Hayden Thorne examines how conservative judicial activism is reshaping American law in dangerous ways
The just-concluded US Supreme Court term has seen the exact outcome court observers and scholars feared - a consistent and significant rightwards shift in the court’s jurisprudence. When Amy Coney Barrett was appointed in 2020, giving the court’s conservative wing a six-three majority and diluting the moderating influence of Chief Justice John Roberts (who, apparently, alone of the six conservative justices appears to care about the court’s reputation), many suggested the court would head on a hard-right course that might be the most consequential legacy of Donald Trump’s presidency.
Those fears have been realised in startling fashion over the past fortnight, as the court, in a sequence of rulings on abortion, gun control, and climate change has engaged in a blatant form of judicial activism, reaching out to overrule important precedent and effect a sea-change in American constitutional law.
This analysis will tackle first the three most substantial rulings of the last fortnight, beginning with the overruling of Roe v. Wade in Dobbs v. Jackson Women’s Health Organization. Considering and critiquing Dobbs, then the decision on gun control in New York State Rifle & Pistol Association v. Bruen and climate change in West Virginia v. EPA, I then comment briefly on the implications of these decisions for the Supreme Court, American Constitutional law, and American politics more generally.
Wherever you sit on these issues - and there are certainly many different perspectives - it should escape nobody’s notice that these cases undertake a quite fundamental realignment of the court’s role in American politics.
Dobbs
Last week, the Supreme Court voted by a bare majority to overturn Roe v Wade, invalidate the constitutional right to an abortion, and return abortion regulation to state legislatures who have a long history of legislative failure in this area. In so doing, the court overturned 50 years of constitutional decision making, ignored completely the fundamental rights of American women and exceeded the scope of proper constitutional inquiry – a point made abundantly clear in Chief Justice Roberts’ more limited concurrence.
Further, the novel approach, grounded in poorly understood history, opens up a host of previously protected rights to constitutional challenge, including the rights to contraception, interracial marriage, and gay marriage. As numerous scholars have since observed, the court had never before rescinded an individual right and returned to each state the decision whether to respect a right that was previously anchored in the constitution. It is, to be clear, an unprecedented step taken by an activist court intent on subverting the constitution to their own policy preferences.
Is it really surprising that an 1860s document, crafted by privileged white men at a time when women could not vote and were largely treated as property, does not give consideration to women’s rights, and more specifically reproductive rights?
To back up, though – what exactly did the decision say? And why is their analysis so fundamentally wrong?
The court’s majority opinion, authored by Justice Samuel Alito and joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, largely follows the contours of Alito’s leaked draft from early May, consequently exhibiting most of the flaws I traced here. Undertaking a largely historical analysis, the majority hold that the right to abortion is not found in the text of the constitution and is not “deeply rooted in this nation’s history and tradition” - and that therefore the decision in Roe and subsequent decisions based on the right to abortion were “egregiously wrong” when decided and must be overruled.
The decision is broadly an originalist one (originalism is a school of thought, pursued largely by conservative jurists, that the constitution must be interpreted based on the original understanding at the time of its adoption). It deploys a broadly flawed historical understanding to find, according to their analysis, that because abortion was not legally permitted at the time the Fourteenth Amendment was adopted (1868) or before that, it cannot be understood to be part of the “liberty” guaranteed by that amendment.
The majority’s reasoning, and decision, is decisively flawed in three major ways: a) it completely and utterly ignores the rights of women in favour of perceived ‘state interests’; b) it reaches out beyond the question asked to decide an issue that was not required to be decided in breach of proper principles of constitutional decision making; and c) it calls into question a long line of settled constitutional law guaranteeing the rights of individuals to “settled freedoms involving bodily integrity, familial relationships, and procreation”.
The majority would also have you believe their judgment is grounded in democratic principles, arguing their decision returns the issue of abortion to state legislatures, to be decided on by the representatives of the people. What they neglect to mention, however, is that in so doing they have taken away the most democratic choice of all – the right of each and every women, as an individual, to make her own decision. Instead of individual choice, women will now be subject to a postcode lottery, with different rights in every state in many cases determined by partisan, gerrymandered and undemocratic state legislatures that do little more than serve the interests of big business and religious organisations. This is no win for democracy.
Women’s rights
It is telling that nowhere in the majority opinion do the justices address the issue of women’s rights. The dissenting justices (read the opinion here, it is well worth it) persuasively argued that “one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens”. They further note that “the majority would allow states to ban abortion from conception onward because it does not think that forced childbirth at all implicates a women’s rights to equality and freedom”.
Perhaps most tellingly, the majority relies on an analysis of historical provisions made up until the passage of the Fourteenth Amendment in 1868. Abortion was not written into the constitution, so cannot be protected by it, they say. In so doing, they miss a crucial point. “... ‘people’ did not ratify the Fourteenth Amendment. Men did.” Is it really surprising that an 1860s document, crafted by privileged white men at a time when women could not vote and were largely treated as property, does not give consideration to women’s rights, and more specifically reproductive rights? The world has changed since then, and as with the other decisions discussed below, the court’s insistence on an originalist interpretation leaves American constitutional law grounded in the dark ages. (As an aside, there is plenty of evidence to suggest that the majority’s historical analysis arguing abortion has never been legally recognised is flat wrong - I just don’t have space to analyse that here).
