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Sunday, August 28, 2022


Cardboard cutouts of the conservative Supreme Court justices were propped up by abortion rights activists in front of the court. (Illustration by Bill Clark/CQ Roll Call) 

The Supreme Court isn’t done sending shocks through American society in a way that lines up neatly with the priorities of the Republican Party. 

GUEST BLOG / By Cristan Farias, Vanity Fair Writer--On the eve of his retirement, the nation’s first Black justice and ¬constitutional giant, Thurgood Marshall, took a moment to denounce the Supreme Court of the United States over its “radical” path of abandoning past decisions for no other reason than the court’s membership had changed. Owing to these shifts in personnel, Marshall charged, now “scores of established constitutional liberties” hung in the balance, the powerless were left defenseless, and the court’s own authority and legitimacy were diminished. 

“Power, not reason, is the new currency of this Court’s decision-making,” Marshall warned in 1991, in what turned out to be his final dissenting opinion. The dissenting justices in Dobbs v. Jackson Women’s Health Organization, the watershed case that discarded nearly 50 years of American jurisprudence protecting a woman’s right to terminate a pregnancy, felt the need to quote from Marshall’s decades-old warning because power, indeed, is the only sensible explanation for the Supreme Court’s present course. 

The seismic end of Roe v. Wade and Planned Parenthood v. Casey, two pillars of a much larger structure of unenumerated constitutional rights the high court has erected over almost a century, was neither legally necessary nor a product of profound changes in American society. Instead, five justices tore these precedents off the law books, ushering in a new era of abortion criminalization and second-class citizenship for half the nation, simply because they could—and had the numbers to do so. 

“Neither law nor facts nor attitudes have provided any new reasons to reach a different result than Roe and Casey did,” wrote Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan in their anguished Dobbs dissent. “All that has changed is this Court.” As radical and destabilizing as the fall of Roe is for our most intimate personal decisions, beyond just abortion rights, its ripples will extend to other areas where the conservative justices are already smelling blood. Not satisfied with the erasure of just one constitutional right, Clarence Thomas, writing separately in Dobbs, indicated that contraception and same-sex marriage could be next. 

That future begins now. 

These actions and other signals make abundantly clear what Marshall foresaw: The Supreme Court is on a collision course with democracy itself. 

Dobbs merely sets the stage. Every new justice creates a new court, the maxim goes. Yet for much of their time on the bench, Justice ¬Samuel Alito, long a soldier in the Republican holy war to curtail abortion rights, and Thomas, an avowed Roe antagonist, had the will but not the votes to impose their antiabortion vision on the majority of the Supreme Court, much less on the rest of the country. 

Their fortunes, and power, changed with the election of Donald Trump, whose own marriage of convenience with white evangelicals and social conservatives paved the way for his presidency and the installation of three new justices of a different mold, all of them more extreme and lacking the moderation of Republican appointees of the past, including those who made Roe and Casey possible. 

Next to this “restless and newly constituted Court,” as Sotomayor branded this new majority in June, Chief Justice John Roberts looks as weakened as ever. The Supreme Court may bear his name, and the chief may have come of age during the abortion wars of the 1980s and ’90s, but neither his title nor institutionalist bent could convince the reactionaries to his right that their ¬power grab in Dobbs represented “a serious jolt to the legal system” that he simply could not join in full. Too much, too soon. 

To the Trump justices, plus Thomas and Alito, this shock to the nation could not come soon enough. Nominated by a president who lost the popular vote and narrowly confirmed by a Senate plagued by minority rule, these justices—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—were all groomed for this moment. All of them were grown in the test tube of the Federalist Society, the conservative legal brain trust that for decades has been a judicial pipeline for Republican administrations and state governments, which since the time of Ronald Reagan have made the fall of Roe a white whale of their politics. 

In theory, interpretative judicial tools like originalism and textualism, which this movement held up as a goal, were meant to keep judges restrained, beholden to policy choices made by the political branches. In practice, they’ve become Republican orthodoxy, embraced by party officials, scholars, and activists to wield power. When Alito writes, as he does in Dobbs, that the right to an abortion is nowhere in the Constitution, and thus the issue must return to the states, his sleight of hand allows his majority to ignore that women, enslaved or free, had no say in the content of our founding document, let alone to set the course of their own lives and livelihoods—a brutal “history and tradition” the Supreme Court fails to confront. 

The justices are not trained historians, yet their insistence on surveying history and tradition to find the benchmark for deciding some of the nation’s most contested constitutional controversies can be embarrassingly tendentious and ahistorical

The liberal justices, cognizant of the risks of cherry-¬picking the past to solve difficult legal questions in the pluralistic, multiracial society of today, tried their best to make that point in recent dissenting opinions. In a case that recently expanded the scope of the Second Amendment right to carry a firearm outside the home, Breyer observed how the Supreme Court, “not an expert in history, had misread Blackstone and other sources explaining the English Bill of Rights.” 

And in a hypertechnical criminal case, Kagan chided the conservatives for playing historians: “My view of the history, just like the majority’s, has precious little—no, has nothing—to do with resolving this case,” she wrote. Notably, in these and other disputes beyond Dobbs, the Supreme Court broke sharply 6 to 3, which suggests that Roberts’s disagreements with the five justices to his right only go so far. 

And as if to show that he is at least nominally in charge, the chief rounded out the term with a blockbuster ruling, which he assigned to himself, all but declaring war on administrative agencies. “The Court appoints itself—instead of Congress or the expert agency—the decisionmaker on climate policy,” Kagan wrote in dissent in West Virginia v. EPA, which sharply curbed the government’s power to regulate carbon emissions from power plants. 

“I cannot think of many things more frightening.” 

The Supreme Court isn’t done sending shocks through American society in a way that lines up neatly with the priorities of the Republican Party. 

When the justices return to the bench from their summer recess in October, Roberts’s first order of business will be to give a warm welcome to Breyer’s replacement, Ketanji Brown Jackson, and then get right down to the real business: a docket that already has advocates of voting rights, racial justice, and democracy on high alert. In the justices’ sights, among other targets, are the future of affirmative action in higher education, the power of Black voters under what’s left of the Voting Rights Act, and an esoteric legal question that could well give cover to Trump-friendly Republican-led state legislatures wishing to contest the results of the next presidential election—or, at the very least, wreak electoral mischief at the expense of voters. 

“Women are not without electoral or political power,” wrote without irony the five justices who ended their right to be full and equal citizens before the law in Dobbs. In asserting power rather than reason over what remains of our less than perfect union, the Supreme Court may well unravel democracy with it, taking us down a path from which there is no return. 

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