In just over a week’s time, the Supreme Court has handed down precedent-shattering rulings in several areas that not coincidentally are hot-button issues for the contemporary Republican Party. The pretense, among the justices and their defenders, is that these rulings are driven by originalism, a legal theory (invented in the 1970s and pushed relentlessly by the Federalist Society and Republican politicians and pundits) that prescribes a faithful reading of the Constitution and of American history.
The plain facts illustrate why this convenient conceit is insupportable. In each of these cases (and in others of recent vintage), the GOP agenda and the passions of the voting base of the party represented the winning side, while the historical and constitutional evidence appealed to fell far short of sustaining the rulings -- and often undermined the decisions handed down.
The court's Republican majority, in a rush to discard stare decisis and other conservative judicial principles, has not hesitated to impose its religious and cultural views on Americans. This arrogant contingent evinces not the least doubt about the wisdom of its vision or its quest to put its heavy stamp on public policy. These true believers have an expansive agenda compatible with the racial and cultural resentments of the Republican Party's voting base. And, at bottom, this majority and its agenda are fundamentally undemocratic.
Religious liberty
The First Amendment (which also establishes freedom of speech and of the press, and the rights to assemble and to petition the government for redress of grievances) begins with these words:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof
Focusing on the portion of the amendment that references religion, the establishment clause has historically loomed large. Thomas Jefferson explained that intent of the amendment was to erect “a wall of separation between church and state,” while Madison, the author of the amendment, touted the benefits of “the total separation of the Church from the State.”
The court’s Republican majority (going back several years) has both disfavored the establishment clause (and its historical primacy) and greatly expanded the meaning of “free exercise” (far beyond worship, ministering, and telling others about ones faith). These two trends, and a disregard for the rights of those who don't embrace that faith, have served to increase the trove of grievances to many constraints of civil society that white Christians in particular may now litigate. This development has been very pronounced since the Hobby Lobby decision in 2014.
On June 21, in Carson V. Makin, the court, in a flight away from decades of constitutional jurisprudence (not to mention the views of our founders), turned the separation clause on its head. As Justice Sonia Sotomayor wrote in dissent:
What a difference five years makes. In 2017, I feared that the Court was “lead[ing] us . . . to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.” Trinity Lutheran, 582 U. S., at ___ (dissenting opinion) (slip op., at 27). Today, the Court leads us to a place where separation of church and state becomes a constitutional violation. If a State cannot offer subsidies to its citizens without being required to fund religious exercise, any State that values its historic antiestablishment interests more than this Court does will have to curtail the support it offers to its citizens. With growing concern for where this Court will lead us next, I respectfully dissent.
On June 27, in Kennedy v. Bremerton School District, the court ruled in favor of a high school football coach who, with much fanfare and with crowds who rushed the field to join in, led Christian prayers at midfield after games (in violation of school policy). Justice Neil Gorsuch writing for the majority, ignored the facts of the case and opined that the coach wished only "to say a short, private, personal prayer.”
Justice Sotomayor, who in her dissent posted photographs that documented the scene, was more faithful to the facts as well as to previous precedent:
Properly understood, this case is not about the limits on an individual’s ability to engage in private prayer at work. This case is about whether a school district is required to allow one of its employees to incorporate a public, communicative display of the employee’s personal religious beliefs into a school event, where that display is recognizable as part of a longstanding practice of the employee ministering religion to students as the public watched. A school district is not required to permit such conduct; in fact, the Establishment Clause prohibits it from doing so.
Abortion
In a historic decision, Dobbs v. Jackson, that unsurprisingly hit like a thunderclap, the court stripped women and girls of a Constitutional right, access to abortion, decreed by a previous court a half-century ago (and reaffirmed more recently). Justice Samuel Alito's majority opinion played fast and loose with American history, as many commentators have observed. For one thing, he picks and chooses his history, based on the result he aims to reach and a 19th century social system that he finds amenable.
... Alito begins his version of the history of abortion laws with the 1860s and 1870s, when states began to adopt laws that eliminated the legal significance of quickening and criminalized the ending of pregnancy at any stage. This second wave of laws was pushed by a small group of self-interested white, male physicians who were anxious about their status as both doctors and as elite American men.-- Leslie J. Reagan, professor of history and law at the University of Illinois, Urbana-Champaign and author of When Abortion Was a Crime and Dangerous Pregnancies
For another, Alito (with his conservative brethren and Justice Amy Coney Barrett), make a practice of ignoring (or figuring out workarounds) to the Civil War amendments, especially the Fourteen Amendment.
