Category Archives: Supreme Court

The Assistance, Not the Resistance

As Amy Coney Barrett is expected to be confirmed today as the next Justice to the Supreme Court, one might expect to see more news coverage of the multiple ways Congressional Democrats have tried to block her confirmation. Given the massive groundswell of anguish and fury over her nomination to replace the legendary Ruth Bader Ginsburg, the corporate media and top Democrats, themselves, have seemed strangely silent, as if early on, they had already surrendered to the inevitable. Why this silence and why a lack of options, when progressives like Alexandria Ocasio-Cortez have called for using “every tool at our disposal,” and when Congressional aides are circulating a memo on Capitol Hill outlining multiple tactics for stalling this confirmation?

For the past four years, the US news media has been dominated by Trump and his daily atrocities. Always on edge and on call, the US public has become captive to what sociopathic and outrageous act he will perform next… what racist, sexist, or fascist scandal will befall the nation with each passing day. These daily scandals come like clockwork, and while terrible for the country, they have made the corporate media very happy. Since ratings (and profits) rely on click-bait, scandal and spectacle, Trump has provided the media daily fodder since before the 2016 primaries, and news outlets have been more than happy to give him the lion’s share of the news coverage.

These crises and spectacles dominating our mediascape also serve a more covert political function in our broader politics. Trump is the perfect foil and a classic villain– easy to hate based on his sociopathic personality, his multiple crimes (for which he’s never punished), and his inflammatory, hateful rhetoric that keeps the media wheels spinning 24/7. While Trump and his terrible minions are always on the main stage, the corporatists of both parties are working behind the scenes in relative obscurity. What becomes hidden behind the curtain of Trump’s daily scandals is the fact that both parties are entrenched in oligarchy. And as our nation’s wealth consolidates at the top and our national politics move further and further to the right, the media spotlight is always on the villainous Trump, and not the ruling elite of both parties who are starving the masses. The fact the Democratic Party continually fails to be a real opposition party to oligarchy or fascism is hardly a profitable news topic, and so it falls off the radar into darkness.

Any objective political analysis of Congressional dynamics could readily conclude that Democratic complicity is just as dangerous as Trump, and perhaps even more so, since so few people are paying attention to it. And since the corporate media hardly covers the failings of the Democratic establishment, it’s left up to us, the independent media, to shine a light on these systemic failings.

Trump’s Rise to Political Power

Even before Trump was elected, top figures in the Democratic establishment assisted in his rise to power. In late May of 2015, in a phone call with Trump, former President Bill Clinton “encouraged Trump’s efforts to play a larger role in the Republican Party.” Trump announced his decision to run for president in June of 2015, only a couple weeks after this conversation.

Bill was not the only Clinton to help legitimize Donald Trump as a viable candidate. The Hillary campaign elevated Trump in the media even before he had announced his candidacy. In an infamous memo sent out on April 23, 2015, Assistant Campaign Manager Marissa Astor suggested, “We need to be elevating the Pied Piper candidates so that they are leaders of the pack and tell the press to them seriously.” The news media was more than happy to oblige with this request, as Donald Trump was given more than $2 billion worth of free media coverage during his run.

The Hillary campaign doubled down on this Pied Piper strategy in a meeting on July 29, 2015, when they discussed, “How do we maximize Trump and others?” It was their belief that Hillary matched up better against Trump than against other candidates and therefore, it would be to Democratic advantage to push Trump as a legitimate contender. There was little or no concern about what would happen if Trump actually won, and a far-right authoritarian became president. Their strategy of elevating Trump succeeded in helping him secure the Republican nomination, but their estimation that Hillary could defeat him failed, as Trump won with 304 electoral votes while losing the popular vote by almost three million votes.

The Electoral College

Winning the popular vote while losing the electoral college is not new for Democrats. Democrats have won the popular vote in six out of seven presidential elections from 1992 until today, and yet have secured the presidency only four times.

Even though a recent Gallup poll showed that 61 percent of the US public supports abolishing the electoral college, the Democrats have not made any serious, unified effort to reform the electoral college since 1979. Given the threat to actual democracy that the electoral college represents, the Democrats’ reluctance to tackle this issue is baffling, especially given that they’ve had the power to do so multiple times, such as Bill Clinton’s eight-year presidency or during Obama’s Democratic (filibuster proof) super-majority during his first term. One might think that after the catastrophic presidency of George W. Bush — who oversaw more than a million casualties in the Iraq invasion and whose “War on Terror” has cost the United States some $6.4 trillion and displaced some 37 million people — the Democrats might be interested in reforming or abolishing the electoral college. After all, Al Gore actually won the popular vote by some 500,000 votes in 2000, but Bush’s victory was facilitated by a 5-4 vote on the Supreme Court to halt the recount in Bush v. Gore.

The fight to abolish the electoral college has now moved to the states, where the National Popular Vote bill has to be passed in states totaling 270 electoral votes in order for it to take effect. This is a much slower, more cumbersome process that could have been avoided had it been taken up by Democrats when they were in power.

The Judiciary

While Democrats won the popular vote in six of seven last presidential elections, the GOP has stacked the judicial branch with judges during Republican tenure and has appointed 14 out of 18, soon to be 15 out of 19, Supreme Court seats, if Judge Amy Coney Barrett is confirmed.

On March 16, 2016, President Barack Obama nominated Merrick Garland to the Supreme Court. This was almost nine months before the general election. Yet over this period, Republicans successfully blocked every effort to hold a hearing on Garland’s appointment. A key part of Mitch McConnell’s argument against holding hearings was the so-called Biden rule, which was based off a speech that then Senator Joe Biden gave in 1992, saying, “As a result, it is my view that if a Supreme Court Justice resigns tomorrow, or within the next several weeks, or resigns at the end of the summer, President Bush should consider following the practice of a majority of his predecessors and not — and not — name a nominee until after the November election is completed.” Even though their opposition left the court shorthanded, the Republicans presented a united front under McConnell and stonewalled the nomination.

Merrick Garland was by no means a progressive. He was a moderate who had bipartisan support from Republicans such as Orrin Hatch, Susan Collins, and John McCain, who all voted for him in 1997 when Clinton appointed him to the D.C. appeals court. McConnell’s choice to block the nomination was not about Garland’s ideology — it was about creating real political opposition for Obama. “One of my proudest moments was when I looked Barack Obama in the eye and I said, ‘Mr. President, you will not fill the Supreme Court vacancy,'” McConnell said.

Where was the Democratic opposition during these nine months? NPR describes the Democratic strategic thinking during this time: “So it was safer, in the judgments of spring and summer 2016, to let the Republicans look intransigent and unfair and hope somebody noticed. Perhaps the injustice to Garland would help Democrats win seats in supposedly blue states such as Wisconsin and Pennsylvania, and even red ones such as Missouri and North Carolina.” Rather than putting up any kind of meaningful resistance, the Democrats acquiesced and allowed Mitch to have his way, gambling everything on a Clinton victory in 2016. The failure of the Democrats to win the electoral college would later result in Trump nominating Neil Gorsuch, Brett Kavanaugh, and likely, Amy Coney Barrett to the Supreme Court.

Mitch McConnell’s use of the “nuclear option” to confirm Neil Gorsuch, changing the number of Senate votes needed to confirm a Supreme Court justice from 60 to 51, was first employed by Democrats in 2013 as a way to avoid Republican filibusters. While it seemed politically expedient at the time, it eroded the need for bipartisan consent and allowed a simple majority to wield more power. Even after McConnell invoked the nuclear option in 2017 to confirm Neil Gorsuch, three Democrats voted in favor of the confirmation of Gorsuch to the Supreme Court. The 51-vote majority would later be used to confirm Brett Kavanaugh, though one Democrat also voted to confirm him.

Democrats crossing over to confirm Trump-selected judges has been a pattern throughout the last four years. In October of 2017, the Senate confirmed Amy Coney Barrett to the Seventh Circuit Court of Appeals. The vote was 55-43, with three Democrats voting to confirm. Not only have some Democrats been complicit in voting to confirm even the most right-wing of Trump’s judicial appointments, but Chuck Schumer actually cut a deal with Mitch McConnell to fast-track many of these confirmations. In late August of 2018, just before the Brett Kavanaugh hearings, Schumer made this deal with the devil that gave 11 Trump nominees immediate approval and fast-tracked eight more for a vote. One of the judges that was fast-tracked in August of 2018 was Charles Barnes Goodwin, to become U.S. District Judge for the Western District of Oklahoma. The vote passed 52-42 with six democrats voting to confirm. This vote is noteworthy because Charles Goodwin had received a “not qualified” rating from the American Bar Association.

During the Trump administration, more than 200 Federal judges have been appointed. “Of the 202 confirmations, 154 have been men, and 173 have been white.” Trump’s lifetime-serving, judicial appointees have been the youngest ever, with an average age of 48. This demographic “cemented the gross mismatch between the federal judiciary and the public.” According to Vice News, “Democrats vote to confirm Trump’s nominees roughly 39 percent of the time.”

The consistent ratcheting of the judicial branch to the extreme right has been underway for decades. As the US Supreme Court has become more and more a corporate-friendly, GOP partisan weapon fueled by dark money, we have seen catastrophic decisions that have dismantled basic democratic protections, like Citizens United in 2010, the gutting of the Voting Rights Act in 2013, and McCutcheon’s 2014 rejection of campaign finance limits. And with Amy Coney Barrett’s terrible record on labor rights, women’s and public healthcareLGBTQ and other civil rights, failing to effectively oppose an extremist, right-wing takeover of the US judicial system is a clear case of aiding and abetting fascism.

Emergency Border Security Funding Bill

In addition to their lack of opposition to judicial appointments, a majority of House Democrats have been passing legislation that supports Trump’s racist, xenophobic agenda. In May of 2019, the House passed H.R. 3401, a bill which gave $4.6 billion in emergency funding for border security. Included in this bill was $418 million for Immigrations Customs and Enforcement (ICE) operations and support. This is the same agency that has since then been revealed to have been forcing hysterectomies on detainees. Only 95 of 233 House Democrats voted against this bill and only eight of 45 in the Senate. House Speaker Nancy Pelosi urged House Democrats to vote for the bill, saying, “In order to get resources to the children fastest, we will reluctantly pass the Senate bill.” These resources were earmarked for the very people who were separating and abusing the children at the detention centers.

