The Radical Supreme Court
Christmas came early this year for the Republicans, Libertarians and Trumpists. They got most everything they wanted from Santa Claus with U. S. Supreme Court decisions on abortion, guns, prayer, school vouchers and government regulation.
This term of the U.S. Supreme Court cannot be described as anything but radical. Whereas the Court has traditionally tried to move cautiously and incrementally, which is referred to as “judicial restraint”, the new Court is anxious to strike blows for its conservative worldview. Considering the backgrounds of the 6 conservatives, this should not be surprising, but they have gone very far very fast and have shown an eagerness to disregard the judicial precedents of their own Court.
At the heart of their judicial philosophy are the concepts of originalism and textualism, which are most identified with deceased Justice Antonin Scalia. As I understand these ideas, they are that a Court should rely most heavily on the exact wording (the text) of the Constitution and, if there is doubt regarding the meaning of the words, then the Court should resort to an examination of history to discern the original intent of the Framers.
I am being generous in my description of this judicial philosophy. It is more correct to say that it is a mechanism upon which they rely to get to the result they want to achieve, but it is discarded if it cannot be used to justify the preferred result. The concept of originalism is embraced and propogated by the Federalist Society, a group of deeply conservative Republican and Libertarian lawyers and judges. Every conservative Justice on the Supreme Court is a member of and was endorsed by this Society. In fact, Trump outsourced his duty to appoint judges to the Federalist Society. To believe in originalism it helps to believe that the Framers of the Constitution were selected by God, divinely inspired, omniscient and prescient because only such persons could draft a document that in its exact wording could suffice for all situations and all time. It also helps to have an idealized, selective and sanitized knowledge of history.
You will note that there need be no reliance on legal precedent, even that of your own Court, because you can say, as Justice Alito just said “Roe v. Wade was egregiously wrong from the start.” In other words, the Justices on the Supreme Court that decided Roe were not only wrong, they were stupid, i.e., “egregiously wrong.”
To see how this concept is applied, you can read the recent opinions on abortion, guns, prayer, and school vouchers. When the Justices want to say a right does not exist or is not protected, they point to the text and say it is not explicitly mentioned. When they want to say a right exists that is not explicitly mentioned, they pretend to examine the historical record and conclude that the Framers must have intended the right to be protected. For example, in the abortion case Justice Alito says abortion is not mentioned in the Constitution and that abortion is not a form of “liberty” protected by the 5th or 14th Amendments to the Constitution. Of course, this is the exact opposite conclusion reached in Roe v. Wade, 50 years ago and means that autonomy over one’s body is not a protected “liberty”. Isn’t it more likely that autonomy over one’s own body is so very much the essence of personal liberty and so basic an idea that it need not be mentioned in the Constitution? If government can tell us what we can’t do with our reproductive systems, can it tell us what we must do?
The Court’s decision in the New York gun permit case will do great harm to the Nation’s ability to control our epidemic of gun violence. The Court held that the State of New York was without authority to require someone who lawfully owns a gun and wants to carry a gun on their person to obtain a permit. This ruling builds upon an intentional misreading of the Second Amendment and a gross distortion of history.
The Court’s decision in the prayer case is also deeply troubling in that it further erodes the separation between Church and state. This case goes hand-in-hand with the Court’s opinion in the recent school voucher case wherein the Court held that a state could not refuse to provide tuition assistance for private religious schools if it did so for other private schools.
The school prayer case is instructive for the active advocacy used by Justice Gorsuch who wrote the opinion. Gorsuch went out of his way to paint for the reader a mental picture of a head football coach quietly praying privately on the field. This is the opposite of the actual facts as shown by the video evidence. The coach prayed at mid-field with his players in a loud manner more resembling a pep rally or pre-game pep talk. The schoolboard objected because some parents complained that their kids felt pressured to join in. It seems highly unlikely that the parents or anyone else would have complained if the coach prayed privately. After all, we are completely accustomed to seeing athletes kneel in the end zone or cross themselves or pray by themselves or in small groups before games. But, this was different. This coach made himself and his prayer a focal point of his team’s pregame ritual and it was anything but private, silent, quiet, solemn or prayerful. Nevertheless, Gorsuch wanted to paint a picture that helped support the Court’s decision. This is the work of an advocate, not a Justice on the Supreme Court. Absolutely no one in the U.S. objects to private prayer or meditation. Gorsuch wanted to make a statement. He wanted to strike a blow for his personal belief system.
