Atheists should target the Supreme Court

In his 1776 pamphlet Common Sense, Thomas Paine argued that the colonies should replace the English monarchy with a representative democracy. Although he offered few details on how the U.S. constitution should be structured, Paine argued that when deciding on laws, representatives “are supposed to have the same concerns” as the people who elected them, and when voting on laws, should “act in the same manner as (the people) would act were they present.” To ensure the representatives’ “fidelity” to the public, Paine said that Americans should have “elections often,” that is, annual elections as done typically in colonial legislatures. To Paine, “the strength of the government and the happiness of the governed” depends on the people and their representatives having a “common interest.”
Of course, in 1787, when the Constitution was written, the “Founding Fathers” vehemently disagreed with Paine. In Federalist X, James Madison, like other Fathers, clearly objected to democracy as a system that would suppress the rights of minorities (i.e. the wealthy), and made it clear that they were establishing a republic, in which the representatives, using their “wisdom” and “patriotism,” would “refine and enlarge” the public view. Practically, this meant representatives could vote any way they pleased. Michael Parenti (in Democracy for the Few) has documented how this “fathers know best” logic reflected the writers’ class interests, as well as how (despite some improvements) our political system still serves the interests of America’s ruling class.
Indeed, almost every high school student knows that, in writing the Constitution, the Founding Fathers did not institute annual elections. In a system designed to insulate representatives from accountability to the public, only Congressmen—elected every two years—come close to Paine’s ideal of having “elections often.” Now that the 2014 midterm elections are done, atheists might reasonably conclude that the Founding Fathers did us a favor: who, after all, would want to experience our electoral circus every year? And for many atheists, the political priority is to “out” all closet atheists and elect more openly atheist representatives. It makes sense: the Barney Franks of the world should feel free to speak the truth.
Atheists might also argue that in bestowing the Supreme Court with lifetime terms, the Founding Fathers did us another favor. The Court may make decisions without worrying about American public opinion, which is certainly antagonistic to atheists. And in its history, the Court has upheld the free exercise clause of the First Amendment; it has also consistently rejected deist attempts to inject intelligent design into the curricula of public schools. It is a history of decisions made by justices with a diversity of religious backgrounds; atheists might be surprised to know that even seven Unitarians (often quasi-atheists) have served as justices.
But while the Court has supported the First Amendment, its nature has radically changed. After Dwight Eisenhower appointed Earl Warren (which he called “his greatest mistake”) and Nixon appointed Chief Justice Warren Burger (who presided during Roe v Wade), conservative Republicans, smarting from these past “errors,” have created ideological litmus tests that any person must pass even to be considered a nominee. Objectivity, experience and legal scholarship no longer matter: Clarence Thomas—a second-rate, dissembling African-American—was nominated to replace Thurgood Marshall because he is an extreme conservative who “correctly” opposes abortion, affirmative action, and almost every other progressive measure. To Republicans it doesn’t matter that Thomas’s views don’t represent the vast majority of African-Americans. Nor do Republicans care that the Court lacks religious diversity: six Catholics sit on the Court because most of them are staunch conservatives. Ideological litmus tests have so become the “norm” that when activists suggested Ruth Bader Ginsburg step down so that Barack Obama could appoint her successor before Republicans took the Senate, she refused on the (self-serving) grounds that Republicans would filibuster any liberal replacement nominee advanced by Obama.
The Court’s radical change threatens atheists. The problem is not just its lack of diversity or the presence of six Catholics. (William Brennan, a Catholic, demonstrated intellectual independence in his days on the Warren Court.) Rather, the problem is Republican ideological litmus tests have given us a narrowly-educated court with little understanding of science or reality. The poster child, of course, is Antonin Scalia, who, contrary to recent scholarship (see Bruce Allen Murphy’s Scalia: A Court of One), still believes that his opinions derive not from his religious beliefs but from his own careful reading of the Constitution and its authors’ real intentions. One does not need to read Murphy’s excellent examples of Scalia’s Bible-based opinions. To any psychology student familiar with top-down processing, or to any student who has studied the ambiguous words of the Constitution, Scalia’s self-serving “originalist” argument is laughable, as are his recent words about Satan’s lurking presence, words which (like his other superstitious beliefs) reflect Scalia’s ignorance of scientific cosmology, and, for that matter, his ignorance of the common Catholic view that human “selfishness and apathy” (U.S. Catholic, September 2014, p.46), not Satan, is the source of “evil.”
