[ What exactly does the Supreme Court recommend we do about the
most dangerous crisis our species has ever faced?]
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A MAJOR QUESTION FOR A SMOKY INDEPENDENCE DAY  
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Bill McKibben
July 4, 2023
Common Dreams
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_ What exactly does the Supreme Court recommend we do about the most
dangerous crisis our species has ever faced? _

The U.S. Capitol under hazy skies in Washington, D.C, on June 28,
2023 as some 80 million people from the Midwest to the East Coast of
the U.S. are under air quality alerts due to smoke from Canadian
wildfires sweeping the nation., Andrew Caballero-Reynolds/AFP via
Getty Images)

 

The original 13 states have been largely blanketed in smoke this
holiday weekend—the ongoing Canadian fires, which we now learn may
burn till the snow falls in October, are changing the very quality of
summer sunlight to something grayed-out and menacing. But it’s
nothing compared to the smokescreen coming from D.C.

The big Supreme Court decisions of recent days—allowing
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bigotry, ending
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affirmative action, and preventing
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the White House from expunging student debt—are venal and mean. But
they are also something else: an effort to make sure that the more
functional politics of an earlier era can’t interfere with the
bought-and-paid-for nihilism of the present.

I wrote about a lovely time machine
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a few days ago—the lithium-iron battery that lets you store the
afternoon’s sun to provide light and heat for the night to come. But
the gang of six justices now recasting our nation’s politics have
invented a time machine of their own, one that lets you go back in
history and erase goodness.

The theory that undergirded the student debt
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one the Court used to gut the Clean Air Act last summer—something
they’ve ginned up out of thin air called the Major Questions
Doctrine. It holds that if the government wants to do something
important, Congress has to spell out every detail: It’s not enough
that Congress gave a mandate to protect clean air, it has to specify
precisely what pollutants in what amounts. In the case of student
debt, the Congress, reacting to 9/11, allowed the secretary of
education to henceforth alter student debt payments in times of
emergency, an authority the Biden White House seized on, quite
sensibly, during the pandemic. The timing of those Congressional
actions is important.

The Clean Air Act was adopted in 1971, back when we actually had a
fairly effective Congress—among other things, it also passed the
Clean Water Act (itself gutted
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earlier this term) and the Endangered Species Act, and set up the
Environmental Protection Agency; these represented the powerful
organizing of environmentalists, which shifted the zeitgeist so
dramatically that bipartisan majorities fell in behind them; they’ve
been weakened some since but never scrapped, because the public
(unlike the billionaire class) essentially supports them. As for
student loans, our politics had begun to break down by 2001, but at
least an emergency like 9/11 could summon up some of the old spirit.

Now, after the Koch Brothers and Rupert Murdoch
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have all but broken the back of our democracy, the Supreme Court
justices have taken time out from their Alaskan fishing trips to go
back and try to eradicate those better moments in our history. As
Elana Kagan pointed out in her dissent on the student loans case,
it’s nothing more than an exercise of raw power:

“From the first page to the last, today’s opinion departs from the
demands of judicial restraint. At the behest of a party that has
suffered no injury, the majority decides a contested public policy
issue properly belonging to the politically accountable branches and
the people they represent.

“That is a major problem not just for governance, but for democracy
too. Congress is of course a democratic institution; it responds, even
if imperfectly, to the preferences of American voters. And agency
officials, though not themselves elected, serve a President with the
broadest of all political constituencies. But this Court? It is, by
design, as detached as possible from the body politic. That is why the
Court is supposed to stick to its business—to decide only cases and
controversies, and to stay away from making this Nation’s policy
about subjects like student-loan relief.

“The court exercises authority it does not have. It violates the
Constitution.”

The anti-gay bigotry and affirmative action cases did not depend on
the Major Questions doctrine, but they were decided in the same spirit
of erasing history. After many years of spirited organizing, for
instance, Colorado’s legislature in 2008 added “sexual
orientation” to the list of things businesses couldn’t
discriminate against. Now the court has ruled, in essence, that they
were wrong—that if you can claim your religion is sufficiently
hateful, it gives you an out and you can go back to being a bigot.

There’s something uniquely painful about surrendering ground you
thought you had gained. So here’s my Major Question this smoky
Independence Day:

_What exactly does the Supreme Court recommend we do about the most
dangerous crisis our species has ever faced? And I don’t mean the
grave danger of gay people needing a wedding website._

Or here’s how Martin Luther King put his Major Question, in
Montgomery in 1965 at the end of the eight-day march from Selma:
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_I know you are asking today, ‘_How long will it take?_’
__Somebody's asking, ‘_How long will prejudice blind the visions of
men?_’ _

The Supreme Court’s answers are: We will do nothing about our
problems, and it will take forever.

The judicial slaughter of our better angels is an affront to everyone
who did all that work to pass these laws decades ago. I know many of
those people through my work at Third Act [[link removed]], and
it is of course painful to us. But we also know that we have the
ability to organize again—that having won these battles once it may
still be within our power to do so again. The irreplaceable Rebecca
Solnit, writing
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yesterday in _The Guardian_, puts it well:

Memory is a superpower, because memory of how these situations changed
is a memory of our victories and our power. Each of these victories
happened both through the specifics of campaigns to change legislation
but also through changing the public imagination. The supreme court
can dismantle the legislation but they cannot touch the beliefs and
values. We still believe in these rights.

I confess that there are moments when my faith slips; it should not be
this hard. And I do not know if the spirit of cynicism and nihilism
embraced by everyone from Donald Trump to RFK Jr. won’t triumph this
time. But many of us will keep writing and working and organizing, and
we will do it in the belief that most people are mostly good and that
over time that goodness will tell—the belief that even the
Federalist Society can’t indefinitely hold down the human spirit.
Here’s a great essay
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from one of my colleagues about figuring out they were non-binary in
their 60s, and here’s the other piece of reporting that’s kept me
going this weekend: an account
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of the current Miss Texas Averie Bishop at the end of her year-long
reign.

The perch has normally been occupied by apolitical women, but in
Bishop’s case, the pageant queen has used it to push back against
the far-right policies supported by Texas’s White male leaders.

Her platform—diversity and inclusion—represents much of what Texas
has been outlawing. In June alone, Gov. Greg Abbott (R) signed laws
banning diversity offices and training
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at state universities, “sexually explicit” books at public
schools, drag shows and gender-affirming care for youths
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During some high school visits, Bishop asked students to raise their
hands and share communities they identifiedwith. She said students
often mentioned the LGBTQ community.

“They’re going to see a completely different Texas in the next
decade compared to the one that we have now,” Bishop said.

Let us hope that she is right, and let us make it so.

© 2022 Bill McKibben
 
Bill McKibben is the Schumann Distinguished Scholar at Middlebury
College and co-founder of 350.org and ThirdAct.org.

* Climate Emergency; Student Debt; Supreme Court; LGBQT rights;
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