In his 2022 majority opinion for Dobbs v. Jackson Women's Health, Justice Samuel Alito took great pains to argue that allowing states to ban abortion was no slippery slope to gutting other human rights. Claiming abortion is a "unique act" because of the "potential life," thus making it different from other court-established rights like birth control or same-sex marriage, Alito argued that Dobbs "does not undermine" other rights "in any way."
Roughly no one believed him at the time, in part because Republican protestations that they are "pro-life" are a thin pretext for what is an authoritarian obsession with controlling people's sex lives. It also didn't help that Justice Clarence Thomas used his concurrence in Dobbs to call for Republican lawmakers to go after other rights. He argued that "in future cases, we should reconsider all of this Court’s" previous decisions legalizing contraception and homosexual sex, as welll as the decision to permit same-sex marriage.
Even Alito's biggest skeptics underestimated how much Dobbs would be treated as an open invitation by the Supreme Court to red states: Strip away any human right you like. Just this past week, for instance, the Supreme Court refused to block two actions by the Texas government that should, by any measure, be serious violations of basic constitutional protections.
Late last week, the Supreme Court allowed West Texas A&M University to proceed with its ban of drag shows hosted by on-campus groups, even though the school's censorship violate decades of First Amendment precedence. This week, the Supreme Court did it again, allowing Texas to temporarily go forward with a clearly unconstitutional claim that state law supersedes federal jurisdiction when it comes to immigration. Neither decision constitutes the final word on whether Texas can flout the constitutional order so openly, to be clear. But even letting it get this far represents the Supreme Court's eagerness to bless Gov. Greg Abbott, R-Tex., in his quest to turn his state into a far-right dictatorship.
The drag show case is the simpler of the two, in terms of how obvious the violation of the First Amendment is. A student group at West Texas A&M wished to hold what the lawyers describe as "a PG-13 performance" of mostly-LGBTQ performers doing drag. The school's far-right president, Walter Wendler, canceled all drag shows on campus, regardless of content. Abbott's close ally, the infamously corrupt state attorney general Ken Paxton, has put the state government behind defending Wendler's blatant rejection of the free speech rights of students.
Both Wendler and Paxton are arguing in extreme bad faith. Wendler falsely accuses drag performers of being "misogynist" and "portraying women as objects." He has not, however, banned beauty pageants featuring cis women, despite near-identical content. Paxton claims drag must be banned to "protect children." College students, as a reminder, are adults. Even if children do attend with their parents, however, Paxton's argument is a stretch. Paxton is not backing a ban on beauty pageants or dance contests, which are the equivalent level of sexual display to a drag show.
No, this is about discrimination against LGBTQ people. Wendel was previously fired from a job after denying same-sex couples the employee benefits available to straight couples. He's also argued sex should only happen between heterosexual married people who do not use contraception. Paxton, meanwhile, has previously objected to same-sex marriage and has declared that Pride Week is "immoral" and should be "illegal."
The Supreme Court has not issued a final ruling on banning drag, but they did allow the current campus ban to take effect while the case proceeds. This, as legal reporter Ian Millhiser at Vox wrote, is outrageous because it is such a clear-cut case of free speech. By upholding the ban, even temporarily, Millhiser writes, "college students in North Texas are not allowed to exercise their First Amendment rights for an indefinite period of time."
The immigration decision is far more complex, but it amounts to the same thing. The Supreme Court refused to block, even temporarily, a Texas law that flagrantly violates the Constitution and court precedent. Abbott recently signed a law that gives state law enforcement the right to detain and even deport immigrants, even though all of U.S. legal history puts the enforcement of immigration law solely in the hands of the federal government. Abbott's law is so extreme that even the most jaundiced observers of this far-right Supreme Court doubt they'll allow Texas to keep it. That is why it was a shock on Tuesday when the Supreme Court allowed the law to take effect while it's being argued in court.
Legal expert Mark Joseph Stern combs through the dense legal maneuvers, and what it boils down to is this: Republican-appointed justices on both the Supreme Court and the Fifth Circuit Appeals Court know that the Texas law cannot pass constitutional muster. But they are partisan hacks who don't want to stop a Republican-run state from driving child migrants to drown to death. So they've been playing procedural games, as Stern explains, "to shield Texas’ law from Supreme Court review indefinitely."
To compound the horrors of the situation, the Texas law doesn't just target undocumented migrants, but anyone cops wish to harass. "The Texas measure also allows state law enforcement officers to stop and detain anyone they 'suspect' of having entered Texas unlawfully," Stern notes. Do you have a Spanish last name? Darker skin? Are the cops just bored and want to bully someone? All these can now be reasons they "suspect" a person is undocumented, creating an excuse to hold them.
"Could I be detained because I’m Brown, speak Spanish fluently and look like someone who crossed into Texas illegally?" Jorge Dominguez, a U.S. citizen who works as an immigration attorney in El Paso, Texas, said to the Washington Post.
Not to get too into the legal weeds, but there was enough wiggle room for an entirely different — and apparently less radical — group of Fifth Circuit judges to step in and injunct the law again. That's a relief, but doesn't change the basic outlines of the situation: The Supreme Court was willing to let Texas start implementing a law they know full well can't be defended, and were using "shameless gamesmanship" as a legal tool to do that. Worse, Republicans in other states are starting to feel confident that the court will eventually rule against the constitution to grant states the right to do this. As the New York Times reports, Iowa passed a similar bill and at least 6 red states are considering following suit.
Even if the drag ban and immigration law are eventually overturned, all this legal maneuvering sends a signal to Texas and red states: The Supreme Court is sympathetic to their white nationalist and theocratic impulses. Even when they can't, by law, uphold the authoritarian yearnings of Republican state leaders, they will do everything they can to help those politicians grasp as much power as possible. This also suggests, as with Dobbs, that the court will stretch the definition of "constitutional" to its breaking point to allow Republicans to attack basic human rights. Which means we may be seeing states take up Thomas's invitation to revisit whether birth control or same-sex relations are human rights sooner rather than later.
