The upheaval of the last few weeks, especially after the court outright ended a half-century-old right to privacy for women, is unparalleled in modern times. The speed and scale with which the right-wing majority acted reflected, as one liberal dissenter wrote, a “restless and newly constituted court.”
And it’s not finished.
The conservative supermajority — anchored by three relatively young former President Donald Trump staffers — is poised to extend its influence next session with controversies over the Voting Rights Act, affirmative action and religious objections to LGBTQ protections.
The justices also expanded the Second Amendment, favoring gun owners, and redefined the balance between the First Amendment’s prohibition against the government’s “establishment of religion” and its “free exercise.” It would allow more public prayer and require more government money for religious education.
The new landscape was made possible by three Trump appointees — Neil Gorsuch, 54, Brett Cavanaugh, 57, and Amy Coney Barrett, 50. They broke with previous Republican justices who stuck to precedent and the “promise of permanence,” as Justices Sandra Day O’Connor, Anthony Kennedy and David Suter called it in the 1992 Planned Parenthood v. Casey case that upheld Roe .
The drive to the right was not entirely unexpected, although its force shook the country.
When liberal Justice Ruth Bader Ginsburg died in September 2020 and Trump quickly replaced her with Barrett, the new right-wing bloc of six justices appeared poised to roll back decades of individual rights and government power.
It was just a question of how quickly it would happen, and whether conservative but gradualist Chief Justice John Roberts would be able to slow down the breakneck force.
Twenty months later, it is clear that the majority were in a hurry. The right wing did not need Roberts’ vote for a majority, and on many points on the conservative agenda, such as religion, race, and regulatory authority, he was squarely with them. (Roberts writes alone in Dobbs – with a middle ground that does not satisfy both sides).
Aggressive conservatives
In the most important cases, including the right to abortion, the justices decided aggressively more than the case called for. When the justices agreed to uphold a Mississippi law banning abortions at the 15th week of pregnancy, he said he would only decide whether that ban was unconstitutional based on Roe and Casey’s protections for a woman’s choice of abortion before viability. the fetus, at about 23 weeks.
Kavanaugh, who succeeded Kennedy in 2018, joined Dobbs in an opinion disparaging Casey’s reasoning and likening Roe to Plessy v. Ferguson of 1896, which supported racial segregation, even though he professed “deep and unwavering respect” for O ‘Connor, Kennedy and Souter.
The Dobbs majority opinion, written by Justice Samuel Alito, ushered in a new era of abortion debate outside the realm of justice.
“After today’s decision, the nine members of this court will no longer decide the fundamental legality of pre-viability abortion for all 330 million Americans,” Alito wrote, joined by Trump appointees and Justice Clarence Thomas. “This question will be decided by the people and their representatives in the democratic process in the States or Congress.
It is likely, however, that as states respond to the Dobbs decision with new anti-abortion laws, the related controversy will soon return to the Supreme Court.
The justices also reached out in the Environmental Protection Agency case, as the Obama-era Clean Power Plan was struck down and the Biden administration’s plan has yet to be enacted. Thursday’s decision would limit Biden’s efforts to control emissions from coal and other industries to combat climate change.
More broadly, the decision will affect Washington’s ability to protect the nation’s public health and safety.
Writing for the majority, Roberts suggested that curbing carbon dioxide emissions and forcing a transition away from using coal to generate electricity could be a “sensible” way to deal with the climate change crisis. “But it is not plausible that Congress would give the EPA the authority to adopt such a regulatory scheme on its own in” a previous statute, he said.
Arguing that the court itself exercises excessive control over climate policy, dissenting Justice Elena Kagan said, “I can’t think of many things that are scarier.”
Earlier this year, the conservative wing of the six justices rejected the Biden administration’s efforts to stop the spread of Covid-19 with a vaccination rule. The Occupational Safety and Health Administration has ordered employers with 100 or more workers to require vaccinations or weekly testing for Covid-19.
The court ruled in January that OSHA had exceeded its statutory role in workplace safety. “Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational risk in most,” the justices said in their unsigned opinion.
The same six justices sided with conservative Maine Christians and ruled that if a state subsidizes private education, it must include religious institutions. They also stood by a Washington state high school football coach who prayed at midfield after games, thereby rejecting a legal approach that warned against government “endorsement” of religion.
While the majority emphasized respect for religious expression in Kennedy v. Bremerton School, the dissent said the decision harms schools and students, along with “the country’s long-standing commitment to the separation of church and state.”
The liberal wing can do little but oppose it
New Justice Ketanji Brown Jackson, the nation’s first African-American woman on the bench in the court’s 233-year history, was able to retire Stephen Brier on Thursday and will be in her seat for the new session.
At age 51, compared to the 83-year-old Bryer, Jackson will bring a new youth along with his historic status. However, the 6-3 Conservative-Liberal balance will not change.
The wing Jackson joins is likely to remain on the losing side, especially in the highly charged voting rights and culture war disputes on the agenda for the 2022-23 session, which begins in October.
When the three liberals, including Breyer, dissented on Dobbs’ abortion case, they recalled Breyer’s 2007 complaint when he dissented from a ruling overturning school reintegration plans: “It’s not often in law that few have changed so quickly so much.”
“So few” is now – as a supermajority – more appropriately “so many”.
The rapid pace of such a major change is staggering. Dissenters tried in vain to cling to precedent dating back half a century in disputes over abortion rights and religious liberties.
In the EPA case, they held to recent precedent, a 2007 case in which the high court recognized the EPA’s authority to regulate carbon dioxide and deal with environmental crises.
“But that court,” Kagan wrote, “wasn’t that court.”
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