From the September-October 2022 issue of News & Letters
The last U.S. Supreme Court term was among the most reactionary, far-reaching terms in memory. The six right-wing judges trampled precedent after precedent, and their written opinions inserted rhetorical footholds for further dystopian rulings down the pike.
In cases Dobbs v. Jackson Women’s Health (abortion), N.Y. Rifle Assn. v. Bruen (gun control), and W. Va. v. EPA (greenhouse gas emissions), all decided 6-3, the Court majority discarded Constitutional tests that had been in use for decades, only to substitute “history and tradition.” This is a convenient legal test for people who have their sights trained on LGBTQ+ rights, birth control, and interracial marriage. And it’s an invocation to bring a callous version of the Christian church into lawfare. History and tradition was the racist logic of the Court’s decision in Dred Scott v. Sanford: Black people had not been free before 1857, therefore they would not be free after 1857.
THE RACE TO REWRITE HISTORY
Conservatives are in a war to rewrite history. Those who desire rule without popular consent have long seen the Supreme Court as the fulcrum. The Court gives them victories they cannot win at the polls.
For example, W. Va. v. EPA was about an Obama-era rule directing power plants to utilize available renewable sources to meet demand first. Not only did Trump remove the rule, but plants do this already because they don’t want to waste money. Conservatives simply wanted to shackle all of Biden’s agencies. In his majority opinion, Chief Justice Roberts threw aside Chevron v. NRDC, which limited Court review to matters of “vast significance.” Roberts’s new standard for intervention is whether an agency rule “raises an eyebrow.”
The Court’s power grab continued as five judges voted in Okla. v. Castro-Huerta to trash a 120-year-old precedent in Lone Wolf v. Hitchcock to assert that the Supreme Court, and not only Congress, will have the right to abrogate treaties. “As a citizen of a tribal nation, I feel violated,” said Elizabeth Reese, of the Nambé Pueblo, to NBC News. “It’s just an erosion of our ability to be the governments that we are.”
DEMOCRATS FALL SHORT
The ability of people, and especially women, to self-govern, is at stake. As they overturned Roe v. Wade, Justices Alito and Kavanaugh pontificated about how they were just letting voters decide. Stunningly, President Biden and many Democrats had no response except: “this fall, we must elect more senators and representative who will codify a woman’s right to choose.” But the Roberts Court was already distorting elections in favor of the party that nominated them.
When Roberts worked for Reagan in the 1980s, Congress was considering an amendment to the 1965 Voting Rights Act which would prohibit election discrimination in impact, not just intent. Roberts had the job of crafting an argument against this. Though unsuccessful, he kept his misdeeds for 40 years until he was able to strike down key sections of the Act, via Shelby County v. Holder (2013) and Brnovich v. DNC (2021).
As for the coming November election, the Court failed to give injunctive relief to southern Black voters in Alabama and Louisiana, the likely result being that Republicans will retain two extra votes in the House. As for the Senate, close elections in states like Georgia and Wisconsin are tainted by laws that don’t express bias explicitly but lower the turnout of Black and liberal voters.
IMPORTANCE OF ONE MORE LIBERAL JUSTICE
Ketanji Brown Jackson’s appointment was not trivial: look at all the racist and sexist “jackassery” on display during her confirmation hearing. She makes a difference. It takes four justices to grant hearing to a case, and three justices who are nominally liberal may occasionally influence a fourth. If the nation was saddled with a seven-two conservative court, an extreme bloc could deny review of all the lower court decisions they wished to quietly let stand, out of the public eye.
The liberal justices stood alone this June, unsuccessfully trying to review Hill v. Shoop (courts can make a “cafeteria-style selection” of evidence to determine intellectual disability, and from there, eligibility for execution) and Andrus v. Texas (Texas can execute a prisoner who a prior Supreme Court had determined did not have adequate counsel). Nor could a fourth justice be found to challenge Ramirez v. Guadarrama, which said police could not be sued who tazed a man dousing himself in gasoline while knowing, and having been told, that doing so would set him and a nearby house on fire.
Grassroots organizations and some politicians are pressing Congress to expand the number of justices. Biden’s vacillating Commission on the Supreme Court found: “even just the prospect of expansion…could lead the Court to be restrained in its jurisprudence.” Law professor Samuel Moyn counters: “We should be disempowering the Court, through such means as limiting its jurisdiction.” Columnist Jamelle Bouie points out that the Court claimed its own supremacy, in Marbury v. Madison; therefore Congress can also claim the prerogative to limit the judiciary, just as abolitionist Republicans did in the Reconstruction era after Dredd Scott.
While three women on the Supreme Court resist its direction, the Court as a whole reveals itself as an arm of government willing to aid in the destruction of democracy and ride the winds of racism, sexism and neo-fascism. It has assigned itself to the dustbin of history.