Patriot Act

In November 2019, House Democrats passed an amendment to an appropriations bill that extended the Patriot Act by three months. Independent Congressman Justin Amash criticized this move, saying, “Democrats have highlighted Trump’s abuse of his executive powers, yet they’re teaming up to extend the administration’s authority to warrantlessly gather data on Americans.” Only ten House Democrats voted against this amendment. When the Patriot Act was once again set to expire in March 2020, the House came together to pass a further extension of these authoritative powers when they passed the Foreign Intelligence Surveillance Act (FISA) reform bill, which included extending provisions of the USA Patriot Improvement and Reauthorization Act of 2005 and the Intelligence Reform and Terrorism Prevention Act of 2004 until 2023.

In May of 2020, an attempt was made to amend the USA Freedom Act Reauthorization Bill to prevent the government from being able to conduct secretive warrantless surveillance of web browser history. This amendment required 60 votes to pass, but it came up one vote short. Ten Senate Democrats voted against it. Rather than fighting to prevent the Trump administration from having more tools with which to spy on US citizens, the Democrats have come together repeatedly to extend these bills and give the Trump regime additional powers.

Military Budget (NDAA)

The Democrats have repeatedly approved National Defense Authorization Acts (NDAAs) during Trump’s presidency — all of which have included increases in military spending. In December 2019, after the FY 2020 NDAA passed the Democratic controlled House with a vote of 377-48, Trump tweeted “Wow! All of our priorities have made it into the final NDAA: Pay Raise for our Troops, Rebuilding our Military, Paid Parental Leave, Border Security, and Space Force! Congress – don’t delay this anymore! I will sign this historic defense legislation immediately!” Everything that Trump wanted included a $738 billion price tag. Also included in this bill was continued material assistance for Saudi Arabia, after a failed battle to draw the line against further arms sales to the murderous regime. The US and Saudi-backed war on Yemen has killed some 233,000, with 60 percent of the dead as children under five. Eighty percent of Yemen’s population now relies on humanitarian aid, and Amnesty International cites 16 million waking up hungry every day. Nancy Pelosi released a final statement on the NDAA: “Democrats will always stand unified in support of a strong national defense For The People that honors our values, protects our security and advances our leadership in the world.”

Israel

Democrats have routinely come together in support of right-wing dictators and fascist regimes around the world, including the terrorist state of Israel. When Donald Trump moved the US Embassy in Israel from Tel Aviv to Jerusalem in May of 2018, Chuck Schumer called the move “long overdue.”

In 2019, Democrats came together overwhelmingly to support an appropriations act that increased funding for Israel to $3.8 billion. The only House Democrat to oppose this bill was Alexandria Ocasio-Cortez. Nancy Pelosi explained her stance on Israel in March of 2019, when she gave a speech to the American Israel Public Affairs Committee (AIPAC), saying, “Israel and America are connected now and forever. We will never allow anyone to make Israel a wedge issue.”

The influence of pro-Israel lobbyists such as AIPAC is so strong that Joe Biden intervened in crafting the wording of the non-binding 2020 Democratic platform to make sure that the word “occupation” was not used in reference to Israeli troops in Palestine. Internationally known as a war criminal for expanding Israel’s illegal and brutal military occupation of Palestine, US Democrats have been more than happy to go to bat for Benjamin Netanyahu and his corrupt criminal regime.

When we step back and look at the Democratic Party’s deep enabling tendencies of not only Trump and his authoritarian rule in the United States, but also Democrats’ consistent political support and material assistance for murderous regimes internationally, we are led to conclude that corporate-funded political parties (both Democratic and Republican) align themselves first and foremost with ruling-class, colonial interests, and against the interests of the working-class and the poor, both at home and abroad. A 2014 Princeton University study declared the United States to be an oligarchy because “Congress supports the lobbyists and economic elites over the will of the people.” Given the Democratic Party’s ever-increasing allegiance toward the oligarchical forces operating inside the US government, it must also be noted that the Democratic establishment is complicit with this same government’s slide toward fascism.

Nancy Pelosi, Chuck Schumer, and a whole class of corporate Democrats are so politically and economically aligned with oligarchy that they would rather stage false political protests as media ops than mount any kind of actual political opposition that could stop Trump’s increasingly fascist movement. At the end of the day, in order to mount real resistance to Trump, top Democrats would have to be willing to threaten their own cozy political and economic status with the corporations that fund and run the government. And that’s just not something they’re willing to do.

The post The Assistance, Not the Resistance first appeared on Dissident Voice.

Memories of Voter Suppression

Back in July 1962, when, according to Donald Trump, America was “great,” I was in the Deep South, working to register Black voters.  It was a near-hopeless project, given the mass disenfranchisement of the region’s Black population that was enforced by Southern law and an occasional dose of white terrorism.

It all started in the fall of 1961, the beginning of my senior year at Columbia College.  My roommate (Mike Weinberg) and I, both white, had joined the campus chapter of the Congress of Racial Equality (CORE) and participated in a few of its New York City projects.  The real action, though, was in the turbulent South, swept by sit-ins and Freedom Rides that demanded an end to racial discrimination and, especially, the right to vote.

On an evening in the spring of 1962, Ronnie Moore, a Black CORE Southern field secretary, brought the news of the Southern freedom struggle to our Columbia CORE meeting.  Having headed up desegregation efforts in Baton Rouge, Louisiana, Ronnie and three other students at Southern University, a historically Black institution, were out on bail on “criminal anarchy” charges.  The laws under which they were charged and imprisoned, which provided for a penalty of ten years at hard labor and a hefty fine, dated back to the state’s early twentieth century repression of union organizing among Black and white timber workers.

Stirred by what Ronnie told us, Mike and I went up to him after his talk and asked him how we could help the cause.  Looking us in the eyes, he said, smiling: “What are you boys doing this summer?”  In reply, we explained that, inspired by Jack Kerouac’s On the Road, we would be driving around the country.  “Any chance that you’ll get to Baton Rouge?” he asked.  “We could manage it,” we said.  “Well, do it,” he remarked, adding: “Maybe we could arrange to get you arrested!”  We all had a good laugh about that.

That July, as Mike and I drove along Louisiana roads enveloped in an atmosphere of racial segregation, racist remarks, and unbearably hot and steamy weather, the venture no longer seemed quite as amusing.  Nor, after arriving in Baton Rouge, was it easy to find Ronnie, for the Congress of Racial Equality wasn’t listed in the phone book.  But we did find a Committee on Registration Education, and figured that, with the same acronym, that must be his group.  It was.  The state authorities had obtained a court order to shut down its predecessor.

When we arrived at CORE’s tiny office, Ronnie was delighted to see us and, together with his coworkers, took us to an all-Black hangout for coffee.  In his view, and ours, the only safe people in the South were Black.  As for local whites, we considered them all actual or potential Nazis, and stayed clear of them and their institutions.  Whether they would stay clear of us remained uncertain.  Mike and I slept on the Moore family’s entry hall floor, where local residents had been known to fire bullets into it through the front screen door.

Although most of the voter registration campaign Mike and I worked on in Baton Rouge was rather mundane, one evening was particularly exciting. At dinner time, Ronnie suggested that we drive over to Southern University, from which he and the other CORE activists had been expelled for their “crimes.” As we entered the all-Black dining hall, students started yelling: “It’s Ronnie!  It’s Ronnie!”  Hundreds of students swiveled around and cheers rent the air.  Leaping onto one of the tables, Ronnie made an impassioned speech about the freedom struggle and, then, announced that he had brought with him two movement supporters from the North.  “Get up here, Larry and Mike!”  So we jumped up there, too, and did our best to deliver strong messages of solidarity.  We had just about finished when someone rushed in, warning that the campus security police were on their way and that we had better get out of there fast!  We did while students ran interference for us.

One day, Ronnie suggested that Mike and I drive him to Jackson, Mississippi, where a region-wide CORE-SNCC conclave would be held at the local Freedom House. Accordingly, after dinner, we hit the road through northern Louisiana (where a local gas station operator threatened to kill us) and, then, through Mississippi to Jackson.  Here, in an abandoned building taken over by the movement and around which police cars circled menacingly, we joined dozens of CORE and SNCC activists from the Deep South.  At night, they had lengthy political discussions, in which they expressed their bitterness toward the Kennedy administration for its failure to back civil rights legislation or to protect movement activists from racist violence.

During the days, Mike and I joined Luvaughn Brown, a Black activist recently incarcerated at the county prison farm, going door to door in a Black Jackson neighborhood and encouraging its residents to register to vote.  This was a tough job because people feared retaliation if they dared to exercise their voting rights and, also, because they would almost certainly be rejected. At the time, Mississippi used a “literacy test” to determine if a citizen was qualified to vote. A voting registrar would ask a potential registrant to define the meaning of a section in the lengthy state constitution.  If you were Black, the registrar announced that you had failed the test; if you were white, you passed.

Voter registration work was not only frustrating, but exceptionally dangerous.  The following summer, Medgar Evers, head of the local NAACP, was murdered in Jackson by a white supremacist for his leadership in a voter registration campaign. The next June, James Chaney, Andrew Goodman, and Michael Schwerner—participants in the Mississippi Freedom Summer voter registration project—met a similar fate.  Although rattled by our fairly brief Southern venture, Mike and I escaped with our lives, as did Ronnie.

Mike and I kept in touch, and were delighted when Congress responded to the scandal of Southern voter suppression with the Voting Rights Act of 1965, which outlawed the discriminatory voting practices of the past and established federal oversight of any new voting procedures in the offending states.

Imagine, then, our sense of sorrow, mingled with disgust, when, in 2013, by a 5-4 vote, the Republican-dominated U.S. Supreme Court gutted the Voting Rights Act.  This opened the door for numerous Republican-controlled state governments—many but not all Southern—to implement mass purges of their voter rolls, closure of polling places in minority neighborhoods, government ID requirements, felony disenfranchisement, and other barriers that deprived millions of Americans of the right to vote.

I wonder how Republican leaders can live with themselves when they betray the most basic principle of democracy.  Of all the things they have done during their time in power, this is surely one of the most despicable.

The post Memories of Voter Suppression first appeared on Dissident Voice.

Controversy Over the Alleged Abortion Views of Amy Coney Barrett Misses Wider Issues

The nomination to the United States Supreme Court of Amy Coney Barrett has raised again the issue of access to abortion, legalised in the United States in the decision in Roe v Wade 410 US 113 (1973) 47 years ago. If Ms Barrett is confirmed as a member of the Supreme Court it will make the conservative majority of the court 6:3. It is difficult to see why her appointment would make a difference to the United States abortion laws. The conservative capacity to make such changes already existed.

What her prospective appointment has done, however, is to raise the issue of  women’s access to abortion as a live political issue. Despite the undoubted significance of the Roe v Wade decision, the issue of abortion and a woman’s rights thereto has been far from settled.