As an aside, I will also say that anyone who fails to understand the implicit power of a high school head football coach has never played the game. This is probably true of all sports at all levels, but it is particularly true of high school football. For every player who wants to play there is pressure to please the coach, pressure to be seen as part of the team, and pressure to conform.
One should also wonder if the decision would be same if the coach was not a Christian. But, the point here is that Gorsuch and the conservative majority wanted a case with which to set a new precedent, just as they did in the school voucher case, so they manipulated the facts to support their decision
As you may have read, Justice Clarence Thomas wants to revisit all Supreme Court decisions which are founded upon an implied right to privacy rather than the explicit text of the Constitution. This includes contraception, gay marriage, same-sex relationships, LGBTQ rights, and many others. Considering that Thomas is married to a white woman, I think it is safe to assume he doesn’t want to revisit decisions that strike down miscegenation laws, but Thomas, emboldened by the existence of the conservative super-majority now on the Court, clearly wants to turn back the clock to some point in time that makes him more comfortable. Maybe that’s after the Civil Rights Act or, considering his abysmal record on voting rights, maybe it isn’t?
Here are Thomas’ words: “In future cases, we should follow the text of the Constitution, which sets forth certain substantive rights that cannot be taken away, and adds, beyond that, a right to due process when life, liberty or property is to be taken away. Substantive due process conflicts with that textual command and has harmed our country in many ways. (emphasis added) Accordingly, we should eliminate it from our jurisprudence at the earliest opportunity.”
Please note Thomas’ displeasure: “…and has harmed our country in many ways.” It would be interesting (and, probably alarming) to hear how Thomas thinks contraception, same sex marriage, consensual/gay sexual relations, etc. have “harmed” our country. I suggest that there may be a good many rights and liberties you think are yours and protected that Thomas thinks have harmed our country.
Last, but certainly not least, the Court stripped the EPA of its authority to regulate carbon emissions from power plants, a major cause of global warming. Considering the fact that we are facing an imminent environmental catastrophe that literally imperils humanity, this decision will have more repercussions than any case this Court will ever decide.
Chief Justice Roberts wrote the opinion in the EPA case. Roberts did not question the EPA’s authority to regulate air pollution, which the Court upheld in a 2007 case. Rather, he wrote that, “Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible solution to the crisis of the day, but a decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.” This statement enunciates the emerging “major questions doctrine” which is a legal theory to the effect that if an agency’s action has a major impact, Congress must be shown to have authorized it.
Roberts and his cohorts are simply substituting their personal subjective judgment for that of the EPA, the President and Congress. Adopting Roberts’ reasoning, which is not really legal in nature, the Supreme Court has positioned itself to be the umpire, the backseat driver, and the final authority on the decisions of all federal agencies, not just the EPA. If the Supreme Court does not like a rule or regulation or the effect or impact of a rule or regulation, it obviously believes it has the power to substitute its own judgment for that of the agency.
You will note that Roberts gives a headfake to democracy. He essentially says that if a rule or regulation has a big impact, then Congress, “a representative body”, should make the decision. If that reasoning is correct, why does he think the Supreme Court, an unelected, non-representative body, should make a decision that the impact of a rule or regulation is too great and, therefore, void?
This decision is nothing more than the Supreme Court substituting its judgment, its preference, its discretion, for that of a federal agency created by Congress.
Where are we now?
The right to abortion has been abolished unless that right is granted by state law. This does not resolve the issue. You can rest assured that the issue will come back over and over again in one form or another.
Public school education has taken a hit and those who want to outsource public education to religious entities or see tax dollars go to religious schools are rejoicing.
School prayer is in so long as participation is not explicitly mandatory.
Guns are fine and dandy just about any time and anywhere. If you are scared by the thought of being around so many armed people, move to Canada or some other civilized country.
If you are a woman or someone in the LBGTQ community, you are at risk. If the Supreme Court and your state legislature can tell you what you can and cannot do with your own body, there’s no telling where we are headed.
There can be no doubt that the 6 conservative Justices intend a radical remaking of the law and, if possible, American society.
My personal view is that the conservative wing of the Court is wrong on the law, wrong to try to take American society back to the 1780s, and wrong about the Court’s proper role in a functioning democracy. Their radical move to the far right leaves the public impression that the Supreme Court is nothing more than a political and ideological body trying to remake the Nation in the image of what it thinks is best.
The Supreme Court has thrown away whatever respect it retained. It is nothing more and nothing less than a partisan body trying to achieve political goals, i.e., trying to make the United States into what it envisions is desirable.
On the docket for next year are major election law/voting rights cases. One can only imagine how far the Court will go to tilt the playing field toward the right.