Strategies for Overcoming SCOTUS; Midterm Update; Santolina Call to Action

In last week’s post, “Biden Climate Bill is About More than Climate: It Taxes the Rich & Large Corporations, Allows Medicare to Negotiate Drug Prices & More,” we described how, as long as we lack the power to force meaningful change, the best we are likely to do is some version of The Inflation Reduction Act. In this context, we get some good stuff, but always couched within a nest of thorny concessions that add up to hundreds of millions to many billions of dollars to industries who are the source of the problem to begin with. Sound familiar? Today we amplify on how our absence of power hinders efforts to effectively respond to recent and anticipated SCOTUS decisions. In these ruminations we explore paths to overriding or circumventing SCOTUS decisions. We also offer an update on the midterms and link to a group that can help you have an impact on those midterms. Finally, we include an urgent call to action on the heinous Santolina development being heard by the Bernalillo County Commission on Aug 16. We must stop this development.

SCOTUS Is Just One Branch of a Very Weakened Tree

The Supreme Court has lately looked like the most powerful part of the federal government, with the final word on abortion, gun laws, climate policy, voting rights, and more. These decisions, along with the threat of even more momentous future decisions, have taken the wind out of the sales of many activists, leaving them feeling that any advance achieved at a local, state, or national level can be swept away by the SCOTUS. But this was not the Supreme Court envisioned by our founders. They did not intend for the court to have such a dominant role. They viewed the judiciary as merely one branch of government. In the NY Times‘ “Defying the Supreme Court,” David Leonhardt offered the following view of how the founding fathers had offered tools to contain SCOTUS:

They gave Congress and the president, as well as state governments, various ways to check the court’s power and even undo the effects of rulings. Some options are fairly radical, like changing the size of the court or passing a law declaring any subject to be off limits from Supreme Court review (both of which, to be fair, have happened in previous centuries). Other options are more straightforward. They involve the basic tools of democratic politics: winning over public opinion and winning elections.

NYTimes’ “Defying the Supreme Court”

We need to explore these options, but two have emerged very recently:

Leonhardt goes on to point out that the longer-term and most effective strategy is to change minds and votes and achieve legislative power at local, state, and national levels to effect legislation that can inoculate us from the reach of our current SCOTUS. Recall that in 2012, when Obama took office, the Dems had control of both chambers of Congress and a very popular president in his first of two terms. While the 2014 midterms resulted in sweeping Senate losses, resulting in a divided Congress and a hamstrung president, from 2012-2014, the Dems had the power to create legislation codifying Roe v. Wade from the reach of SCOTUS but failed to make the effort. See below for how codification could have been done in 2013 or might be done in 2023, if we win both houses of Congress. But first a bit more from the NY Times on the failure of the Dems to use elections to create the Congressional context in which meaningful legislation can emerge:

Larry Kramer, a former dean of Stanford Law School, argues that many progressives have made the mistake of paying relatively little attention to this strategy [democratic politics] in recent decades. They have instead relied on courts to deliver victories for civil rights and other policies. That tactic worked under the liberal Supreme Court of the 1950s and 1960s and even sometimes under the more conservative court of recent decades. But under the current court, it will no longer work.

NY Times: “Defying the Supreme Court”

And so under the current court, we have no choice but to build power and secure the capacity to pass legislation that is constructed in such a way that it is SCOTUS-proof. So for example, in 2012, Congress could have codified Roe. From The Nevada Current, “What would it mean to codify Roe into law – and is there any chance of that happening?”:

In simple terms, to codify something means to enshrine a right or a rule into a formal systematic code. It could be done through an act of Congress in the form of a federal law. Similarly, state legislatures can codify rights by enacting laws. To codify Roe for all Americans, Congress would need to pass a law that would provide the same protections that Roe did – so a law that says women have a right to abortion without excessive government restrictions. It would be binding for all states.

Nevada Current: “What would it mean to codify Roe into law – and is there any chance of that happening?”

“What would it mean to codify Roe into law – and is there any chance of that happening?” is worth reading as it goes into some detail analyzing legislative actions Congress and states could take to protect a woman’s right to choose.

The point is that with enough political power and will, there are ways progress can be made regardless of SCOTUS, including increasing the membership of the court, populating it with judges who will not side with the current majority. But to achieve this power, we must succeed in elections, and so, we offer a midterm update.

Midterm Update

There has been a significant shift in polls over the past weeks, quite possibly due to the reaction to the SCOTUS Roe v. Wade decision, but possibly in part due to the Jan. 6 committee hearings and imminent passage of the Inflation Reduction Act. has an array of interesting polling information, including two interactive maps of the US with polling numbers for all Senate races in one map and all House races in a separate map. Unfortunately, 538’s midterm prediction is for the Dems to increase control of the Senate while likely losing the House.

First the Good News: The Senate

The good news is that is projecting the Dems increasing their numbers in the Senate which, depending upon how many seats they take, could push Manchen and Sinema to the sidelines, along with the insufferable Mitch McConnell. The graphic below captures’s findings indicating that 60 of 100 possible scenarios favor the Dems and 40 of 100 favor the GOP, so this is no slam dunk. But note that there is a slightly larger number of scenarios that would leave the Dems with 52 Senate seats, than with 51 or 50, with 52 being a much more workable situation, especially if the Dems hold the House, which unfortunately is the bad news.

The Bad News: The House

The chart below follows the same format as the Senate, but with very different results.

This amounts to a split decision, which would leave us with a Congress divided, unless we can win some of the House seats projected to be won by the GOP.’s rationale for this split decision: “we don’t expect the national environment to be good overall for Democrats — although it has improved for Democrats in recent weeks — which is why we expect Republicans to make gains in the House. But in the Senate, candidate quality matters a lot more, and this could prove to be a silver lining for Democrats. It’s a similar story in the 36 races for governor.”