Over-reach
Chief Justice John Roberts, a conservative justice with a long history of opposition to abortion rights, did not join the majority here for one very telling reason. Roberts argues, convincingly, that the court did not need to overrule Roe to decide this case. Roberts, with respect for the crucial doctrine of precedent, would have upheld the statute in question (banning abortion after 15 weeks) but retained the constitutional right to abortion established in Roe v. Wade. The ultra-conservative majority quite clearly reached out beyond the limits of the case in an exercise of “raw judicial power” that is becoming a defining feature of the current Court.
Danger to other rights
Pre-empting this critique, four of the majority justices assure readers that the decision does not threaten other rights because, for some vague and indeterminate reason, ‘abortion is different’. However, as is made abundantly clear in the concurring opinion of Clarence Thomas, if the same historical analysis is applied to cases including Griswold v. Connecticut (establishing the right to contraception), Lawrence v. Texas (establishing the right to engage in private, consensual sexual acts) and Obergefell v. Hodges (establishing the right to same-sex marriage), all would be overruled - a position that Thomas expressly advocates. This decision, and the obvious threat posed to personal liberty, should be of grave concern to all.
A final word on Dobbs - the right to abortion has been settled in American law for 50 years. “No recent developments, in either law or fact, have eroded or cast doubt on these precedents ... the court reverses course today for one reason and one reason only: because the composition of this court has changed.” As with the decisions on gun control and climate change, a sea change in American law is occurring on the back of the policy preferences of five (plus one) unelected judges, largely in direct opposition to the will of the people.
Bruen
The day before Dobbs was decided, the court released a similarly flawed and far-reaching decision dealing with gun regulation and the Second Amendment’s right to ‘keep and bear arms’ in New York State Rifle and Pistol Association v. Bruen. While Bruen features similarly flawed historical analysis, is wholly devoid of context and similarly reaches out far beyond the court’s remit to overrule a century-old law - it is most strikingly flawed for its direct conflict with the principles of Dobbs. Where Dobbs prioritises the importance of state legislative judgment, and the state’s perceived legitimate interest in the protection of life, Bruen completely ignores the compelling state interest in the protection of life through reasonable gun control in adopting a Second Amendment analysis totally grounded in an individual right to carry firearms for self-defence.
Bruen concerned a New York law, passed in 1911 and existing in its present form almost untouched since 1913, which requires an individual to show ‘proper cause’ before being granted a licence to carry a concealed firearm in public, outside of the home. The majority opinion, written by Thomas and joined by his conservative colleagues Alito, Roberts, Kavanaugh, Gorsuch and Barrett, overturned this century-old regulation as conflicting with the individual’s right to keep and bear arms for the purpose of self-defence. This represents a considerable expansion of the court’s interpretation of the Second Amendment and greatly limits the ability of states to regulate gun access and use. Like Dobbs, the decision reads more like a flawed justification of a policy preference than a reasoned judicial judgment.
Devoid of context
Just as Dobbs altogether failed to consider the rights of women, Bruen’s majority makes no mention of the dangers posed by gun violence to American society and makes no attempt to consider the state is very much legitimate in regulating access to guns. Justice Alito, in a concurring opinion, goes so far as to say that mass shootings, the use of guns for suicide and domestic violence, the widespread access to firearms and the quite frankly ludicrous statistics on American gun violence have absolutely no relevance to considering the constitutionality of New York’s gun regulations. Forget that America averages more than one mass shooting per day, or that gun violence is now the leading cause of death among children and adolescents. Forget that America has more guns per capita (double their closest rival, Yemen) than any other country. Forget that more than 45,000 Americans die from gun violence every year (a figure on the rise). Forget that firearms violence disproportionately impacts poor, black and Hispanic communities. To listen to the majority, the only relevant consideration is that at the time the Second Amendment was enacted in 1791, restrictions on the carrying of firearms in public did not exist (another contested historical point - much evidence suggests otherwise), and therefore such restrictions are unconstitutional. No effort is made to consider that a 2022 firearm might be quite different to the firearms available in 1791, let alone that the revolutionary context in which the amendment was enacted might be a little different to the situation society finds itself in in 2022.
Another over-reach
Much like the court did in Dobbs, here the majority over-reaches the bounds of their settled authority. The ruling is a rushed decision, overturning a settled, century-old law without allowing the judicial system the chance to properly understand the law in question. As Justice Stephen Breyer notes in dissent, the court decided this case before the lower courts had a chance to hold evidentiary hearings, meaning the majority’s understanding of the law in question is based on unsupported assumptions about how it operates in practice. Rather than waiting for a full picture of New York’s application of the law, the court reaches out, in an obviously activist fashion to upend settled law.
This over-reach is even more startling when we consider the treatment of this, and similar regulations in the courts of appeal (the level below the Supreme Court). Eleven of the 12 circuit courts of appeal - representing every opportunity they have had to consider the issue - had adopted a consensus approach to addressing these regulations, which the Supreme Court has discarded apparently without a care for the important precedent those decisions established.