As Dahlia Lithwick has noted, “Scalia represents the living embodiment of the besieged religious dissenter, the ‘Christian as cretin’... the man who believes that the only remaining front in the American war for civil rights is the battle to defend religion. Two decades ago, nobody could have imagined the five members of the Court would align themselves with that posture.” 
But aligned themselves they have. In the past, religion used to be a taboo subject, but now Court members are not only talking openly about it but also clearly supporting Scalia’s view (expressed in a recent speech at Colorado Christian University) that “the First Amendment explicitly favors religion,” that forbidding religion in the public sphere is “utterly absurd,” and that the Court must “fight” secularists insisting on a strict separation of church and state. To this end, the Court has already struck several blows: in Town of Greece v. Galloway, it ruled that a New York town could open legislative sessions with sectarian prayers. In its infamous Hobby Lobby decision, the court permitted corporations with religious objections to deny birth control to its employees. According to Lyle Denniston, the “dean” of court journalists, the “ludicrous” decision was probably influenced by Samuel Alito’s Catholicism, as was Justice Kennedy’s opinion that upheld partial-birth abortion bans in Gonzales vs Carhart. With appellate courts divided, the Court will soon rule on gay marriage, and it is highly likely that it will permit some states to forbid gay marriage by finding some Constitutional pretext (such as the Tenth Amendment) as a cover for their religious objections.
The Court’s religious ideologues have wrought even wider damage to our nation. Decisions such as Bush vs Gore, Citizens United, and Shelby County vs Holder have in Wendy Weiser’s words, rewritten “the ground rules of our democracy,” and strengthened the stranglehold of corporations over our failing political system. As Naomi Klein has said, “... attempts to fix glaring fundamental flaws in the system have failed because large corporations wield far too much political power—a power exerted through corporate campaign contributions, many of them secret; through almost unfettered access to regulators via their lobbyists; through the notorious revolving door between business and government; as well as through the ‘free speech’ rights these corporations have been granted by the U.S. Supreme Court” (This Changes Everything, p. 150)
Unregulated capitalism is devastating on many levels; in fact, unless our government can say “no” to the fossil fuel industry, climate change may well destroy humanity (Naomi Klein, This ChangesEverything). In the short run, the Court’s ideologues may do their part by eviscerating ObamaCare, and, in the process, kill vulnerable Americans needing health care. 
What can atheists do to effect change? With the Supreme Court’s approval rating at a dismal 30%, perhaps we should listen to those climate scientists who are recommending that we take to the streets in order to block production and distribution in the fossil fuels industry. Mass demonstrations could also demand that our legislators democratize the Court by proposing a Constitutional amendment establishing term limits for Court appointees. Such an amendment is consistent not only with Paine’s Common Sense but also with the Republicans’ 1994 “Contract with America.” With many Court members on the verge of retirement, a Hillary Clinton win in 2016 might give Republicans reason to consider such an amendment, which can also be proposed without offending the moguls who fund their campaigns.
Atheists who cannot stomach revolution have alternatives. has an online petition calling for term limits on the Supreme Court. Voters can demand that Congress finally act on past proposals to establish nationwide popular initiatives or raise consciousness by putting the question of term limits on state and local ballots. Lesser measures—such as letters/petitions demanding the end to ideological litmus tests—may be worthwhile.
But activists should remember that, in a speech to students opposed to high taxes, Antonin Scalia has himself recommended revolution. Surely the Court’s recent decisions—decisions which threaten atheists and the nation as a whole—can also be answered with a revolution.


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