Black women’s sexual subordination and forced pregnancies were foundational to slavery. If cotton was euphemistically king, Black women’s wealth-maximizing forced reproduction was queen.
Ending the forced sexual and reproductive servitude of Black girls and women was a critical part of the passage of the 13th and 14th Amendments. The overturning of Roe v. Wade reveals the Supreme Court’s neglectful reading of the amendments that abolished slavery and guaranteed all people equal protection under the law. It means the erasure of Black women from the Constitution. -- Michele Goodwin, a chancellor’s professor of law at the University of California, Irvine, and the author of Policing the Womb: Invisible Women and the Criminalization of Motherhood
The Dobbs decision is more than anything else a wistful return ticket to an era when the roles and rights of women (even white women) were circumscribed by law, by social practice, and by the religious views (of many, if not most Americans) of the era. It is sobering how much sway this anachronistic view still has, especially -- but hardly exclusively -- among white Christian conservatives.
Even if it were so that Alito and company were unbiased, conscientious, reliable interpreters of history -- which is hardly the case -- what sense does it make to deny women and girls in 21st century America access to reproductive health care based on a contrived snapshot of American life in the 18th or 19th centuries? The notion that women have (and ought have) less autonomy than men, the belief that a human being exists (and ought to have overriding legal protection) from the moment when a sperm penetrates an egg, and the conviction that the state can (and should) enforce these judgments, spring from a religious view. The religious outlooks of the six Republicans on the current court are far too homogenous to be representative of America today; yet these justices are impatient to deploy their inordinate political power over all of us.
The majority opinion authorizes the coercive power of the state to impose its singular religious views on Americans, regardless of the religious (social/cultural/philosophical/political) viewpoints of the citizens of the state. The GOP often rails about 'liberty,' but not in this case. Women under this regime may be forced to carry a pregnancy to term. Pause to consider that. The Republican Party is pushing a savagely diminished sphere of individual liberty for women.
The ruling disregards individual choice, ones life circumstances, even poverty that would make prenatal care a desperately heavy burden. Yet the cruelty doesn't stop there. As Jennifer Haberkorn relates, at one time, prior to Roe v. Wade, many states that banned abortions, made exceptions for rape or incest:
It was a veneer of acceptance embraced by every GOP president from Reagan to Trump, and even the strongest abortion foes, that a woman should not be required to carry a rapist’s child.
Not anymore.
Just as states may be on the verge of regaining expansive authority to outlaw abortion, eliminating rape and incest exceptions has moved from the fringe to the center of the antiabortion movement.
Guns
The Second Amendment to the U.S. Constitution:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
In American society of 1791, militias existed to provide for the common defense of the community. Men were obligated to serve in militias. The Second Amendment prohibited the federal government from depriving the states of this means of defense.
This was well-understood at the time and was not disputed by the nation's highest court for more than 200 years -- until 2008 in District of Columbia v. Heller, a 5-4 decision written by Antonin Scalia, which separated the first four words (and the history behind them) from the amendment, and ruled that the right to bear arms was an individual right.
John Paul Stevens (who wrote one of two dissents to that decision based on the historical record), wrote in an essay nine years after his retirement from the court:
He added:
So well settled was the issue that, speaking on the PBS NewsHour in 1991, the retired Chief Justice Warren Burger described the National Rifle Association’s lobbying in support of an expansive interpretation of the Second Amendment in these terms: “One of the greatest pieces of fraud, I repeat the word fraud, on the American public by special-interest groups that I have ever seen in my lifetime.”
On June 23, in an opinion that relied on the Heller decision and on Scalia's misreading of history, the Supreme Court (in New York State Rifle & Pistol Association, Inc. v. Bruen) ruled that the Second Amendment guaranteed an individual's right to carry a gun outside ones home for self-defense. In doing so, the court's 6-3 majority struck down a law that had been in place since 1911.
Adam Winkler, law professor at UCLA, and author of Gunfight: The Battle Over the Right to Bear Arms in America, critiques the history as presented by Justice Clarence Thomas's decision:
Most notable is that the Court says it is going to look to history and tradition, but then ignores history and tradition. The Court says that only gun laws which have historical precedent are constitutionally permissible, and then the Court dismisses all of the historical precedents for heavy restrictions on concealed-carry laws as outliers. The Court says that it is going to look to history, but dismisses early English common law as too old. The Court says that it is going to look to history, but dismisses any laws that were adopted after the mid-eighteen-hundreds as too young. The Court says that it is looking to history, but also says that shall-issue permitting is constitutional, even though shall-issue permitting is a twentieth-century invention. So the Court says that it is doing history and tradition analysis, but conveniently ignores any history it doesn’t like.