Laws akin to New York’s are found in seven states, representing over a quarter of the American population in some of its most densely populated areas. The majority would have readers believe these laws are marginal and outdated. The evidence suggests otherwise. The court’s decision to invalidate what present as perfectly reasonable attempts at controlling gun violence will do nothing but encourage continued gun violence, to the detriment of all American citizens.
West Virginia v EPA
In one of the final decisions of the current Supreme Court term, the court on June 30 issued another activist, reactionary and conservative decision in West Virginia v. Environmental Protection Agency, and in doing so placed significant restrictions on the EPA’s ability to combat climate change.
The case considered whether a piece of 1970 legislation - the Clean Air Act - gave the EPA the power to implement a fairly moderate system of rules to push coal-powered electricity generators to shift to more renewable, and less polluting, sources of energy. The EPA’s scheme, which required a shift from high-emission to low-emission generation, was drawn up by the Obama administration, and has been under attack by the court ever since. When the plan was issued, the court actually stayed its implementation before it had been reviewed in lower courts - a step completely unprecedented in the court’s history. When Trump was elected in 2016, his administration shelved the plan, and it never went into effect. A Court of Appeal decision then found that the Trump-era EPA decision to shelve the plan was based on a misunderstanding of the legislation, and that an emission-shifting system was a legitimate action under the Clean Air Act. The Supreme Court now overturns that decision, and in doing so places considerable obstacles in the path of EPA efforts to combat climate change.
Over-reach
This case demonstrates amply the lengths the current conservative majority will go to in order to implement its own policy preferences, whatever the law might say on the matter. As a starting point, the court in this case has chosen to address an issue that is utterly moot. Since the Biden administration took office, the EPA has been explicit in its intention to promulgate a new scheme, and have expressly repudiated the scheme in question here - ironically, given the majority’s characterisation of the scheme as a major question likely to have a multi-billion dollar impact on the energy industry – the scheme has been shelved because the scheme's very moderate targets were achieved without it ever coming into existence through the influence of regular market forces. There was quite clearly no need for the court to involve itself in this case - yet it chose to do so in a manner that bolsters the court’s own power to intervene in administrative matters at the expense of the powers of Congress and administrative agencies.
Statutory interpretation
Ultimately, the decision turns on the meaning given to the authorising provisions in the legislation. The majority take a narrow view of those provisions, contradicting a number of established rules of statutory interpretation to limit the EPA’s power. The dissenters, with a more deferential view of their own power and a better understanding of the functions of the legislature, would defer to the authorising provisions of the legislation. The inconsistency is startling. In Dobbs, the same justices would defer to state legislatures as the proper holders of democratic power. In Bruen, they refused to consider the views of the state legislature. Here, they once again refuse to defer to legislative judgment, choosing to impose their own policy preferences in the place of legislative text.
Trends and forthcoming problems
The most obvious consequence of these decisions, and the court’s last term as a whole, is a significant shift to the right in American jurisprudence. The just-concluded term featured the highest rate of conservative decisions (74 percent) since the early 1930s. The appointment of Amy Coney Barrett has left the court effectively without a centre - a hard six-three split that shows little sign of ability to produce compromise or collaboration. The nature of that split has produced a strikingly divisive court, with the highest rate of dissent in almost 40 years.
It is also clear that, with the removal of Chief Justice Roberts’ influence as the fifth conservative vote, the court has become far more activist. All three of the decisions here go much further than what traditional notions of Supreme Court decision making require, adopting an aggressive form of originalism largely at odds with public opinion. The Supreme Court is not designed to be an activist institution (this was one of the criticisms levelled by conservatives at the Warren Court of the 1960s), but it seems that with greater power has come much less consideration for the court’s proper role.
The dissent in Dobbs accused the majority of “substituting a rule by judge for the rule of law” and it is hard to disagree. The conservative majority have engaged in exactly the exercise of ‘raw judicial power’ they used to criticise Roe v. Wade and in doing so have demonstrated a quite astonishing lack of respect for precedent, for legislative judgment, and for the will of the people who will be subject to their rulings.
The court has repeatedly engaged in bad historical analysis, pandered to a small minority of conservative interests, and demonstrated that it is utterly ignorant of the broader context in which its decisions are made, and the way they will impact the lives of millions of Americans right now.
It is clear these rulings will overwhelmingly impact marginalised groups and minorities. The gun regulation and abortion decisions in particular will have a demonstrable impact on the safety and security of these groups already so marginalised by the American legal system. Nothing good is likely to result from any of these three rulings.
I would like to end, however, on a small note of positivity. The reaction to Dobbs in particular has seen a significant outpouring of anger, particularly from the youngest generations. A generation that has largely been absent from American politics seems to be finding a much louder voice, and this can only be a good thing for the future. While the Democratic Party’s response has largely been disappointing - Biden, 79, House Speaker Nancy Pelosi, 82, and Senate Majority Leader Chuck Schumer, 71, have largely focused on an institutional response, the anger being seen among Democratic voters may yet lead to the sort of generational change American politics so desperately needs.