The legal right to have an abortion is only part of the equation and other issues have equal importance. Unless all of those issues are addressed and satisfactorily resolved, the right to have an abortion, per se, can be a nugatory one. There are a number of other issues that need to be addressed.

Those who support abortion law reform; i.e., the decriminalisation of the law forbidding abortion, are still waging battles around the world. Roe v Wade was a milestone in the United States, but the legal right to an abortion had existed elsewhere for many years. Sweden, for example, has had legislation regulating the legal termination of pregnancy since 19391

Other developed countries by contrast followed years or even decades behind Roe v Wade. In the major Australian States of Queensland, New South Wales and Victoria, for example, abortion was only legalised in 2018, 2019 and 2006 respectively.

The legal availability of abortion did not, of course, mean that it first became available at that time. Women anxious to terminate the pregnancy had long sought and found the means to do so for a long time before the act was decriminalised. What the restrictive law did do, however, was either force women to have an unwanted pregnancy or risk an action that was not only criminal, but also carried significant health risks, being performed in unsafe conditions by inadequately qualified persons.

The decriminalisation of the procedure was not the end of the matter, as the United States experience vividly illustrates. The availability of the procedure varies widely from State to State where the removal of criminalisation was only one step in the process.

What the United States experience vividly illustrates is that decriminalisation is a necessary but not a sufficient condition in removing obstacles to the termination of an unwanted pregnancy. To be effective, the law must also provide both the means and the resources for the procedure to be actually carried out.

A reduction in the number of unwanted pregnancies, and hence the demand for abortion access could most effectively be approached by reducing the incidence of unwanted pregnancies in the first place. This is clearly achieved by women having access to safe and reliable contraception. Here one runs into one of the great paradoxes of the anti-abortion supporters. They are also overwhelmingly the holders of conservative views on both knowledge about and access to reliable contraception, particularly by unmarried persons.

It should be self-evident that the most effective means of reducing the number of abortions would be to reduce the number of unwanted pregnancies. The most efficient and effective way to reduce unwanted pregnancies is to prevent the conception occurring in the first place.

“Keeping your legs crossed” or “just say no” has never been realistic advice. Yet it is still advocated by conservative sections of the community as an effective antidote to an unwanted pregnancy. It is also inherently illogical to punish those unable or unwilling to accept such unrealistic advice by forcing them to continue with an unwanted pregnancy.

Having a child is not simply a consequence of a night’s carelessness, forgetfulness or ignorance. It is in effect a life time consequence. For many decades the result of the unwanted pregnancy could be removed by having a child adopted at birth. While such programs had their altruistic element, providing a supply of babies to couples unable to have children of their own, there were also huge social and psychological costs for the women obliged to give up their child in this way.

Changes in social attitudes to “unmarried mothers” together with the provision of financial support, radically changed the instance of adoptions. In New Zealand, for example, the legislative changes in the late 1960s had precisely that effect. The word “illegitimate” was legally abolished, social attitudes changed and raising a child as a single mother was no longer financially impossible.

The significant reduction in the social stigma of having a baby whilst not married, and the easing of the financial pressures have not been enough. There are still far too many unwanted pregnancies as the demand for abortion services amply illustrates.

Whilst it is not a complete answer, the solution for those opposed to abortion on moral, ethical or religious grounds, is to prevent as far as possible the occurrence of the unwanted pregnancy. History amply demonstrates that will not be achieved by moral exhortations or legislative discrimination.

The only realistic policy option is to reduce the incidence of unwanted pregnancy as far as possible. It will never be eliminated, and there will always be medical reasons for a termination. For those truly wanting a radical reduction in the incidence of abortion, however, the present policies are clearly inadequate. Restricting access to abortion as history amply demonstrates is a manifestly worse policy option. It is these broader policy options that legislators should be addressing rather than focusing on the views of a prospective Justice of the Supreme Court.

  1. Journal of Biosocial Science Vol 3 (2) April 1971 pp173-192.

The post Controversy Over the Alleged Abortion Views of Amy Coney Barrett Misses Wider Issues first appeared on Dissident Voice.

Howard Zinn Was Right: We Need To Stop Obsessing Over The Supreme Court

The death of Supreme Court Justice and liberal icon Ruth Bader Ginsburg left a gaping hole on America’s highest court. The question over her replacement has quickly become a hotly contested issue which will define the coming weeks and perhaps even months. Mere days after Ginsburg’s death, Trump nominated Amy Coney Barrett, a federal judge on the U.S. Court of Appeals for the Seventh Circuit with a conservative track record. Republican leaders have already signaled that they are ready to confirm Trump’s nominee as quickly as possible, while many Democrats have argued that whoever wins in November should nominate the next Supreme Court Justice. Today, the confirmation hearings began on Capitol Hill, and thus continues the ongoing politicization of the country’s highest judicial institution.

The future of the Supreme Court is one of the most common ‘whataboutisms’ – and perhaps one of the better arguments – that liberals and Democrats frequently invoke in favor of voting for Joe Biden this year, and for voting ‘blue no matter who’ in any given presidential election. But here is why the ‘but think of the Supreme Court’ argument is perhaps overstated, even in this current situation. Even if Biden were to win the election in November, and then nominated a liberal justice, what would be the outcome? It appears not unlikely that the Senate could still be controlled by Republicans, and that Senate Majority Leader Mitch McConnell would work hard to stall and prevent any liberal or moderate appointee that Biden could put forth, just like he and Senate Republicans did when Barack Obama, during his last year in office, had nominated Merrick Garland to replace Antonin Scalia. One can safely assume that the Republican leadership would double down on such efforts, and we would witness a long and drawn-out fight between a Republican-controlled Senate and a Democratic-controlled White House, with Biden wasting what little degree of political capital he would have on a SCOTUS appointment.

But let’s assume for a moment that a President Biden would actually get to appoint a liberal justice to replace ‘The Notorious RBG.’ Then what? With Trump’s recent appointments, SCOTUS was already stacked with a 5-4 majority in favor of conservative justices. And with Neil Gorsuch and Brett Kavanaugh both being relatively ‘young,’ this setup will be with us for the foreseeable future. So, what difference does it make if a decision is handed down 5-4 or 6-3 in favor of conservatives? It would be a loss for liberals regardless. And on the most important and polarizing issues – perhaps notwithstanding Kavanaugh’s carefully calculated positions and deliberations on antitrust law or Planned Parenthood – it is very unlikely that one of the more conservative justices would break ranks and side with the liberals on the bench. Moreover, let us not forget that Biden has his own fraught history of taking moderate and even conservative stances, such as, for instance, when his actions in the Anita Hill case helped clear the path for the confirmation of Clarence Thomas to the Supreme Court in 1991. Any Biden nominee would most likely be another moderate, who may side with liberals on some issues, but who would uphold, preserve, and accede to the center-right political status quo.

In any case, the country’s political discourse does not have to hinge and should not hinge on the composition of the Supreme Court. One way for the next President to deal with a conservative Supreme Court could be to ignore it altogether. On the one hand, this could be done by not actively relying on SCOTUS to affirm policies and agendas in the first place.  SCOTUS does not pick up cases by itself. Cases have to be brought before the court through a long appeals procedure, and if an administration were to not actively rely on this branch of the federal government, or the federal courts system in general, SCOTUS could potentially be rendered relatively ineffective.

On the other hand, it is important to remember that courts do not enforce laws. A president and their administration could simply refuse to follow a decision handed down by SCOTUS. In 1832, for instance, President Andrew Jackson blatantly ignored Chief Justice John Marshall and the Supreme Court’s decision in Worcester v. Georgia, which ruled that the Cherokee did not have to vacate the lands they occupied in Georgia. Yet, Jackson forcefully removed the Cherokee and other nations, and he famously snubbed Marshall, when he remarked that the Chief Justice had ‘made his decision,’ but that he had no way to ‘enforce it.’ While we should obviously never praise Andrew Jackson and his racist policies in any way, this anecdote still offers a valuable lesson. SCOTUS hands down decisions, but it cannot enforce them. If the Executive Branch refuses to comply with a SCOTUS decision, there are ways to circumnavigate or weaken any high court ruling.

One way to render a SCOTUS decision toothless could be achieved by playing the character of American federalism against itself. Liberals commonly point to the potential erosion of Roe v. Wade under a conservative Supreme Court, but they often neglect that the original decision in Roe actually had left the question over how to implement and administer the constitutional right to an abortion to the individual states. Compounded by decisions in subsequent high-profile abortion cases before SCOTUS, such as Webster v. Reproductive Health Services (1989) or Planned Parenthood of Southeastern Pa. v. Casey (1992), abortion rights have further developed highly unequally and disparately across the country, with states like Mississippi having virtually no abortion clinics left, while New York has just codified Roe v. Wade into state law in 2019, and similar proposals are pending in other states. Taking a page from the playbook of conservatives, activists and state legislatures in the individual states could and should work to implement such policies at the state level. And while there are pitfalls to the state level approach, it can be a useful way to circumnavigate a potentially oppressive federal court system.

Another way for a President to tackle the issue of an overtly conservative SCOTUS would be to ‘pack the Court’ to increase the number of seats, as President Franklin D. Roosevelt had proposed in 1937. But wait, some may say, wouldn’t this be undemocratic? Well, the whole concept of the Supreme Court, with lifetime appointments who are not accountable to the American people, is not exactly democratic. Yet, with its own political identities and agendas, SCOTUS has a tremendous impact on American political culture.

Yet, despite the attention that the Supreme Court occupies in public discourse, Americans should not lose sight of the bigger picture.  A few years before his death, eminent leftist historian and activist Howard Zinn had cautioned the American public not to focus too much on the Supreme Court. “Knowing the nature of the political and judicial system of this country, its inherent bias against the poor, against people of color, against dissenters,” Zinn argued, “we cannot become dependent on the courts, or on our political leadership.” In the context of the nominations of Chief Justice John Roberts and Samuel Alito to the bench, Zinn castigated the “weak mutterings of opposition by the Democrats.” Moreover, Zinn recalled how, historically, the courts have sided with entrenched wealth and power rather than with the people, and he affirmed that rights and progress were won only through constant agitation on the part of the latter. “The rights of working people, of women, of black people have not depended on decisions of the courts. Like the other branches of the political system, the courts have recognized these rights only after citizens have engaged in direct action powerful enough to win these rights for themselves. […] The courts have never been on the side of justice, only moving a few degrees one way or the other, unless pushed by the people.”

