed, with some adjustments, in Planned Parenthood v. Casey, a case in which all five justices in the majority were Republican appointees.

Now federal abortion rights have been rescinded by a 6-3 vote, in which all of the abortion-rights-repealing justices were appointed by Republicans, three of them by Donald Trump alone. As part of his courtship of social-issue conservatives, Trump promised that if elected, he’d select high-court jurists who would overturn Roe.


What’s changed here is not the Constitution. Nor is it the American public’s view of abortion or the other rights covered by the concept of constitutional protection of privacy.

Nor is it even the relative number of Republican-appointed justices on the high court. The 1973 court that ruled in favor of abortion rights had six justices appointed by Republican presidents and three by Democrats. So does today’s court.

What has changed is the outlook of the Republican-appointed justices. Once centrist, it has now evolved sharply rightward, rendering this court far more conservative than everyday America. Add to that the high-handed certitude that characterizes so many ideologues and you have an insular, activist court upending or threatening arrangements upon which many Americans depend.

Just to underscore the point about a dramatic shift in Supreme Court jurisprudence occurring without a related change in facts or societal opinion, consider this: Such a seismic shift would probably not have occurred if one eminent American jurist had been less self-important or if one powerful US senator had been more principled

The former figure was Ruth Bader Ginsburg; had she left the court during the Obama administration, she could have been replaced by a moderate-to-liberal justice.

The latter actor is Mitch McConnell. When Antonin Scalia died, on Feb. 13, 2016, McConnell, then the majority leader, conjured a rule from mist and fog and the vasty deep that if a Supreme Court vacancy occurs during the last year of a president’s term, the seat must remain open until voters have a chance to weigh in with their ballots in the upcoming presidential election. That kept the Scalia seat vacant for Donald Trump to fill with Neil Gorsuch.


Now, that was never more than raw power masquerading as principle — and that gossamer disguise was quickly discarded when Ginsburg died, on Sept. 18, 2020. Suddenly, there was no imperative to wait upon the election results. And so conservative Amy Coney Barrett was confirmed to the court on Oct. 26, just eight days before voters fired Trump and hired Joe Biden.

If Ginsburg had departed the court in a timely way, or if McConnell hadn’t invented his rule for the Scalia vacancy, or if he had honored it for the Ginsburg vacancy, another moderate-to-liberal justice would be on the court rather than either Gorsuch or Barrett.

If so, today’s court would have had four supporters of the Roe/Casey framework, plus Chief Justice John Roberts, who was willing to limit abortion rights to 15 weeks, but not overturn Roe outright. In such a circumstance, it’s likely that the furthest the court would have gone in curbing abortion rights would have been to Roberts’s position, a compromise the American middle probably could have come to embrace.


Now, winning no matter how disruptive the consequences seems fine with those who treat politics as a sporting contest where partisans simply and deliriously cheer on their team. But for more thoughtful citizens, this shouldn’t be about merely tallying victories, but also the situation in which our country is left. Without any court-recognized abortion rights, state abortion policies are rapidly descending into a patchwork of chaos. Some states, incredibly, are even searching for ways to restrict abortion-related interstate travel or enable civil-suit vigilantes to sue anyone who provides assistance with those travels.

Justice Samuel Alito, who wrote the majority opinion in Dobbs, tried to erect a limiting principle for why his anti-Roe-rights reasoning won’t extend to other privacy rights: Abortion involves potential life, while the other matters don’t. But the sophistry of that construction is revealed by the fact that three of the court’s current conservative justices haven’t recognized a privacy protection for gay marriage in the past. One of those justices? The same Samuel Alito who authored the Dobbs decision. Meanwhile, one of the court’s most radical conservatives, Clarence Thomas, is calling on his colleagues to reconsider constitutional protections for contraception, gay sexual relations, and same-sex marriage.

Mind you, this isn’t merely a problem with the court. The constitutional arrangement of two senators per state regardless of the population has always given rural states, which naturally tend toward conservatism, disproportionate sway in national decision-making. That’s an understood and accepted part of our system.


But when that over-representation is combined with the requirement that almost all Senate action requires 60 votes, the threshold needed to end a filibuster, it becomes exceedingly difficult for the nation to address urgent problems like climate change. Or to get anything more than the recent quarter-step forward on gun violence. Still, the evolution from a Senate where controversial matters were routinely decided by simple majorities to one where supermajorities are required for almost everything — a development that is the legacy of McConnell’s time as Republican leader — is apparently here to stay.

All that raises this question: With a court so far out of synch with the country and a Senate largely unable to function, can American government truly be said to be working any longer?

And this one: Is there a way forward? That is, a way back to a time when this country could get things done.

Please send me your thoughts. I may incorporate them in future columns on this crucial subject.

Scot Lehigh is a Globe columnist. He can be reached at scot.lehigh@globe.com. Follow him on Twitter @GlobeScotLehigh.