So unless we want to have to watch a GOP House investigate the FBI and the DOJ for their work on January 6 and other Trump offenses, we need to take some House seats, and in NM we have an opportunity to flip one House seat from Red to Blue and to hold two blue seats. But while feels that both Reps. Leger Fernandez and Stansbury are expected to win reasonably comfortably, Dem challenger Gabe Vasquez is locked into a tight race with GOP incumbent Yvette Herrell, with a recent poll showing Gabe with an all-too-slender one-point lead.’s own polling finds Herrell holding a very narrow lead. We interviewed Gabe Vasquez and feel he is the kind of candidate who could win in CD2, not by bending to the right, but by being forthright and authentic. He is a great candidate.

So with the midterms rapidly approaching it is time to get in gear. Retake’s General Election Guide & Endorsements offers more on what you can do in NM and in other states. I don’t know about you, but I’m gonna be doing some canvassing for Gabe Vasquez real soon. I hope to see you out there knocking on doors.

Can’t canvass? The guide offers ways to have an impact from your couch. The guide also includes the interview with Gabe Vasquez, which will convince you to find your canvassing shoes.

As a final piece of motivation, I’ve been reading Ministry for the Future. It offers a vivid picture of what life will look like in 10-20 years if we don’t elect leaders who will ignore the pleas of the gas and oil lobbyists and press for meaningful climate legislation, instead of having to bend to the whims of Sen. Manchin who required substantial concessions to gas and oil to secure his support. Trust me, we want no part of the future projected in Ministry for the Future. Best to be our own ministers and create a NM state legislature and a US Congress that can pass meaningful climate justice legislation. We can do this with 3 months of focused effort. Click here to find out how and where you can get in the game. Let’s do this!

Santolina: A Very Bad Idea that Just Won’t Go Away

I received this note from NM Environmental Law Center who is leading the charge opposing the Santolina development, a development that is so poorly thought out it defies hyperbole. This is all about profit over people and planet, wrong on so many levels. Below we offer a call to action from our allies at NMELC:

The Bernalillo County Commission is scheduled to hold a hearing on Tuesday, August 16 at 2 pm to make a major decision on the latest plans submitted by Western Albuquerque Land Holdings (WALH) for the Santolina property development on Albuquerque’s West Side. 

Thanks to all community members who contacted their Bernalillo County Commissioners and asked them to postpone the hearing until they could hold it in a way that protects public health, over Zoom or hybrid (both online and in-person), so that immunocompromised members of our community could safely participate. Covid-19 cases are rising; the BCC recently moved their June 21st meeting online “due to an increase in COVID cases in the state and out of an abundance of caution for the health and safety of county employees and citizens at-large.” We were deeply concerned that the same prudent precautions were not being applied to the June 28 BCC hearing. We are pleased that the June 28 BCC hearing was cancelled! Community concerns made a difference!

We are asking community members to mark their calendars for Tuesday, August 16 at 2 pm for the next Santolina hearing. We ask those who are able to please show up, sign up for public comment, and speak out against this unneeded, unwanted $antolina $prawl development project. You can also email all five Commissioners and their aides by writing to

Below are some talking points that you may use to inform your public comments. If you plan to write to commissioners, please use the info below to inform your note, putting your email into your own words.

1) The BCC is scheduled to hear WALH’s Level A Amended Master Plan and the Level BII Master Plan. However, the Bernalillo County Planning Commission (CPC) voted on March 2, 2022, to recommend that both plans be denied. That recommendation by the CPC was not appealed, and these plans should not be appearing on the BCC agenda because the County is not following their own procedures.

2) We are urging the BCC to adopt the CPC recommendation to deny the Level A Amended Master Plan and the Level BII Master Plan because:

  • If approved, this mega sprawl development would be at the expense of future generations. Sprawl development is detrimental to public health, and the lack of public services and green space will contribute to poor health outcomes for future residents. Albuquerque’s thriving neighborhoods should be built around community resources and cultural life ways, NOT a developer’s hidden agenda.
  • The proposed amendments include “waste disposal,” which potentially allows harmful landfills, and dangle solar/green energy projects as distractions.
  • Santolina continues the practice of an extractive economy, extracting local resources to benefit the developers and their shareholders—an example of environmental racism—low-income people of color once again bearing the brunt of $prawl.
  • A new economic analysis is needed since the flawed original plan relies on outdated projected population and jobs data.
  • BCC consideration of Level BII is premature.
  • The County is not following their own appeal procedures by considering these plans.
  • Water Scarcity Continues! WALH claims its latest plans won’t require water from the Water Utility Authority—they claim they will haul water to the area. We still don’t know where that hauled water will come from. All water usage, even hauled water, will impact our very limited water resources.
  • WALH continues to try to avoid water service requirements that bind and protect our precious water and us all.

More on Santolina

Below you will find a most informative interview I conducted with three of the activists leading the opposition to the development: Maslyn Locke, a staff attorney at the New Mexico Environmental Law Center, Norm Gaume, former director of the New Mexico Interstate Stream Commission and an active member of the Middle Rio Grande Water Advocates, and Marcia Fernandez, a retired teacher, mother, grandmother, community activist, and farmer. You will learn a good deal about a shockingly bad plan that is working its way to being an approved shockingly bad plan, if we don’t stop it. And Aug 16 is a good day to do just that.

In solidarity & hope,

Paul & Roxanne

P.S. In our next post, we will publish an extraordinary interview with an extraordinary climate journalist and friend, Dahr Jamail. Stay tuned.

Categories: Election, Political Reform & National Politics

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