At the very baseline, Americans should focus less on government, court appointments, and political theater, and instead engage in more organizing for the kind of society that they want and need. After all, as Howard Zinn suggested, regardless of whether the Supreme Court tilts liberal or conservative, it won’t stop American imperialism, nor would it “redistribute the wealth of this country, or establish free medical care for every human being.” In 2020 and beyond, as Zinn had summed up so succinctly already in 2005, “it would be naive to depend on the Supreme Court to defend the rights of poor people, women, people of color, dissenters of all kinds. Those rights only come alive when citizens organize, protest, demonstrate, strike, boycott, rebel, and violate the law in order to uphold justice.” And in addition to all of these actions, perhaps it is time to rethink the institution of the Supreme Court altogether.

The post Howard Zinn Was Right: We Need To Stop Obsessing Over The Supreme Court first appeared on Dissident Voice.

Pro-Women’s Rights Supreme Court Judge Ruth Ginsburg Utterly Ignored Palestinian Genocide

On the occasion of the death of the remarkable, pro-women’s rights US Supreme Court judge but fervent supporter of genocidally racist Zionism, Ruth Bader Ginsburg (RBG), one notes that in her outstanding over 60 year career she was utterly silent about the human rights of Palestinians, and that  women and children are 75% of the 14 million sorely oppressed Palestinians, the 7 million Exiled Palestinians, the 8 million Palestinian refugees, the 5 million Occupied Palestinians with zero human rights in the military-guarded Gaza Concentration Camp (2 million) and West Bank ghettoes (3 million), and the 2 million Palestinian Israelis living as Third Class citizens of Apartheid Israel under over 60 race-based laws.

Genocidally racist American and British Zionists played a key role in the Balfour Declaration and the defeat of Germany in WW1 that had the dreadful consequences of Nazi German anti-Jewish anti-Semitism, WW2, the WW2 Jewish Holocaust (5-6 million Jews killed through violence or deprivation) and the ongoing  Palestinian Genocide (2.2 million Palestinian  deaths from violence, 0.1 million, or from imposed deprivation, 2.1 million, since the Australia-assisted British invasion of the oil-rich Middle East in 1914).1

Silence is complicity. Kathryn  Shihadah has written about these horrendous historical realities  and has described Judge Ginsburg’s Palestinian Genocide-complicit silence as “Progressive Except Palestine” (PEP) (2017): “Ginsburg [first Jewish woman on the US Supreme Court] has pursued justice wholeheartedly all her life, and has throughout her career advocated for progressive causes. In 1972, she co-founded the Women’s Rights Project at the ACLU, and fought more than 300 gender discrimination cases between 1973 and 1974. But these admirable convictions we see in Ginsburg that are common among many Americans – empathy toward the marginalized, advocacy for defenseless – suddenly evaporate in certain situations. Perhaps it’s subconscious, but there lurks another loyalty ready to override the cause of true justice and compassion. Ruth Bader Ginsburg is among the many influential members of the P.E.P. Club: Progressive Except Palestine.  For someone dedicated to liberty and justice for all, she is resoundingly silent on the issue of Palestine. Nowhere in her recently published collection of writings, My Own Works , do the words ‘Palestine’ or ‘Palestinian’ appear. Even ‘Arab’ is nowhere to be found, although she discusses the Holocaust, Zionism, and Israel.”

Kathryn Shihadah has further commented on the malignant impact of Zionist US Supreme Court judges on WW1, WW2, the Jewish Holocaust and the Zionist invasion of Palestine (2017): “Ruth Bader Ginsburg is [was] a big fan of the Supreme Court’s first Jewish justice, Louis Dembitz Brandeis. Brandeis is revered today as a great judge, but at the time of his appointment – 1916 – he was recognized by some as ‘unscrupulous’ in his methods and at times ‘unethical’ in his behaviour… In 1916, President Woodrow Wilson named Brandeis to the Supreme Court. As required, Brandeis officially resigned from his formal affiliations, including stepping down from his leadership role in Zionism. However, he zealously continued his work on a more informal basis, even from his Supreme Court chambers. Later, he would persuade the next 2 Jewish justices – Cardozo and Frankfurter – to join the ranks of the Zionist Organization of America, assuring a continued, subtle partiality toward the Jewish project… Samuel Landman, secretary of the World Zionist Organization, claimed in a 1936 article in World Jewry, that it was ‘Jewish help that brought USA into the war on the side of the Allies.’ The goal was not victory for the Allies, but real estate in Palestine, so Brandeis and associate Felix Frankfurter reportedly worked to ensure the war would last until Palestine was in the bag. They even reportedly sabotaged a potential opportunity to end the war in May 1917 (18 months early), which would have saved much destruction and many lives, including Brandeis’ fellow Americans. Eventually, of course, Germany was defeated. According to historian Henry Wickham Steed, one of Germany’s top generals considered the Balfour Declaration to be ‘the cleverest thing done by the Allies in the way of propaganda,’ and wished Germany had thought of it first. Landman further stated that Germany was aware of the Jewish connection, and, chillingly, this ‘contributed in no small measure to the prominence which anti-Semitism occupie[d] in the Nazi program’ only a few decades later. This horrific irony can not be overstated.”2

Seen in the light of this appalling history, at a personal level for me another ultimate consequence of malignant racist Zionism was the extermination of all but a dozen of my family in the ethnic cleansing of Jews from Hungary in 1944-1945. It is now too late to tell the famed human rights advocate but shamefully pro-Zionist and Palestinian human rights-ignoring Ruth Bader Ginsburg that silence is complicity.

Below is a 50-item  summary of a century of horrors inflicted upon the Palestinians but utterly ignored by famed, pro-human rights, Jewish American Supreme Court judge, Ruth Bader Ginsburg:

(1). The ongoing Palestinian Genocide  has been associated with 2.2 million Palestinian deaths from violence, 0.1 million, or from imposed deprivation, 2.1 million, since the British invasion of the Middle East in WW1.

(2). Eminent International law expert Professor Francis Boyle (University of Illinois) has stated: “The Palestinians have been the victims of genocide as defined by the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, under which a government can be guilty of genocide even if it intends to destroy a mere “part” of the group”.

(3). Of 14 million Palestinians (75% women and children),  7 million are Exiled from Palestine, 5 million are Occupied Palestinians highly abusively confined under military rule to the Gaza Concentration Camp (2 million)  or to West Bank ghettoes (3 million), and nearly 2 million are Palestinian Israelis living as Third Class citizens  under over 60 Nazi-style, race-based laws.

(4). In  1880 there were 25,000 Jews (mostly immigrants) and  500,000 Indigenous Arab Palestinians living in Palestine.

(5). The Palestinian  Genocide commenced with the famine deaths of 100,000 Palestinians associated with  conquest of Palestine  in WW1 by the British and the Australian  and New Zealand Army Corps (ANZAC).

(6). Palestine became disposable British ”property” with the 1916 Sykes Picot Agreement that divided the oil-rich Middle East between the UK and France.

(7). The notorious  Balfour Declaration from racist Lord Balfour to Zionist Lord Rothschild (2 November 1917) was sent only 2 days after the Australian cavalry charge victory over the Turks at Beersheba, Palestine  (31 October 1917).

(8). The draft of the Balfour Declaration was strongly opposed by anti-racist Jewish British Government Minister Sir Edwin Montagu (only the second British Jew to enter the British Cabinet) as a grave injustice  to the Indigenous Palestinians, and as “anti-Semitic and in result will prove a rallying ground for Anti-Semites in every country in the world”. Australia’s anti-racist Jewish Governor General Sir Isaac Isaacs, the first Australian-born Governor General,  was also resolutely anti-Zionist.

(9).  Orthodox Jewish rabbis, most notably  the outstanding German rabbi  Samson Raphael Hirsch (after whom my great grandfather was named), were resolutely opposed to Zionism.

(10). Fervently pro-Zionist Jewish British historian  Professor Sir Martin Gilbert in a book on WW1 stated that the Balfour Declaration was offered as an inducement for   Zionist Communists to keep Russia in WW1. Professor Martin Gilbert has documented about 20 suggested locations around the world for a Jewish state,  and indeed genocidal racist Theodor Herzl (the founder of Zionism) suggested Argentina as an alternative  to Palestine.

(11). The violent killing of Indigenous Palestinians commenced with the 10 December 1918 Surafend Massacre by Australian and New Zealand Army Corps (ANZAC) soldiers in which about 100 Palestinian villagers were massacred.

(12). Genocidally racist American and British Zionists played a key role in the Balfour Declaration and the defeat of Germany in WW1 that had the dreadful consequences of Nazi German anti-Jewish anti-Semitism, the horrors of WW2, the WW2 Jewish Holocaust (5-6 million Jews killed through violence or deprivation), the ongoing  Palestinian Genocide and the ongoing, US-imposed Muslim Holocaust and Muslim Genocide.

(13). Zionists  contributed to the WW2 Jewish Holocaust by collaborating with the Nazis before and during WW2,  and opposing Jewish refugees finding sanctuary anywhere except Palestine.

(14). In 2020 there are 13.9 million Israeli subjects, these   comprising 6.6 million Jewish Israelis, 1.9 million Indigenous Palestinian Israelis, 5 million Occupied Palestinians,  and 0.4 million non-Jewish and non-Arab  Israeli subjects. Jewish Israelis are a 47% minority of the subjects of Apartheid Israel, and Indigenous Palestinians are  50% of Apartheid Israeli subjects.

(15). UN General Assembly  Resolution 3246 (29 November 1974) states in part: “7.  Strongly condemns all Governments which do not recognize the right to self-determination and independence of peoples under colonial and foreign domination and alien subjugation, notably the peoples of Africa and the Palestinian people”.

(16). 90% of Palestine has now been ethnically cleansed of Indigenous Palestinian  inhabitants in an ongoing war criminal ethnic cleansing that has been repeatedly condemned by the UN and most recently by UN Security Council Resolution 2334 that was unanimously supported except for a remarkable Obama US abstention.

(17). Apartheid Israel has also annexed and ethnically cleansed a small part of Lebanon and a large part of  Syria.

(18). There are 8 million Palestinian refugees, 7 million Exiled Palestinians, 5 million Occupied Palestinians, and 1.9 million Israeli Palestinians, with  all of these 14 million Palestinians variously excluded from all or part of Palestine, a land known as such for about 2,500 years after the Philistine coastal inhabitants of circa 1,000 BCE.

(19). 5 million Occupied Palestinians have zero (0) of the human rights set out in the 30 Articles of the Universal Charter of Human Rights.

(20). Nearly 2 million Palestinian Israelis live as Third Class citizens  under over 60 Nazi-style race-based discriminatory laws and under threat of further genocidal mass expulsion.

