In the span of 10 days, the Supreme Court took us back 10 decades

Courting hypocrisy

Jul 12, 2022 at 9:03 am
click to enlarge In the span of 10 days, the Supreme Court took us back 10 decades

The Supreme Court is the odd duck of the American government. The justices aren’t elected. There are no limits to their appointments. And upon appointment, they’re almost entirely shielded from the political process. Nine unelected jurists with lifetime appointments get to make binding, fundamental interpretations about the U.S. Constitution.

In fact, the Court’s legitimacy is built on … well, its legitimacy. It can’t actually enforce its rulings, after all. Instead, the justices have to show us their reasoning, show us that they’re above petty partisan politics. Consistent legal reasoning — applying the same approach to each case — is supposed to demonstrate over time that these are not politicians in black robes — that they are, indeed, jurists. It’s the placing of the legal process above its outcomes that is supposed to earn our trust.

But what happens when the justices betray that trust? What happens when their logic is so plainly subjugated to their ideologically preferred outcomes?

We’re about to find out.

Consider the Court’s ruling in Dobbs v. Jackson Women’s Health Organization, the case that shattered the principle of stare decisis and upended the Court’s own precedent to strike down the right to an abortion. Justice Samuel Alito, writing for the majority, said, “It is time to heed the Constitution and return the issue of abortion to the people's elected representatives.” Alito argues this simply isn’t a matter for the federal courts to rule on, it’s a matter for the states and their elected representatives. Employing a rhetorical sleight of hand, he implies that the federal government had been usurping rights since Roe v. Wade — and that he is now “returning” rights … and robbing millions of women of theirs. He uses the garb of liberty to choke it at the throat.

But what of the fundamental argument, about the usurpation of states’ rights? That might be believable, except that literally the day before, the Court struck down a century-old New York state law requiring handgun purchasers to demonstrate their need for a firearm. So states get to decide whether or not a resident can have an abortion — but not a damn gun?

The throughline in all of this is a legal theory that attempts to give credence to it all.

“Originalism” attempts to read the Constitution at the time it was written. It manufactures historical fig leaves for jurists looking to justify their ends by allowing them to cherry-pick from history. Apparently, an originalist’s reading demonstrates that gun rights were understood to be individual rights at the time of the Constitution’s ratification — but we can conveniently ignore the fact that the firearms were understood to be muskets, not semi-automatic high-volume assault rifles. There’s also a broader implication. At the time the Constitution was written, women were considered the property of men, and Black people were the property of white people. By yoking us to this past, originalists doom our future.

To appreciate originalism’s absurdity, consider the Court’s decision in West Virginia v. Environmental Protection Agency. The conservative majority ruled en bloc that the EPA lacked the authority to write sweeping rules that regulate power plants. While private property, business interests, and public welfare are as old as time, history has raised their magnitude and their stakes. The Court’s logic was that, in effect, the EPA had usurped Congress’s power to make laws — and that if Congress wanted to make rules to cap greenhouse gas emissions it had to pass those laws itself. But carbon emissions are unbelievably complex. So are food and drug regulation, workplace safety specification, and wildlife preservation — all things left to federal agencies to regulate in a world fundamentally more complex than it was in 1788. Congress lacks the necessary expertise or time to regulate all of them directly. So asking Congress to regulate all of these itself is simply a backdoor pathway to deregulating them because that’s functionally what would happen.

And that’s exactly the point — everything Charles Koch has been working toward for decades, at least. The billionaire arch-conservative is a cog in a much larger system that has been working to warp the Court in this direction. It’s all part of a much larger, longer play in which the Court is one of several critical pieces. And it hasn’t even performed its most important bidding. Next term, the Court will hear arguments in a case that could upend the foundations of our democracy itself.

Moore v. Harper involves a North Carolina Supreme Court ruling which struck down their state legislature’s extremely partisan gerrymander. Now, Republican state legislators are asking the U.S. Supreme Court to review the case. They argue that it would be unconstitutional for state courts — or state constitutions, even — to oversee federal elections, which the U.S. Constitution assigns specifically to state legislatures to determine the “Times, Places, and Manner.” In short, they argue that these legislatures supersede their own constitution or system of courts.

If the Supreme Court rules for the legislators, it would offer carte blanche for extreme gerrymanders around the country, further eroding our electoral system. Worse, because the U.S. Constitution also assigns state legislators the task of determining the “manner” in which a state’s electors are awarded in presidential elections, it paves the way for election subversion, too.

Ironically, to rule this way, the so-called originalists will have to conveniently ignore clear evidence that the framers of the Constitution understood states to have the power to constrain their legislatures through their own state constitutions. But so it goes with this Court.

While the full consequences of the Court’s hypocrisy will not be known for some time to come, their indelible imprint is already being left on American lives. Across the country right now, women are already searching for alternatives to a healthcare procedure that was safe and legal two weeks ago. Some will travel thousands of miles. Others will pursue black market options that could kill them. Many will not find alternatives at all. It’s pitiful to think that these were the ends that justified the means for which six justices defiled their own robes — and our constitution.

Originally published July 5 in The Incision. Get more at

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