THE COURTS AND THE LAW

News broke today that the U.S. Supreme Court is about to issue a decision overturning Roe v. Wade after nearly a half-century when it was the law of the land. This will remove the constitutional protection of a woman's right to control her own body and will turn over to the states the control over abortion. Most states have signaled that they will, in effect,  end abortion rights.

In the big picture, this is a major victory for the anti-democratic reactionary forces in the counter-revolution against the Great Democratic Revolution of the Twentieth Century. It is a huge blow against human rights for women.

What is going on in Washington is not disconnected to what is happening in South Carolina. In SC, a national religious institution has been blocked in its effort to govern itself. In SC, state property laws take precedence over the freedom of religion guaranteed in the First Amendment. It just so happens that the church in question is also a highly visible champion of equality and inclusion of homosexuals and women. These court cases all boil down to human rights.

SCOTUS is upending settled law (Roe v. Wade) in order to remove rights from women. The South Carolina Supreme Court revoked settled law (the SCSC decision of Aug. 2, 2017) and found that 15 more parishes were beyond ownership of the Episcopal Church. The only significant difference between the SCSC opinion of 2017 and that of April 20, 2022 is that most of the large parishes are excused from the governance of the denomination of which they had been a part. Twenty-nine parishes as property of TEC suddenly became 14. Coincidence that the big parishes got off the hook? I wonder.

So, both the U.S. and the SC supreme courts have overturned settled law and in so doing are potentially weakening human rights. For years, Republican presidents and Senates have been packing federal courts with young ideological conservatives. No one can be surprised at what SCOTUS is now doing. In South Carolina, all state judges and justices are elected by the state legislature for terms. This makes them in a way political. SC is virtually a one-party state controlled by conservatives.

Here, we are primarily concerned about the schism in South Carolina. In 2017, the SCSC ruled by three majority (3-2) decisions that 29 of the 36 parishes in question belonged to the Episcopal Church. In 2022, the SCSC ruled that 14 of the 36 parishes in question belonged to TEC. The SCSC replaced a final law with a new one that just happened to be a boon to the anti-human rights side.

Replacing one majority opinion with a new one, and in just five years, could portend tremendous danger for the rule of law in South Carolina. Here is what it could mean: 

---A majority decision is not final law, not even one in which rehearing was denied and appeal to SCOTUS failed.

---A Remittitur is not a Remittitur. It is only a suggestion to the lower court. It can be treated as a Remand at the discretion of the lower court.

---A lower court can ignore a majority opinion and a Remittitur, relitigate the issues and issue a new decision contradicting a SCSC majority opinion.

---If an SCSC decision contains more than one majority opinion, the lower court can pick and choose which ones it will recognize and implement.

---Using the same evidence in the same case, the SCSC can reverse an earlier majority decision after it had become settled law.

Moreover, having set these precedents, what is to keep the circuit court from doing the same again? Even if the SCSC gives an explicit Remittitur, why could not the lower judge regard it the same, or at the least kill it by shelving it indefinitely?

American society is bound by a social contract. This rests on rules, or laws. The laws that bind us require definition and enforcement. Courts exist to interpret the law and order enforcement. Reversing, or even changing "final" court decisions in order to reduce freedom and democratic rights is dangerous to the rather precarious equilibrium upon which our social compact rests. This is flirting with chaos and anarchy.

For years, the anti-democratic reactionaries tried to use our institutions to fight back against the reforms of the Great Democratic Revolution. On the whole, they failed. Recently they have moved to attacking the institutions that produced the democratic revolution. In the Episcopal Church, the backlash against rights led to five schisms. The politicization of the courts will remove the last neutral institutions that might have kept the social equilibrium. The attempted coup of Jan. 6, 2021 should have been a walk-up call that there are lots of people out there who are willing to overthrow our institutions to get their way. 

The reactionaries have a long agenda which they will no doubt try to enact on the heels of overturning abortion rights. Among others, they are out to overthrow marriage equality, voting rights for minorities, rights of the transgendered, and rights of immigrants. Overturning Roe v. Wade will open the flood gate for a sea of anti-democratic and anti-human rights legislation. And, if we are overturning settled law, what about overturning Brown v. Board and return to segregated schools? Just think about what could happen in this fury of reaction against democracy. 

In the long run, democracy and rights will prevail but only after a very difficult and bitter fight. That is the story of what is happening in the federal and state supreme courts today. And, in a way, this is the story of the schism in South Carolina.

This is my opinion. What is yours? Share with us at the email address above.