(21). Despite massive and deadly imposed deprivation and  repeated episodes of genocidal mass expulsion (800,000 in the 1948 Nakba or catstrophe and 400,000 in the 1967 Naksa or setback), Indigenous Palestinians today  represent 50% of the subjects of Apartheid Israel  (the ruling Jewish Israelis  represent a 47% minority).

(22). 73% of the Indigenous Palestinian subjects of Apartheid Israel cannot vote for the government ruling them i.e. they are subject to egregious Apartheid that has been described by anti-racist Jewish and non-Jewish South African anti-Apartheid heroes as worse than Apartheid in South Africa.

(23).  Dr  H. F. Verwoerd (Prime Minister of South Africa from 1958 until his assassination in 1966 and  the “Architect of Apartheid” in South Africa) at the UN (1961): “Israel is not consistent in its new anti-apartheid attitude… they took Israel away from the Arabs after the Arabs lived there for a thousand years. In that, I agree with them. Israel, like South Africa, is an apartheid state.”

(24). The “GDP per capita” is  US$42,000 for Apartheid Israel but a deadly $3,000 for Occupied Palestinians.

(25). 50% of the egregiously mal-treated  Occupied Palestinians are children and 75%  are women and children.

(26). In the 21st century each year an average of about 550 Occupied Palestinians have been killed violently by Apartheid Israel, and a further average of about 4,200 have died annually from imposed deprivation.

(27). In the 21st century there have been 1,615 non-terrorism Israeli deaths from homicide by Israelis, 164 Israeli deaths from terrorism in Israel (excluding Jerusalem), 1,183 further Israeli deaths from terrorism elsewhere in Zionist-ruled Palestine, 9,505 Occupied Palestinian deaths by Israelis, and 72,000 Occupied Palestinian avoidable deaths from imposed deprivation (2017 estimates).

(28). In the period 1920 – February 2017 there were 3,847 Israeli/Zionist  deaths from Palestinian violence as compared to about 100,000 Palestinians violently killed by Zionists and about 2 million Palestinians dying from imposed deprivation.

(29). In the 21st century each year an average of 70 Zionists are killed by Palestinians versus 550  Palestinians violently killed by Apartheid Israel,  and  through imposed deprivation, each year Apartheid Israel passively  murders about 2,700 under-5 year old Palestinian  infants and passively murders 4,200 Occupied Palestinians in general who die avoidably from deprivation each year. under Israeli Apartheid.

(30). There is a circa 10 year life expectancy gap between Occupied Palestinians and Israelis, this grossly violating Articles 55 and 56 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War that demand that an Occupier must provide life-sustaining food and medical services to the Occupied subjects “to the fullest extent of the means available to it”.

(31). UN experts have recently described conditions in the illegally blockaded and regularly shelled and bombed Gaza Concentration Camp as verging on the  “unliveable”.

(32). Apartheid Israel has attacked 13 countries and  occupied 5, whereas Iran that Apartheid  Israel  threatens with nuclear destruction has not invaded another country for 1,300 years (i.e. from the time of the Sassanian Empire).

(33). Arabic has been the main language of Palestine for 1,400 years, and Indigenous Palestinians are 50% of the subjects of Apartheid Israel. However Arabic was relegated to merely a “special language” in the recent Nazi-style Apartheid Israeli “Jewish Nation State Legislation”.

(34). In its genocidal treatment of the Palestinians, US-, UK-, Canada-, France- , EU- and Australia-backed Apartheid Israel ignores numerous UN General Assembly Resolutions and UN Security Council Resolutions, the UN Genocide Convention, the Geneva Convention, the Universal Declaration of Human Rights, the Rights of the Child Convention, the UN Declaration on the Rights of Indigenous Peoples, the UN Refugee Convention, the UN Convention on Apartheid,  and many other aspects of International Law.

(35). Apartheid Israel has violently invaded the territory of 13 countries (this including planes and ships, to whit  Egypt, Syria, Lebanon, Palestine, Jordan, Turkey, Iraq, Iran, Sudan, Libya, Uganda, Tunisia, and the US (the attack on the USS Liberty in 1967 that killed 34 and wounded 171), and has occupied the territory of 5 other countries, namely  Egypt, Syria, Lebanon, Palestine, and Jordan.

(36). The 1950-2005  avoidable deaths (excess deaths) from deprivation in 5 countries variously occupied by Apartheid Israeli total 24 million.

(37). Of  5 million Occupied Palestinians  (half of them children), many are routinely blackmailed through imprisonment, torture or denial of life-saving medical care to spy on fellow Palestinians for Apartheid Israel.

(38). 5 million Occupied Palestinians (half of them children) are excluded by armed military check points from Jews-only areas and Jews-only roads.

(39). 50% of Israeli children are physically, psychologically or sexually abused each year,  but 100% of Occupied Palestinian children are subject to traumatizing human rights abuse by the serial war criminal Israel Defence Force (IDF) through actual or threatened deadly violence.

(40). With continuing deadly blockade and after repeated, large-scale  destruction of homes, schools, hospitals and infrastructure, conditions in the Gaza Concentration Camp are appalling. Only about 30 Israelis gave ever been killed by home-made Gaza rockets but the grossly disproportionate Israeli bombing and shelling reprisals have devastated densely populated  Gaza, and killed 4,600 and wounded about 20,000, most disastrously  in 2008-2009 and in 2014.

(41). Since March 2018 the Israelis have  killed about 200 unarmed Palestinians  and wounded about 20,000  more  out of scores  of thousands of unarmed Occupied Palestinians protesting the Occupation weekly in Gaza (in  the 1960 Sharpeville Massacre in Apartheid South Africa police killed  69 demonstrators  and wounded 220 more).

(42). Apartheid Israel backed Apartheid South Africa and was variously complicit in the Guatemalan Mayan Genocide, the Sri Lanka Tamil Genocide,  the Myanmar Rohingya Genocide,  the Iraqi Genocide and the US-backed neo-Nazi Ukrainian Revolution.

(43). In repeated recent elections  6.6 million Jewish Israelis have overwhelmingly supported  Apartheid, Occupation and the ongoing Palestinian Genocide.

(44). Apartheid Israel reportedly has up to 400 nuclear weapons, has 6 German-supplied submarine launch platforms, and helped Apartheid South Africa acquire nuclear weapons.

(45). Jewish Israelis overwhelmingly derive from Yemeni, Berber and Khazar converts to Judaism whereas it is actually  the Indigenous Palestinians who are the descendants  of the Jewish and non-Jewish inhabitants of Palestine at the time of that wonderful, Aramaic-speaking,  Palestinian humanitarian, Jesus.

(46). Molecular biological and linguistic studies variously reveal that the Ashkenazim (the minority ruling Apartheid Israel)  derive from Khazar converts to Judaism in the first millennium CE, and that there is a  substantial prehistoric European ancestry amongst Ashkenazi maternal lineages.

(47). Zionist leaders from genocidal racists Theodor Herzl (Palestinian Genocide) and Winston Churchill (WW2 Bengali Holocaust) to  genocidally racist Israeli prime ministers from David  Ben Gurion to Benjamin Netanyahu have uttered deeply racist and indeed genocidal comments about Palestinians that would be totally unacceptable in the “politically correct Western democracies  that back Apartheid Israel.3

(48). President John  F. Kennedy and his brother Robert Kennedy unsuccessfully sought registration of Zionists as agents of a foreign power. Successive  US administrations became beholden to the Zionists after Apartheid Israel acquired nuclear weapons by 1967 with French and US help.

(49). Successive US administrations have committed $6 trillion to Zionist-backed wars in which 32 million Muslims have died from violence (5 million) or deprivation (27 million) in 20 countries invaded by the US Alliance since the US government’s 9-11 false flag atrocity that killed 3,000 people.

(50). Over 30 million Americans have died preventably since 9-11 from “lifestyle  choice” and “political choice” reasons. Thus successive US administrations have committed $6 trillion to killing over 30 million Muslims abroad instead of trying to keep 30 million Americans alive at home.

  1. For a detailed and documented analysis of the horrendous death toll in a century of Zionist-promoted wars and attendant holocausts and genocides see Gideon Polya, US-Imposed Post-9/11 Muslim Holocaust & Muslim Genocide, 400 pages, Korsgaard Publishing, Germany, 4 June 2020; and Gideon Polya, “Racist Mainstream ignores US-Imposed Post-9/11 Muslim Holocaust & Muslim Genocide,” Countercurrents, 17 July 2020.
  2. See Kathryn  Shihadah, “Ruth Bader Ginsburg: at 84, where does she get her PEP (Progressive Except Palestine)?”, Israel-Palestine News, 20 December  2017.
  3. See “Zionist quotes re racism and Palestinian Genocide,” Palestinian Genocide.

The post Pro-Women’s Rights Supreme Court Judge Ruth Ginsburg Utterly Ignored Palestinian Genocide first appeared on Dissident Voice.

The Hypocrisies of Recognition: The Supreme Court, Native Americans and the McGirt Case

The Supreme Court of the United States has barely had time to gather its collective breath this last few days.  Among its decisions, including those dealing with President Donald Trump’s financial records, was that of McGirt v Oklahoma. The case furnishes a detailed discussion on the extent Native American self-governance survived the assaults of the US Congress and the creation of the State of Oklahoma in 1907.

The Creek (Muscogee) Reservation itself arose from circumstances of predation and cruelty.  Forcibly relocated from Georgia and Alabama, “the Creek nation,” wrote Justice Neil Gorsuch, “received reassurances that their new lands in the West would be secure forever.  In ceding their land East of the Mississippi River, a pledge by the 1832 treaty was made that the “Creek country west of the Mississippi shall be solemnly guaranteed to the Creek Indians.”

By the narrowest of decisions, the court found 5-4 against the state of Oklahoma.  The state authorities had claimed that the Creek Reservation did not survive the “allotment era” and had been “disestablished”.  Jimcy McGirt, convicted by an Oklahoman state court of three sexual offences that had taken place on the Creek Nation Reservation in the north-eastern part of the state, had claimed otherwise.  As a member of the Seminole Nation, he submitted in post-conviction proceedings that the State lacked jurisdiction to prosecute him.  The relevant statute was the federal Major Crimes Act, which provided that, within “the Indian country”, any Indian committing certain offences “shall be subject to the same law and penalties as all other persons committing any of [those] offenses, within the exclusive jurisdiction of the United States”.  His initial effort to seek a new trial in federal court failed, leading to the Supreme Court petition.