Cherry-picking historical examples is a pattern with the Republican majority on the court. It subverts history, which the majority purports to rely on in its decisions. It exposes originalism as a sham. But the Republican justices' rulings reveal another more disturbing pattern, which a bitter concurrence (which resembles obtuse trolling on social media) in Bruen illustrates:
Justice Alito (writing for himself) mocked Justice Steven Breyer's reference (in his dissent) to mass shootings; Alito insisted that the discussion of gun deaths in Breyer's dissenting opinion was irrelevant, lacking any "legitimate purpose." Breyer responded:
The question presented in this case concerns the extent to which the Second Amendment restricts different States (and the Federal Government) from working out solutions to these problems through democratic processes. The primary difference between the Court’s view and mine is that I believe the Amendment allows States to take account of the serious problems posed by gun violence that I have just described. I fear that the Court’s interpretation ignores these significant dangers and leaves States without the ability to address them.
Disabling democratic politics
In case after case after case, the Republican SCOTUS majority undoes, or disallows, public policy solutions advanced by the Democratic Party. It rules them out of order, which allows five or six justices, appointed for life, to dictate social and political policy for the country. (The 6-3 and 5-4 voting rights and redistricting decisions in recent years are especially pernicious, since they serve to depress the vote of Democratic constituencies and to make electoral choices less meaningful.)
I've written a great deal about this phenomenon, which I characterized in one post as "strategically crafting a partisan constitution." Without repeating my argument now, I'll add that the Republican Party -- at the Supreme Court; in state legislatures through voter suppression and gerrymandered state and federal districts; and with a structural assist from the Electoral College -- has a singular commitment to sustaining minority rule. Lacking majority consent from Americans, it is dedicated to taking and keeping power by whatever means possible, including actions that are undemocratic, even authoritarian.
Bruen, an imminent threat to every single one of us
The Bruen decision is especially disturbing because it puts everyone throughout the country at greater risk of death or disability through gun violence. At supermarkets and in churches, in movie theaters and at music concerts, on college campuses and in our elementary schools, from our eldest citizens to our children. Blue states, red states, densely populated urban centers, and rural areas alike. By stripping states and cities of authority to regulate guns, by encouraging the proliferation of guns in public spaces (while the Supreme Court is insulated from the threat of gun violence), the court's majority puts us all in greater danger.
That is maddening, especially since this crew lives in an affluent, privileged stratum that most Americans -- especially those whose quality of life will suffer the most as a result of this court's rulings -- can only imagine. This is another distressing pattern. Riding the New York City subway to and from work each day? Living below the poverty line as a single mother? Experiencing state coercion dictated by judicial deference to a faith that one doesn't accept? These are foreign to the court's majority. We can't expect even empathy from these justices, much less -- ironically -- anticipate anything resembling Christian charity.
It is a commonplace to note that the founders never considered the damage caused by military assault rifles circa 2022. Or ghost guns, as Justice Breyer observes: 'How can we expect laws and cases that are over a century old to dictate the legality of regulations targeting “ghost guns” constructed with the aid of a three-dimensional printer?' And of course life in Colonial America was vastly different than life in today's United States, when most of us live in urban areas that dwarf the largest cities of the 17th century, while the places where we gather today (as Justice Breyer noted in his dissent) such as, subways, movie theaters, sports stadiums, and much more, bear only distant resemblance to the founders' social environment. Until 2008, after a concerted campaign by the National Rifle Association and the gun manufactures who have come to be a primary funder of the group, the Second Amendment was not a bar to the regulation of firearms.
A reckless, imperious Supreme Court majority enjoys an extraordinary level of protection from harm; the justices are even insulated in and near their workplace from the sight or sound of critics expressing their First Amendment rights. This judicial majority, inside a bubble of protection, courtesy of the federal government, has imperiled the safety of everyone in the country who is not privileged with such protection. This court has wrenched authority from the states to act to protect us; this ruling has stripped our elected representatives of the right to propose, debate, and enact public policy solutions with majority support.
This pattern of decisions represents a profoundly undemocratic rigging of the political process that democracies rely on.