The U.S. Supreme Court is out to prove it is not Chicago’s friend.
In the closing days of its session that ended on Thursday, the court demonstrated it is utterly predictable politically. It gave red states what they wanted and took away things blue states wanted. Along the way, the court blithely tossed out decades of legal precedent.
Its majority of six conservative justices doesn’t care that they are creating a world in which abortion rights are curtailed, more people are slain by gunfire and the planet goes up in smoke.
And by saying gun safety laws in four states deserve a new look and announcing it will consider whether to let state legislatures blatantly violate election laws in their own constitutions, the court signaled it will continue to wreak havoc in its next session. Taken together, this is terrible news for the nation’s democracy and the residents of a dangerously warming world.
What the Republican-appointed majority on the court is doing is clearly part of a pattern. Lawyers who watch the court carefully say you don’t have to be steeped in constitutional law these days to predict how the court will rule on significant cases. You just have to know what political conservatives want, then watch the court give it to them.
It’s a dangerous era for the nation as the court falls into disrepute and the right of a majority of Americans to influence public policy takes it on the chin.
The court ought to take its responsibilities, as a supposedly nonpartisan institution, more seriously. It’s no surprise that the court’s public support has fallen in the Gallup poll to its lowest level in a half-century.
Jettisoning settled law
On June 24, the Supreme Court overturned Roe v. Wade, upending what even some of the justices in the majority had earlier said was settled law.
On June 23, the court — saying Americans have a right to carry firearms in public — struck down a 111-year-old New York law limiting who can carry concealed weapons. The court followed that up on Thursday by tossing out lower court rulings that upheld bans on assault-style rifles in Maryland and on large-capacity ammunition magazines in California and New Jersey.
On Thursday, the justices limited the U.S. Environmental Protection Agency’s ability to regulate carbon emissions from power plants.
The end-of-session rulings followed earlier cases in which the court blithely jettisoned long-standing precedents.
In 2010’s Citizens United v. FEC the court said government can’t ban corporate funding of independent political broadcasts during election cycles. That overturned a 20-year-old precedent, Austin v. Michigan Chamber of Commerce, and parts of another precedent, McConnell v. FEC, which was decided in 2003. The result has been more and more spending by secretive super PACs and “dark money” groups.
In 2018’s Janus v. American Federation of State, County and Municipal Employees, the court upended 41 years of settled law by ruling Illinois couldn’t require public sector workers who were not union members to help pay for the cost of union representation.
As for what’s next, Justice Clarence Thomas said the court should reconsider rulings that protect access to contraception, same-sex relationships and same-sex marriage. Who knows what other rights will be on the chopping block?
Original intent not a ‘serious theory’
During what should have been remembered primarily as a historic month in which Ketanji Brown Jackson became the first African American woman to take a seat on the court, the conservative majority showed it is instead more interested in creating a more dangerous and less free America. So much for the right to the pursuit of happiness.
The justices in the majority claim they follow a philosophy of originalism, which they say follows the original intent of those who framed the Constitution. Yet significantly, they don’t question the right of the Supreme Court to declare laws enacted by Congress unconstitutional — even though no such power is specifically spelled out in the Constitution.
If they were true originalists, the justices would find themselves at times making rulings conservatives are not happy about — because the Framers, as flawed as they were, were visionaries in many ways, not enemies of democracy. Yet time after time, we don’t see that happen in significant cases.
Constitutional scholars say the flimsy and contradictory legal reasoning the majority justices have used is simply a cover for reaching the conclusions they prefer politically. As University of Chicago Law School constitutional scholar Geoffrey Stone said of the conservative court majority’s claim that it adheres to the concept of original intent: “No one really believes it [to be] a serious theory.”
The path forward is not easy. Once rights are lost, they can’t be easily regained. The time to fight unceasingly for a democratic America is now — before rights are irrevocably lost.
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