That period of central government nastiness in the late nineteenth century known as the “allotment era” had a purpose common to other frontier societies: the assimilation of the native intransigents through means designed to wean them off their traditional customs.  As the zealous Captain Richard Pratt opined in 1892, the United States needed to “kill the Indian in him, and save the man.”  Enough with the physical massacres; what was needed was a concerted effort to Americanize and civilise, a form of spiritual genocide.  Pratt envisaged doing so through education, including the US Training and Industrial School he founded in 1879 at Carlisle Barracks in Pennsylvania.  Out with the “savage” habits: tribal language, identity and long hair; in with the new American, albeit a stunted one with his nerves extracted.  Such education was to be rudimentary or, in the words of President Teddy Roosevelt, “very, very limited.”

In terms of property, the allotment era was trumpeted by the passage of the Dawes Act of 1887, also known as the General Allotment Act.  This entailed breaking up tribally owned reservations and allocating them to individual households, though the process came with a nasty catch: such divided land would initially be held in trust; Native American households would have to prove their competence in exercising full “fee simple” property rights.  The result, in many instances, was also the selling of Indian land to non-Indian purchasers.

In his address to Congress in 1901, Roosevelt gave his boisterous assessment of the statute.  “The General Allotment Act is a mighty pulverizing engine to break up the tribal mass.  It acts directly upon the family and the individual.” The Act had enabled sixty thousand Indians to become US citizens.  It was now essential, Roosevelt suggested, to “break up the tribal funds, doing for them what allotment does for tribal lands; that is, they should be divided into individual holdings.”

The majority, ruling in favour of McGirt, affirmed that the land in question remains a reservation that gives the federal government exclusive jurisdiction over crimes committed on it.  In doing so, the court also confirmed the continuing existence of a reservation stretching some 19 million acres including eight counties and most of Tulsa.

In their skirt through the legislative record, the majority found no statute “evincing anything like the ‘present and total surrender of all tribal interests’.”  The transfer of individual plots, whether to Native Americans or others, “did not disestablish the reservation”.   A body of statutes and treaties over time confirmed the legal standing of the Creek Reservation.  The majority rebuked the argument that States had claimed powers “to reduce federal reservations within their borders”.  To imagine such a power would enable States to “encroach on the tribal boundaries or legal rights Congress provided, and, with enough time and patience, nullify the promises made in the name of the United States.”  Despite various efforts by Congress to intrude upon Creek self-governance, these were not sufficient to suggest disestablishment.  “Oklahoma and the dissent have cited no case in which this Court has found a reservation disestablished without first concluding that a statute first required that result.”

Chief Justice John Roberts, who managed to avoid being in the majority in all 5-4 court decisions this term, was glum about the consequences.  The decision was a torch taken to state governance.  “Across the vast area, the State’s ability to prosecute serious crimes will be hobbled and decades of past convictions could well be thrown out.  On top of that, the Court has profoundly destabilized the governance of eastern Oklahoma.”  The majority judgement had also created “significant uncertainty for the State’s continuing authority over any area that touches Indian affairs, ranging from zoning and taxation to family and environmental law.”

Roberts further bristled at the idea that Congress needed to be wordily explicit in terminating a reservation, having “made abundantly clear its intent to disestablish the Creek territory”.  Just look at the historical record, the chief justice urged.  Congress “supplanted the Creek legal system with a legal code and court system that applied equally to Indians and non-Indians.”  It “systematically dismantled the governmental authority of the Creek Nation, targeting all three branches.”  It “destroyed the foundation of sovereignty by stripping the Creek Nation of its territory.”

Justice Gorsuch, in his judgment for the majority, had little time for such worries.  To suggest an army of inmates rushing to seek new trials in federal courts was “admittedly speculative, because many defendants may choose to finish their state sentences rather than risk prosecution in federal court where sentences can be graver”.  Besides, no actual intention to terminate the legal standing of the Creek Reservation could ever be found.

In all the excitement, it would have been easy to have overlooked the predecessor case of Sharp v Murphy, in which the court heard argument on the same question as that of McGirt.  The case stalled in its tracks in 2018 as Gorsuch had recused himself, having served on the 10th circuit of the US Circuit Court of Appeals, comprising Oklahoma.  Instead of going through re-arguments there, Sharp was restored to this calendar term and duly decided in favour of the inmate Patrick Murphy “for the reasons stated in” McGirt.  Murphy had also committed his crime within the boundaries of the Creek Nation.

Having anticipated the decision, somewhat, Oklahoma Attorney General Mike Hunter, along with all Five Tribes affected by the decision, including the Cherokee, Chickasaw, Choctaw, Seminole Nations, issued a statement committing the parties “to ensuring that Jimcy McGirt, Patrick Murphy, and all other offenders face justice for crimes for which they are accused.  We have a shared commitment to maintaining public safety and long-term economic prosperity for the Nations and Oklahoma.”

The decision of McGirt masks the crude realities of institutional, colonial violence.  It perpetuates an illusion, a discredited understanding between Native American nations and the US federal government.  That was the lingering “promise”, as Gorsuch claims, “[o]n the far end of the Trail of Tears”, one that was never kept.  Chief Justice Roberts was very much on to it.  In letting the cat out of the bag on Native American-Indian relations, he suggested that Congress had acted in a manner entirely inconsistent with preserving any semblance of Creek sovereignty.  We are left with the Native American Indian in confused legal dress, trampled, abused, deceived by history but with only a symbolic heartbeat.

The System Is Rigged: Qualified Immunity Is How the Police State Stays in Power

The system is rigged.

The system is rigged, the government is corrupt, and “we the people” continue to waste our strength by fighting each other rather than standing against the tyrant in our midst.

Because the system is rigged, because the government is corrupt, and because “we the people” remain polarized and divided, the police state will keep winning and “we the people” will keep losing.

Because the system is rigged and the U.S. Supreme Court—the so-called “people’s court”—has exchanged its appointed role as a gatekeeper of justice for its new role as maintainer of the status quo, there will be little if no consequences for the cops who brutalize and no justice for the victims of police brutality.

This is how unarmed Americans keep dying at the hands of militarized police.

By refusing to accept any of the eight or so qualified immunity cases before it this term that strove to hold police accountable for official misconduct, the Supreme Court delivered a chilling reminder that in the American police state, ‘we the people’ are at the mercy of law enforcement officers who have almost absolute discretion to decide who is a threat, what constitutes resistance, and how harshly they can deal with the citizens they were appointed to ‘serve and protect.”

This is how qualified immunity keeps the police state in power.

Lawyers tend to offer a lot of complicated, convoluted explanations for the doctrine of qualified immunity, which was intended to insulate government officials from frivolous lawsuits, but the real purpose of qualified immunity is to rig the system, ensuring that abusive agents of the government almost always win and the victims of government abuse almost always lose.

How else do you explain a doctrine that requires victims of police violence to prove that their abusers knew their behavior was illegal because it had been deemed so in a nearly identical case at some prior time: it’s a setup for failure.

Do you know how many different ways a cop can kill, maim, torture and abuse someone without being held liable?

The cops know: in large part due to training classes that drill them on the art of sidestepping the Fourth Amendment, which protects us from being bullied, badgered, beaten, broken and spied on by government agents.

This is how “we the people” keep losing.

The courts have given the police and other government agents a green light to shoot first and ask questions later, as well as to probe, poke, pinch, taser, search, seize, strip and generally manhandle anyone they see fit in almost any circumstance

Whether it’s police officers breaking through people’s front doors and shooting them dead in their homes or strip searching motorists on the side of the road, these instances of abuse are continually validated by a judicial system that kowtows to virtually every police demand, no matter how unjust, no matter how in opposition to the Constitution.

Make no mistake about it: this is what constitutes “law and order” in the American police state.

A review of critical court rulings over the past several decades, including rulings affirming qualified immunity protections for government agents by the U.S. Supreme Court, reveals a startling and steady trend towards pro-police state rulings by an institution concerned more with establishing order, protecting the ruling class, and insulating government agents from charges of wrongdoing than with upholding the rights enshrined in the Constitution.

Indeed, as Reuters reports, qualified immunity “has become a nearly failsafe tool to let police brutality go unpunished and deny victims their constitutional rights.” Worse, as Reuters concluded, “the Supreme Court has built qualified immunity into an often insurmountable police defense by intervening in cases mostly to favor the police.”

The system is rigged.

Police can claim qualified immunity for warrantless searches.

Police can claim qualified immunity for warrantless arrests based on mere suspicion.

Police can claim qualified immunity for using excessive force against protesters.

Police can claim qualified immunity for shooting a fleeing suspect in the back.

Police can claim qualified immunity for shooting a mentally impaired person.

Police officers can use lethal force in car chases without fear of lawsuits.

Police can stop, arrest and search citizens without reasonable suspicion or probable cause.

Police officers can stop cars based on “anonymous” tips or for “suspicious” behavior such as having a reclined car seat or driving too carefully.

Police can forcibly take your DNA, whether or not you’ve been convicted of a crime.

Police can use the “fear for my life” rationale as an excuse for shooting unarmed individuals.

Police have free reign to use drug-sniffing dogs as “search warrants on leashes.”

Not only are police largely protected by qualified immunity, but police dogs are also off the hook for wrongdoing.

Police can subject Americans to strip searches, no matter the “offense.”

Police can break into homes without a warrant, even if it’s the wrong home.

Police can use knock-and-talk tactics as a means of sidestepping the Fourth Amendment.

Police can carry out no-knock raids if they believe announcing themselves would be dangerous.

Police can recklessly open fire on anyone that might be “armed.”

Police can destroy a home during a SWAT raid, even if the owner gives their consent to enter and search it.

Police can suffocate someone, deliberately or inadvertently, in the process of subduing them.

As I make clear in my book Battlefield America: The War on the American People, we are dealing with a nationwide epidemic of court-sanctioned police violence carried out with impunity against individuals posing little or no real threat.

Police reform is necessary and unavoidable if we are to have any hope of living in an America in which freedom means something more than the right to stay alive, but how we reform the system is just as important as getting it done.

We don’t need to wait for nine members of a ruling aristocracy who primarily come from privileged backgrounds and who have a vested interest in maintaining the status quo to fix what’s broken in America.

Nor do we need to wait for 535 highly paid politicians to do something about these injustices only when it suits their political ambitions.

And we certainly don’t need to wait for a president with a taste for totalitarian tactics to throw a few crumbs our way.

This is as much a local problem as it is a national one.

Be fair. Be nonviolent. Be relentless in your pursuit of justice for all.

Let’s get it done.

History Tells Us Which Democratic Nominee Truly Hurts Down Ballot Democrats

“Sanders can’t win the presidency. He’s too far left.” Others opine, “He’ll never get anything through congress. He hasn’t ever accomplished anything.” What is this movement then? How did a ‘nobody’ build the greatest political movement and fundraising machine in the history of the United States? Because his ideas are popular. They have broad appeal. They are just unappealing to the very few who control what goes out on the airwaves and unfortunately influence a wide swath of voters.

