Can Marty McFly Save America from the Supreme Court?

When Michael J. Fox played guitar with Coldplay at Glastonbury recently, he became a metaphor for the only thing that can save a nation on the ropes.

Michael J. Fox in the 1985 movie Back to the Future via Universal Pictures.

Pull out your red down-filled puffer vests, boys and girls. It’s time to make like Michael J. Fox in Back to the Future if you want to save America from an overtly partisan Supreme Court whose recent presidential immunity decision is the legal equivalent of Parkinson’s Disease.

You know what Parkinson’s is, don’t you? It’s a “a long-term neurodegenerative disease of mainly the central nervous system that affects both the motor and non-motor systems of the body.”¹

Parkinson’s is the disease from which Michael J. Fox has suffered for the past 33 years—since 1991 when he was only 30 years old.

If you want to know what this illness does to a human being, just look at the photographs of Fox over the years. Despite a valiant and heroic effort, it has taken a terrible toll on his life.

But through it all, his spirit has remained defiant and strong. The actor is only 5 feet, 4 inches tall—a veritable David against a Goliath illness for which there is no cure (though medicines can help control its symptoms).

The United States now suffers from a similar attack

on its central nervous system. An extremist so-called “originalism” wing of political actors, masquerading as conservatives, has seized control of the highest court in the land.

In just a few years, this court has gutted the Voting Rights Act, allowed unlimited corporate campaign contributions, and taken away the right to abortion which had been established law for 50 years. It has severely limited the ability of the executive branch to issue regulations, and prioritized religion over the Establishment Clause.

Rule for the ages

And this year on the very last day of its term, it delivered what Justice Neil Gorsuch called its “rule for the ages,” granting presidents immunity for “official acts” performed while in office. Written by Chief Justice John Roberts, the court’s decision:

• Removed part of the January 6th indictment against Donald Trump’s effort to overturn the 2020 election.

• It said the president is entitled to the presumption that he is acting in an official capacity.

• With respect to his core constitutional powers, the court ruled that the president’s immunity must be absolute.

• It said that an official act cannot be introduced as evidence during trial to support an allegation of private criminal conduct.

• In other words, if a president takes a bribe to make someone an ambassador, the appointment cannot be used to prove bribery in court.

• Nor can motive be taken into account. To do so would be “highly intrusive,” the court said.

The court did not give Trump everything he wanted

But it certainly gave him more power than any president in history. Then, the Supreme Court sent the case back to the lower court to decide which of Trump’s acts in the January 6th case were official and which were not. Knowing full well that if Trump disagrees with any lower-court decision, he can appeal. Which means the Supreme Court won’t be able to take up the question again until its next session in October, if at all.

Let’s keep the public in the dark

Clearly, this Supreme Court did not want low-information voters —decent, hardworking people raising families and too busy to follow the news closely—to hear the damning January 6th evidence and testimony against Trump during trial.

This case was originally scheduled for March. Realizing that an effort to overthrow the results of the 2020 election might have some bearing on the 2024 election, the court could have expedited its handling of the case. Instead, it withheld its ruling until the very last day of its term, even though the six right-wing justices signaled how they would vote as early as oral arguments in April 2024.

Back to the future

Since 1789, the Supreme Court has issued more than 30 thousand rulings. Usually, the court’s decisions are based on legal precedent. Sometimes public opinion and the makeup of the court itself play a role in the decisions. But sometimes the court is openly partisan.

It is not true, as some claim, that this partisanship is entirely the fault of Senate Majority Leader Harry Reid, who supposedly “broke the court” by using the so-called nuclear option in 2013 to get Barack Obama’s judicial appointments passed via simple majority. Reid’s maneuver specifically omitted the Supreme Court.

It was Mitch McConnell who took the nuclear option to the next level, extending approval by simple majority vote to the Supreme Court—instead of the 60-vote super majority, which had traditionally protected the court from extreme partisanship for more than 200 years. Thus, during the Trump administration Republicans were able appoint Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, ensuring today’s openly partisan right-wing majority.

These arguments make easy talking points for pundits.

But the truth is, the court bared its openly partisan teeth long before Harry Reid and Mitch McConnell went nuclear. That happened in Bush v. Gore during the 2000 presidential election. In was in the middle of the night that year that the court voted 5-4 to end the Florida recount and hand the election to George W. Bush.

In order to fix a problem this big, you could put on your red puffer vest and go back to the future. You’d need to restart the 2020 Florida recount and undo Mitch McConnell’s use of the nuclear option—as well as Harry Reid’s.

