Official portrait of Sandra Day O'Connor
Today (March 26, 2025) marks the 95th anniversary of Sandra Day O'Connor's birth. O'Connor, who died in 2023, is noted for becoming the first woman on the U.S. Supreme Court, where she served from 1981 to 2006. Shortly before her retirement, she provided dissents in the landmark cases Gonzales v. Raich and Kelo v. New London.
Raich was about a federal prosecution of someone who grew marijuana in her own home for personal medical use, which was legal in her state of California but against federal law. The question was whether the law was unconstitutional by exceeding Congress's power to regulate commerce "among the states." Remember, this was an activity that took place within a state and in which there was no buying or selling.
The Court ruled 6-3 in favor of the Feds. In her dissent, however, O'Connor noted, "the Court’s definition of economic activity for purposes of Commerce Clause jurisprudence threatens to sweep all of productive human activity into federal regulatory reach."
Kelo was about whether a city could use eminent domain to transfer land from one private owner to another, so long as it promoted "economic development." The Court ruled 5-4 in favor of this.
The Fifth Amendment, however, states that taking private property could only be for "public use. O'Connor again wrote the dissent. Here's the opening paragraph:
Today the Court abandons this long-held, basic limitation on government power. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded—i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public—in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings “for public use” is to wash out any distinction between private and public use of property—and thereby effectively to delete the words “for public use” from the Takings Clause of the Fifth Amendment.
When Kelo and Raich were decided in June 2005, the United States became a different country than in 1998. That was before NATO, what I had previously thought was a defensive alliance, launched an illegal war of aggression against Yugoslavia. Then Bush v. Gore, then the open-ended War on Terror, then the Patriot Act, then the War on Iraq.
With the War on Terror as an excuse, the federal government gave itself new, unprecedented powers to make way for a fascist country. The Feds can monitor our communications, banking, and travel. Militarism is heavily promoted and the wars are endless. Fascism in the economic sense was made apparent in the bailouts of Big Business in the late 00s.
However, Raich and Kelo are also potential tools of fascism. Thanks to these decisions, just about anything can be criminalized at the federal level. Just about any piece of land can be taken from the little guy and handed over to the big guy.
But what do I mean by Fascism?
A recent post on the "I Acknowledge Psychedelic Class Warfare Exists" Facebook page, the (unknown) author says:
[Fascism is about] returning to greatness by purging the body politic of anything that isn't nationalism.
Because it's opportunistic, it isn't a coherent single idea but a constellation of historically and locally defined ideologies that are both distinct and interrelated.
Fascism isn't a belief. It's a political project people do.
Ex. Donald trump doesn't believe in fascism. But he does constantly do it.
[...]
Because it's syncretic, fascism takes in a lot of influences which are not themselves fascist.
On a follow-up post, the writer says:
When I started studying the rising fascism in the west about a decade ago I heard, mostly from decolonial and third worldist thinkers that fascism was fundamentally settler colonialism practiced by and on settler nations.
I was skeptical.
But the most I've learned about the history of of European imperialism and colonies, the more right this view appears.
In the US for example, the freedom in the constitution was explicitly for white men who owned property (mostly, it was left to the states).
It took until 1856 for white men to get full suffrage.
It took more than another hundred years to reach universal suffrage for indigenous people, who were the last to be granted legal suffrage. Voter suppression and informal barriers to voting remain a major problem.
The lost greatness fascism seeks to restore is the empire, which in modern times almost inevitably means settler colonialism.
This is the machine that unifies the disparate fascisms in their thorny complexity.
If I understand the meaning here, it is that rich whites took the land. For reasons that probably made practical sense for them, the heirs of the original landowners, the old-money "Establishment," liberalized the political system. Today, however, new generations of rich guys and religious allies who were always excluded from the inner circles of power have crashed into the system and taken it over.
They want to "re-settle" the country. That is, they want to minimize and marginalize all who don't share their vision and values. Immigrants return to their native countries. Minorities back to ghettos or to prisons. Disenfranchise as many as possible.
Imagine a legal immigrant using medical marijuana in California or in any of the 38 states where it is now legal. It is still illegal on the federal level. Thanks to Raich and Trump's policies, she may be raided and deported. "Raich'ed" out of the country.
Don't expect drug law reform on the federal level. Instead, convict and disenfranchise as many as you can, using any law on the books, no matter how antiquated.
Imagine using eminent domain to target minority homeowners, who must hand over their land to a federal contractor who promises to create jobs. Kelo'ed out of town.
Did the Supreme Court promote a fascist agenda in its Kelo and Raich decisions? Not consciously: most who ruled in favor considered themselves "liberal" or "progressive." Nevertheless, the sacrifice of human rights for the sake of government economic and social plans is not not fascist. Certainly closer to fascism than anti-fascism.
When legislators, Presidents, or judges diminish personal freedom for the sake of the "public good," they can't turn around and say they didn't mean the fascist definition of the public good. Every time a vote goes against personal freedom, the fascists win, even when the fascists aren't in power. They will inherit the same tools and precedents once they do get power.
Justice O'Connor was involved in plenty of bad Supreme Court decisions herself. But her finest hour was in her last year on the bench with the Kelo and Raich dissents.
James Leroy Wilson writes The MVP Chase (subscribe) and JL Cells (subscribe). Thank you for your subscriptions and support! You may contact James for writing, editing, research, and other work: jamesleroywilson-at-gmail.com.
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