How did the Republicans get to be so powerful? There are a few reasons. One of which was by not giving in. Democrats need to take a lesson from that because the Republicans have successfully moved the country to the right by convincing Democrats that they have to appeal to Republicans to get re-elected. After a decade it has filtered down to Democratic voters and sadly they believe that their candidate has to be more right-wing to get elected. The corporate media propaganda machine is strong, my friends.

Another interesting twist of reality is that Joe Biden is going to be the right candidate for the job. There are many reasons why he won’t but I’ll keep this relevant to the topic at hand. In an article from today’s NYT about Texas, Ms. Swartz argues, “Those who are hoping for a purple if not blue Texas live in fear that Mr. Sanders’s name at the top of the ticket will eradicate the gains made in 2018.” This is a common theme about Sanders being bad for down-ballot Dems. They always use the bunk metric of ‘electability’ when they start talking about this theory.

Which brings us to the real facts:  were those democratic victories in 2018 actually “gains”? No, they weren’t. They were a recovery from all the losses that had been incurred by the Democrats during the midterm and presidential elections when Joe Biden was at the top of the ticket as the Vice President. 2010 saw the Democrats suffer some of the worst losses ever, not just at the federal level but also in state and municipal elections. Who was at the top of the ticket then? Not Bernie Sanders. It was the moderate, VP Joe Biden! The losses continued again in 2012 and were particularly brutal in 2014 too, when Republicans had the biggest pickup of seats in the Senate by either party since Clinton & Gore’s first midterm election in 1994.

Does that make you think that a moderate candidate is the key to beating Trump? Is that really how we are going to shift this country back towards the left? No. No it’s not.

The incrementalism that House and Senate Democrats in particular have allowed to occur has resulted in the federal courts being packed with judges that have been vetted and approved by the most pro-corporate Republican think-tanks. Guess who is voting to confirm those judges? Moderate Democrats. Why are they doing that? To try and appeal to people who will never support them. What is that accomplishing? Nothing good for their candidacy (or the Party). It doesn’t get them re-elected; it doesn’t get them any brownie points with the hardcore right-wingers that are now part of the Cult of Trump. Ask Joe Donnelly. Ask Heidi Heitkamp.

Look at what the Republicans did to one of Obama’s Circuit Court nominees, Goodwin Liu, and compare their criticism of him with the bevy of actually unqualified judges that they have all rubber stamped. They held Liu’s confirmation process up for an entire year and eventually the Democrats capitulated and withdrew it, but McConnell changed the rules so that all the Trump District Court nominees are only subjected to two hours of debate. I suggest you look and see how many Trump judges have been confirmed so far vs. Obama and Biden judges in their entire 8 years.

There has been this ever so gradual shift by the Democratic Party to the right because they think that they need to make votes like that to appeal to a segment of voters. What happens is they just end up helping enact Republican policies and then when election time comes around they get slammed by Republican strategists with attack ads for their other “liberal” votes or policy positions. And then they lose!

Don’t forget about Merrick Garland. That’s the reason Trump has two Supreme Court judges under his belt already. Mitch McConnell made up some totally bogus rule and didn’t budge on hearing the nominee and none of the ”moderate” Republicans felt the need to rebuke the leader and Trump was elected and filled the seat with a hardcore Christian zealot who values the CEOs and board members over the employees doing the work. Even Joe Biden, who went behind Harry Reid’s back and cut a deal with McConnell to save the Bush Tax cuts for the 1% couldn’t get Mitch to pay him back with a hearing for Merrick Garland. Imagine that.

The Republicans don’t play that game. They stick to the script. They don’t stray from the party line no matter how ridiculous they look and as a result they have people who have been lifelong democrats talking like they are George Bush Republicans. It is really disappointing to see. Somewhere in the ether David Koch is laughing and somewhere in middle America Charles Koch is rolling in his billions because they had a long-term goal of pushing this country to the right. As an added bonus they were able to accumulate about $100 billion between the two of them in the process. Slowly but surely, the incognizant acquiescence of the establishment Democrats has allowed this conservative shift to happen to the point that they are openly opposing the one truly liberal candidate that can beat Trump, Senator Bernie Sanders. History, my fellows Democrats, is very important to not lose sight of.

Trudeau’s Demand: “the barricades must come down”

(Coastal GasLink Pipeline Map. Photo: APTN File)


Canada’s prime minister Justin Trudeau has called the imbroglio between the Wet’suwet’en nation and Canada a matter to be decided by the rule of law.1 However, the Wet’suwet’en have refused to back down and have defied the British Columbia Supreme Court injunction allowing pipeline work to continue. The Royal Canadian Mounted Police (RCMP) were sent in to enforce the injunction. After that Trudeau seemed to have ducked the issue of the Wet’suwet’en’s opposition to pipelines through their territory until growing solidarity actions shut down ports, railways, bridges, and highways.

On 21 February, Trudeau appeared before the media and claimed,

We have gone through exhausting every possibility for dialogue, for engagement, for finding peaceful solutions to deescalate this every step of the way, and we remain open to that but we are waiting for Indigenous leadership to show that it also understands; the onus is on them. We will be there to discuss, but the barricades must come down. [italics added]

Do Trudeau’s actions match his words? Does the presence of a heavily armed RCMP strike force on Wet’suwet’en territory speak to a peaceful solution every step of the way? Does the RCMP strategizing to shoot Indigenous activists speak to a peaceful solution every step of the way? Does the setting up of RCMP barricades to control road access in and out of Wet’suwet’en territory speak to a peaceful solution every step of the way? Do the arrests of Wet’suwet’en matriarchs speak to a peaceful solution every step of the way?

Trudeau’s questionable phraseology that “we2 are waiting for Indigenous leadership to show that it also understands” comes across as condescending. The Trudeau government’s waiting for a show of understanding, appears to call into question the intellectual capacity of the Indigenous leaders.

Trudeau has a demand: the Indigenous leadership must see to the removal of the barricades. Does such a demand show respect for a nation-to-nation dialogue? The Wet’suwet’en hereditary chiefs likewise have a demand: the RCMP must leave Wet’suwet’en territory before discussions will be entered into. The two sides are at loggerheads.

Ask yourself, who among us would willingly agree to meet a foe with a gun ready to shoot them? Why should the Wet’suwet’en accept meeting anyone while armed RCMP are on their territory?

Does the have the RCMP even have the requisite stature, reputation, and respect to engage with First Nations? The RCMP has admitted to racism against Indigenous peoples, but state that they want to fix the relationship. This admission came after a lurid 2013 report that alleged widespread RCMP abuse of Indigenous women and girls. Perhaps symptomatic of the racism toward Indigenous peoples is highway 16, dubbed the Highway of Tears, a 725-kilometer highway in northern British Columbia where many cases of missing or murdered Indigenous women remain unsolved.3 Amnesty International holds governments accountable for the epidemic of Indigenous women’s deaths. Rewire News was highly critical stating, “The real epidemic is the criminal way in which the crisis of missing and murdered Indigenous women has been historically overlooked.” It pointed a finger at White journalists.

One could continue to provide myriad examples of RCMP malfeasance; however, given that this is the case, can the RCMP’s declaration of intent to rid the RCMP of racism be trusted?

The RCMP is known, from their own utterances, to engage in disinformation and smear campaigns: “Smear campaigns are our specialty.”

The words in the above video were spoken during Operation Wallaby, a tightly controlled media disinformation campaign against the Ts’peten Defenders, launched by the RCMP and political officials.4 It is important to understand that disinformation is not simply a deliberate lie; it is far more sinister, having been declared a crime against humanity and peace at the 2004 Halifax International Symposium on Media and Disinformation.

The settler-colonial court framework that the RCMP operate within has also been alleged to be criminally biased.

On 8 August 1995, dr. Bruce Clark — a lawyer for the Ts’peten Defenders, wrote to RCMP staff sergeant Martin Sarich:

The domestic courts from the Supreme Court of Canada on down are just refusing to address the law because it finds them personally guilty of complicity in treason, fraud and genocide. Those courts have assumed a jurisdiction that clearly and plainly they do not lawfully enjoy, and have exercised the usurped jurisdiction to implement domestic laws which are in fact not laws but crimes.5

Nonetheless, Clark called on the RCMP “for protection against a legal establishment that in willful blindness has set its face against the rule of law.”5

One major media noting the long terrible history of the RCMP vis-à-vis First Nations asked, “The RCMP was created to control Indigenous people. Can that relationship be reset?”

*****
A question I have not heard posed by any media in Canada: Upon what basis does Trudeau claim jurisdiction over Wet’suwet’en territory? How did colonial-settlers — relative newcomers — gain title, legal and political control over a territory where the Wet’suwet’en have lived for millennia? How is it that colonial-settler law takes precedence over Wet’suwet’en law? One can no longer refer to the Doctrine of Discovery; it has been thoroughly discredited.6

Is there an iota of morality backing Trudeau’s professed conviction that the settler-colonialist government has jurisdiction in unceded territory? It seems axiomatic that a first step to resolving this dispute is to settle who has jurisdiction. The Wet’suwet’en believe that this has already been settled in the settler’s own Supreme Court case of Delgamuukw v British Columbia 1997.7

Does Trudeau understand Delgamuukw? Granted, confusion is easy given the notorious pedantry rife within the legal realm.

Nonetheless, Trudeau says he has been pursuing a plan to bring about reconciliation.

I think we have engaged on a new road map over the last five years, one that is a difficult journey of reconciliation, one where we engage as partners with Indigenous communities, leadership, and peoples to move forward on resolving historic land claims, on closing gaps in investments between provincial education systems per students and in Indigenous students, investing in infrastructure, housing, health services, and doing so in ways that puts Indigenous leaders at the center of that path forward. Reconciliation is a journey, and there are going to be difficult moments on that journey because it represents a significant shift in the way Canada works. But our capacity to work together requires us to engage, to yes, recognize the historic wrongs but to be present, fix them, and move forward.

Trudeau’s statement that “we have engaged on… investing in infrastructure, housing, health services” for Indigenous communities addresses a notion that should be thoroughly discredited. Turtle Island has been inhabited by Original Peoples for millennia. It was only after the arrival of Europeans who came seeking gold and other riches, seeking land, seeking conquest, and having transmitted many infectious diseases against which the Original Peoples had little immunity that political control over the land was wrested from the Original Peoples. It calls into question: where did the capital that Trudeau said was being invested into First Nations come from? Was it not the money derived from the land and resources usurped from First Nations? Is it then correct for a thief to say that money returned to the victims of theft is an investment in the victims?