But you’d also need to go back even further

to 1987 when Ronald Reagan’s appointment of conservative jurist Robert Bork was not approved by the Senate. Because that’s when Mitch McConnell decided to get his revenge.

It would take nearly three decades for him to make good on his pledge, but he finally succeeded in packing the court with Gorsuch, Kavanaugh, and Barrett during the Trump administration—after blocking Merrick Garland’s appointment during the Obama years.

Since Back to the Future is fiction, there’s no chance of undoing all this damage and fixing the broken Supreme Court. So making like Marty McFly will only help if you’re wearing a virtual reality headset.

But if McFly won’t fly, maybe Michael J. Fox himself can be of help

Because at 63 years old, after suffering from Parkinson’s for three decades, the actor has never thrown in the towel. Instead of giving up, he keeps fighting. He can no longer play guitar the way he did in the movie. ²

But 25 years after his Parkinson’s diagnosis, he picked up his guitar and joined Coldplay onstage in 2016 for a rousing rendition of Johnny B. Goode.

And this past weekend, Fox joined Coldplay again at the Glastonbury concert in the UK. This time he was in a wheelchair. And maybe he couldn’t play that guitar quite the same as he did in 2016 or in the 1985 movie. But he played it. He played “Fix You.”

And isn’t “Fix You” exactly the song we need right now.

We need to fix ourselves and our broken institutions. We need to fix the decisions handed down by an openly partisan court by not allowing Donald Trump to return to the White House where he could use his newfound immunity in the nefarious ways stated by Justice Sonya Sotomayor in her scathing dissent:

The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution…

Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.

Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today.

This was not just a bad decision. It was a scandalous decision

The Supreme Court has been wrong before. Wrong in Dred Scott when it said enslaved people were not citizens and not entitled to protection from the federal government. Wrong in Plessy v. Ferguson when it upheld separate but equal. Wrong in 1918, when it struck down a federal law regulating child labor.

It was wrong in 1940 when it ruled against two children from Jehovah Witness families who refused to salute the flag because it violated their religion. And it was wrong in Betts v. Brady (1942) when it said states were not required to assign counsel to indigent defendants in felony trials.

But more recently than that

the Supreme Court was wrong in the 1986 Bowers v. Hardwick decision when it said “the Constitution does not confer a fundamental right to engage in sodomy.”

Although all of these wrong-headed decisions were reversed eventually, it takes years, sometimes decades for that to happen.

And even though the court reversed its sodomy ruling in Lawrence v. Texas back in 2003, that reversal was based on the now endangered “implied right to privacy,” a zone of privacy covered by the First, Third, Fourth, Fifth, Ninth, and 14th Amendments.

But just when you thought you could rely on privacy—this extremist right-wing court struck down Roe v. Wade. In the written decision, Justice Alito argued that there is no specific language in the Constitution guaranteeing a right to privacy.

Back door man

Clarence Thomas not only agreed in a concurring opinion but signaled that this court might wish to reconsider other right-to-privacy decisions like contraception, gay marriage, and even the Lawrence sodomy decision in the future.

What looks like sodomy to some people is called oral or anal sex by others. Will this court go back to criminalizing what happens in the bedroom next? If it had the audacity to come for your uterus. Why shouldn’t it look elsewhere on your body for its next outrageous decision.

Apparently, this is what “originalism” means

You go by the letter of the law instead of the intent of the law. You ignore decades of precedent. And sometimes you just make up stuff without regard to history or established law—because maybe you feel that the man who appointed you to a lifetime job should be immune from criminal prosecution.

But don’t take my word for it, read The Originalism Trap, by Madiba K. Dennie, former counsel for the Brennan Center for Justice.

If we can’t make like Marty McFly let’s make like Michael J. Fox

And not give up. The Supreme Court is the highest court in the land. But a government by, for, and of the people is higher even than that. At this hour—as we celebrate another Fourth of July—our 247-year experiment with democracy is on the ropes.

This is no time to throw in the towel. Let’s sing along with Michael J. Fox and Coldplay and fix this. By going to the polls and voting like your life, the lives of your children, and the very future of this nation depend on it. Because they do.

©2024 Andrew Jazprose Hill

Thanks for reading/listening.

1. Wikipedia. Parkinson’s Disease definition and full article.

2. Yes. Michael J. Fox really did play “Johnny B. Goode” in the film, but his playing was synced to another rendition by guitarist Tim May.