THE SUPREME COURTS AND THE COUNTER-REVOLUTION

Both the United States Supreme Court and the South Carolina Supreme Court have become respondents in the anti-democratic counter-revolution going on in contemporary America. This is a dark turn in American history. Courts are supposed to be above politics. They are supposed to be impartial. In my view, the recent rulings of SCOTUS and SCSC indicate they are neither above politics nor impartial.

A long-standing guide of jurisprudence is stare decisis. This is the principle that courts must follow precedence in deciding cases, that is, they must follow earlier court decisions which had become established law. Find more about this concept HERE . If the court does not follow this principle, its decisions are no more than judicial fiat, or whim. In my opinion, this is what we have now both in the U.S. and in SC. The courts have ignored stare decisis and are ruling by fiat. This is highly dangerous for jurisprudence and by extension for the whole fabric of the civic society which rests on the shared respect for settled law. The breakdown of law leads to chaos, and that leads to anarchy. No civic state can survive such.

First, let's look at what the courts have done. SCOTUS overturned the Roe (1973) decision and revoked what had been in stare decisis a woman's constitutional right to abortion. Roe had been settled law for nearly a half-century and had been upheld time and again by federal courts. As for SCSC, it overturned its 2017 decision in the Episcopal church case. The 2017 decision had become the settled law of the land. On Apr. 20, 2022, however, the SCSC issued a "Revised Opinion" which rejected the majority decision of 2017 and replaced it with a new configuration of property ownership. The effect of the 2022 "Revision" was to remove Episcopal Church ownership of all the large Parishes (save one) of the old diocese.

Next, let's turn to the question of why the courts did what they did. It is not difficult to see. In fact, it is quite clear and simple. In recent years, reactionary conservatives have gained a 6-3 majority on the U.S. Supreme Court. President Trump selected three justices, all of which indicated they would recognize Roe as settled law in their confirmation hearings. In fact, when the time came, they all voted in the opposite. The present court has made it perfectly clear it is out to activate the repeal of the Great Democratic Revolution as much as it can. Having revoked women's rights to control their own bodies, they are now aiming at repealing rights to contraceptives and to same-sex marriage. No doubt there will be many more instances where personal freedom and human rights will be rolled back. 

In South Carolina, the state supreme court is a political construct. All justices are elected by the state assembly for ten-year terms. Republicans have a super majority in both houses of the state legislature. South Carolina is one of only two states in the U.S. in which state judges/justices are chosen by the state legislature (VA is the other). So, in SC, in order for a justice to get on the supreme court, he or she must gain the majority vote of a highly conservative legislature. 

The schism in South Carolina is very much about the culture war. For decades, the Episcopal Church had championed equal rights and inclusion of blacks, women, and gays in the life of the church. The group that staged the schism in 2012 did so expressly to keep gays and women from equality and inclusion. So, in SC, the Episcopal diocese continues the democratic revolution as seen in the national church while the secessionists (calling themselves the "Anglicans") resolved to support the anti-democratic counter-revolution. Nothing shows this better than how their respective denominations reacted to the recent revocation of the Roe decision. The TEC leadership was GRIEF-STRICKEN while the ACNA bishops REJOICED .

The new actions of the SC and national supreme courts can best be understood in the perspective of the culture war now raging in America. This, too, is not difficult to understand. The culture war is a democratic revolution facing a backlash, or counter-revolution. The democratic revolution in America sprang up after the Second World War to enact a sweeping range of reforms for elements historically marginalized or ignored. Most notably, African Americans, women, and homosexuals were granted equality and inclusion in the power structures of the society that had been heretofore monopolized by white men who had always considered American to be "their" land. By 1968, a coalition had formed to oppose the democratic revolution. It was composed basically of men, white southerners, and white evangelical Christians. Their goal was to preserve the traditional white male power structures. This meant the democratic revolution was now opposed by a reactionary, or counter-revolutionary movement. This has been the culture war of American since 1968. 

The democratic revolution reached a symbolic high point with the election, and reelection, of an African American man as president (2008, 2012) and the legalization of same-sex marriage (2015). While monumental for democracy, these also energized the reactionaries greatly. Long story short, the reactionaries disabled reforms going through Congress by freezing the Senate while at the same time gaining control of most of the state governments and securing most of the seats on SCOTUS. Hence, states are passing a long list of anti-democratic legislation while SCOTUS is busy rolling back human rights the courts had once granted. The counter-revolution has proven to be a far more formidable force than one might have imagined even a couple of decades ago.

As we now know, the counter-revolution had an extremely anti-democratic and potentially catastrophic side-effect. President Trump and his more virulent supporters attempted a coup d'état. They came very close to pulling it off. No president in American history had every tried to overthrow the government. Even though the reactionaries failed that time, they may not fail the next time their candidate loses an election and refuses to concede.

And so, we have to put the schism and the actions of the courts in the broader context of contemporary American life. The American people are now engaged in an escalating culture war. It will determine whether the nation continues on in its democratic revolution and becomes more and more a well-functioning pluralistic society of freedom and equality for all or whether the nation reverts to its pre-democratic revolution past and secures power for the white man. The first path will be majoritarian, the second minoritarian. The first would be democratic, the second fascist.

Will the United States Constitution survive this culture war? I suspect it will. It survived a cataclysmic civil war, after all. However, I also believe we are in for a far harder struggle to keep it that I had imagined a few years ago. 

No one has had a harder struggle for democracy that the French. In 1793, they declared a democratic republic, the first in modern western civilization. They granted universal manhood suffrage and proclaimed an egalitarian society and government. So, in just four years they went from absolute monarchy to a democratic republic. However, the ideal was not realized anytime soon. In the years to come, France went through two emperors, two kings, three bloody revolutions, numerous foreign wars, to wind up eighty years later where they had started in 1793, a democratic republic, where they are today.

I do not think we will have that kind of instability. We have had a relatively successful constitutional government for over two hundred years. However, I do think we are in for a good deal of strife while the counter-revolution runs its course.

I do think, too, this helps us understand why there was a schism in SC and why the courts have acted as they have. Everything has to be put in context to understand its meaning.

This is my take on what is happening now. What's yours?