It is difficult to comprehend on a logical or moral basis how colonialists through acts of genocide, such as deliberate dissemination of biological agents,8 starvation,9 cultural genocide,10 police and military force,11 and legal chicanery12 — not only have eluded punishment, but have profited from the genocide and have retained dominance over land that has been inhabited by several other First Nations since time immemorial.13

Does not the racism; dispossession of land; longstanding, drinking water advisories for First Nations;14 disproportionately higher rates of incarceration;15 and poverty among other crimes heaped on Original Peoples by the Canadian state not call for atonement by the settler-colonial society?

On 8 December 2015, Trudeau told First Nation leaders,

[I]t is time for a renewed, nation-to-nation relationship with First Nations peoples, one that understands that the constitutionally guaranteed rights of First Nations in Canada are not an inconvenience but rather a sacred obligation. [italics added]

As Chief Woos of the Wet’suwet’en Grizzly Bear House pointed out: “There is a difference between inconvenience and injustice.”

*****
Many questions lay before Trudeau. Does Trudeau believe that historic wrongs can be fixed by invading police forces? Does he think that reconciliation can be accomplished by having the RCMP invade Wet’suwet’en territory? Do the rights of a company to lay a pipeline trump the human rights of Indigenous peoples?

The imbroglio may continue to simmer as breaking news informs that the BC Environmental Assessment Office has rejected Coastal Gaslink’s technical data report “due to the omission of significant economic, environmental, social and health impacts.”

  1. For more background on Canada’s professed adherence to the rule of law and the Wet’suwet’en’s struggle to maintain title and jurisdiction to their territory, see “Canada’s Respect for the Rule of Law and Its Sacred Obligation to First Nations.”
  2. We being the government that is acting to secure access to Wet’suwet’en territory for a pipeline company.
  3. “No one knows who the first Indigenous girl or woman to vanish along the highway between Prince George and Prince Rupert was, or when it happened. Nor does anyone know how many have gone missing or been murdered since…. The RCMP has put the number of missing or murdered Indigenous women in Canada at about 1,200, with about a thousand of those being victims of homicide. The actual number is likely higher…” In Jessica McDiarmid, Highway of Tears: A True Story of Racism, Indifference and the Pursuit of Justice for Missing and Murdered Indigenous Women and Girls, (Doubleday Canada, 2019): 3.
  4. See full video of Above the Law (Part 2) for how Canada prosecutes the ongoing genocide against and dispossession of First Nations.
  5. Quoted in The Autobiography of Dacajeweiah [Splitting the Sky] John Boncore Hill: From Attica to Gustafsen Lake — Unmasking the Secrets of the Psycho-sexual Energy and the Struggle for Original People’s Title with She Keeps the Door (Sandra Bruderer) (John Pasquale Boncore, 2001). Review.
  6. “You cannot discover lands already inhabited,” is a maxim that permeates an excellent book by Mark Charles and Soong-Chan Rah, Unsettling Truths: The Ongoing Dehumanizing Legacy of the Doctrine of Discovery (InterVarsity Press, 2019). See review.
  7. This writer does not agree that colonial-settler law should take precedence over Indigenous law.
  8. Tom Swanky, The Great Darkening: The True Story of Canada’s “War” of Extermination on the Pacific plus The Tsilhqot’in and other First Nations Resistance (Burnaby, BC: Dragon Heart Enterprises, 2012). Review.
  9. James Daschuk, Clearing the Plains: Disease, Politics of Starvation, and the Loss of Aboriginal Life (University of Regina Press, 2013).
  10. Tamara Starblanket, Suffer the Little Children: Genocide, Indigenous Nations and the Canadian State (Clarity Press, 2018). Review
  11. See Splitting the Sky with She Keeps the Door, The Autobiography of Dacajeweiah, Splitting the Sky, John Boncore Hill: From Attica to Gustafsen Lake (John Pasquale Boncore, 2001).
  12. See Bruce Clark, Ongoing Genocide caused by Judicial Suppression of the “Existing” Aboriginal Rights (2018). Review; Bruce Clark, Justice in Paradise (McGill-Queen’s University Press, 1999).
  13. See Arthur J. Ray, I Have Lived Here Since the World Began: An Illustrated History of Canada’s Native People, Toronto: Key Porter Books, 2005.
  14. See Kim Petersen, “The High Cost of Lousy Water,” The Dominion, 22 November 2006. “Oil Versus Water: Toxic Water Poses Threat to Alberta’s Indigenous Communities,” The Dominion, October 15, 2007. “Boiling Point!The Dominion, 30 July 2008. It must be noted that during the Trudeau government the number of drinking water advisories for First Nations has been whittled the number of drinking water advisories for First nations has been whittled down to 61 and an end date for boil water advisories has been set for March 2021.
  15. See Kim Petersen, “Land and Jail,” The Dominion, Part I, Part II, and Part III.

Railroaded by the Judges: Boris Johnson fails in the UK Supreme Court

It delighted Labour supporters and party apparatchiks who had been falling over each other in murderous ceremony at the party conference in Brighton: Prime Minister Boris Johnson would come to the unwitting rescue with his own version of a grand cock-up.  This involved a now defeated attempt to circumvent parliamentary scrutiny and interference ahead of the Brexit date of October 31 through a prorogation of parliament.

Johnson still felt he was in with a chance, and with good reason.  The UK Constitution is a nebulous muddle of conventions, documents and interpretations, a body of constitutional law without a constitution.  It is a 350-year old absurdity that relies on good behaviour, toe-tipping judges and sensible MPs.  But as Caroline Lucas, Green MP for Brighton Pavilion argues, Britain faces “a Prime Minister with no respect for the rules and a downright contempt for the law.”

Some decisions had favoured the government.  On September 6, London’s Divisional Court held that the advice to the monarch to suspend parliament was distinctly a no-go area for judges, purely a matter for rowdy political assertion.  As Lord Bingham noted in 2005, “The more purely political (in a broad or narrow sense) a question is, the more appropriate it will be for political resolution and the less likely it is to be an appropriate matter for judicial decision.”  It was, however, accepted “that decisions of the Executive are not immune from judicial review merely because they were carried out pursuant to an exercise of the Royal Prerogative”.

In the case of Johnson’s prorogation, it was “impossible for the court to make a legal assessment of whether the duration of the prorogation was excessive by reference to any measure”.  The same decision was also reached in the Belfast High Court, which proved similarly hesitant to step on the toes of the Executive.

The Scottish Court of Session expressed no such reserve, with Lords Carloway, Brodie and Drummond Young unimpressed by a process seemingly designed to stymie parliamentary scrutiny of the Executive.  Tactics deployed in achieving such prorogation might well be considered by a court to be improper.  This, the judges claimed to be the case.

The UK Supreme Court seemed well irritated by the presumptuousness of the Prime Minister’s position.  Courts do not always take kindly to suggestions of incompetence, even in such a fields as political manoeuvring and skulduggery.  In a unanimous judgment, the eleven judges ruled that it was “impossible to conclude, on the evidence which has been put before us, that there had been any reason – let alone good reason – to advise Her Majesty to prorogue Parliament for five weeks”.

The judgment is littered with well-directed grenades of disapproval, starting with the poke that it arose “in circumstances which have never risen before and are unlikely ever to arise again.”  (Judicial optimists, evidently.)  The Prime Minister had a constitutional responsibility “to have regard to all relevant interests, including the interests of Parliament” in advising the monarch.  Nor could the mix between law and politics necessarily render judges incapable of intervening for, going back to 1611, “the King hath no prerogative, but that which the law of the land allows him”.

More juicily, the Supreme Court justices were clear on the point that prorogation, in its effect, prevented the application of ministerial responsibility during that period.  This had the effect of making the PM “unaccountable by Parliament until after a new session of Parliament had commenced”.  This could lead to the case of Parliament “closing the stable door after the horse had bolted.”  (A true equine beast is Brexit proving to be.)

What, then, of the standards in assessing such a prerogative power?  Other courts had been reluctant, claiming vagueness and impossibility.  It was not, in the classic idiosyncrasies of this sceptred isle, scripted.  No matter: “every prerogative power has its limits” to be determined by the court; and such a power had to be exercised in accordance with common law principles and the operation of Parliament itself.  Each branch of government, accordingly, had limits that required curial assessment; it was not for the courts to “shirk that responsibility merely on the ground that the question raised is political in tone or context.”

This led to an almost stirring defence of the court’s role in defending Parliamentary sovereignty, which has been threatened since the 17th century “time and time again” by undue exercises of prerogative powers.  In this case, Parliament’s exercise of legislative authority for the duration it pleased would be subverted by the Executive’s use of the prerogative.  “An unlimited power of prorogation would therefore be incompatible with the legal principles of Parliamentary sovereignty.”  Not could the Executive avoid its own responsibilities to parliament in being scrutinised.

At times, the judgment moves into a tone of discomfort and concern.  One point stands out: the prospects of long prorogation periods.  The longer the duration, the greater the likelihood of tyranny, “that responsible government may be replaced by unaccountable government”.

To the government’s argument that the prorogation was “a proceeding of Parliament” that could never be impugned or challenged by a court, the judges retorted that it was for them to decide, not parliament, how far such privileges extended.  Nor could the prorogation be sensibly termed a parliamentary proceeding, not being a decision of either House of Parliament.

All in all, it followed that Johnson’s advice to the Queen had been unlawful, having “the effect of frustrating or preventing the ability of parliament to carry out its functions without reasonable justification”, thereby rendering the entire process behind prorogation void.

As is in keeping with such matters, disgruntled Tories felt that the irritations of law had intervened with the populist measures of Johnson’s agenda.  The “people” were being muzzled and mocked by the court’s aggrandized constitutional functions.  Jacob Rees-Mogg expressed a distinctly unconservative view in a cabinet call with the prime minister calling the decision a “constitutional coup”.  (He obviously had not read the part of the judgment that the court was performing its functions without offending the separation of powers.)  The Spectator fumed at this “constitutional outrage”.

Brexit Party MEP Belinda de Lucy was similarly snooty on the court’s power on the matter. “We believe the sovereignty lies with people” judicial swerving into matters political suggests a move into “dangerous territory”. (The point missed here is the court’s understanding that Parliament remains, in its form, the arbiter of that sovereignty and should, therefore, not be improperly restricted from its oversight.)

The result of the ruling means that Parliament will return to Westminster for a Wednesday reconvening.  While that institution has not impressed with its vacillations, confusions and periods of paralysis, it remains one worth defending before the demagogues and the shifty, something President Lady Hale and the rest of the judges were more than willing to do.  Should Brexit ever be realised, Parliament might well consider a little bit of constitutional codification.