In the foreseeable future, this nation will be in the grip of six, mostly far-right justices on the Supreme Court of the United States. They will have the power to determine if “we the people” get to keep the democratic republic that the Founders established in 1787. And I’m not confident that the answer will be a clear cut yes.
How did we get to this disturbing point? First, recall some statistics that I included in an earlier blog: The four chief justices appointed since President Franklin Roosevelt’s death have all been selected by Republican presidents. Of the Supreme Court justices confirmed since 1945, 12 were appointed by Democratic presidents; 20 were appointed by Republican presidents.
Still, in the 1960s and early 1970s – the era of landmark civil rights legislation – conservative Republican politicians claimed that the Supreme Court was involved in “judicial activism” and railed against the “liberal Court.” Yet, in 1973, when the Court rendered a 7-2 decision in Roe v. Wade that gave women a constitutional right to an abortion, the opinion was written by Justice Harry Blackmun, a Richard Nixon appointee, and joined by Chief Justice Warren Burger, another of Nixon’s Republican appointments.
The Court took a definite turn to the right, however, when President Ronald Reagan appointed William Rehnquist as chief justice and Antonin Scalia as an associate justice in 1986. It moved further right in 1991 when President George H. W. Bush appointed staunch conservative Clarence Thomas to replace a retiring liberal, Justice Thurgood Marshall, on the Court.
Thus began a period when the Court handed down numerous 5-4 decisions, usually five conservatives to four liberals. Occasionally, Justice Anthony Kennedy – a Reagan appointee and sometimes swing vote – would join the liberals to deny the conservatives their way. It was this alignment, five conservatives to four liberals with the possibility of a swing vote, that kept some balance in the Court.
That didn’t stop the conservatives, however, from handing down two democracy-damaging rulings. First, there was Citizens United v. FEC in 2010 that opened the floodgates of money in politics, followed by Shelby County v. Holder in 2013 that crippled the Voting Rights Act of 1965 and freed racist-inclined Republican-controlled legislatures to significantly restrict minority voting rights.
Unfortunately, Kennedy’s swing vote was eliminated when he resigned in 2018 and then-Senate Majority Leader Mitch McConnell (R-Ky.) finally got Bret Kavanaugh – President Trump’s second appointee – narrowly confirmed to the Court after a contentious hearing.
At the time, I hoped Chief Justice John Roberts would become a swing vote on some issues and help keep the conservatives somewhat under control, which he did. When McConnell rushed Amy Coney Barrett through the Senate just days before the 2020 presidential election, however, the power on the Court shifted sharply to the right, with almost no possibility of a swing vote. In effect, the Chief Justice lost control of “his” Court.
It’s worth noting that all six conservative justices on today’s Court are members of the Federalist Society, an organization of conservative and Libertarian lawyers who generally believe in federalism, aka, “states’ rights.” As such, they favor limiting the scope and power of the federal government. These justices also describe themselves as “originalists,” which means they believe the U.S. Constitution should be interpreted based on the accepted meaning of its words when they were written. So, we have an 18th Century perspective addressing 21st Century issues.
After recent oral arguments in Dobbs v. Jackson [Mississippi] Women’s Health Organization, it seems almost certain that the Court’s conservatives will significantly limit constitutional protections for abortion by weaking or overturning Roe v. Wade. All of them were quizzed on this issue during their confirmation hearings and they either dodged the question or apparently lied, saying Roe was settled law. A plurality of Americans doesn’t support overturning this landmark precedent on abortion but these justices don’t seem to be concerned about public opinion. I believe they are committed conservative ideologues.
Liberal-leaning Justice Sonia Sotomayor warned her colleagues about weakening Roe while questioning Mississippi’s Solicitor General, “Will this institution [Court] survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible.” That, my friends, is mighty strong language.
Later, Justice Sotomayor questioned, “If people actually believe that it’s all political, how will we survive? How will the court survive?” I would argue that a politicized Supreme Court also threatens the survival of our democratic republic.
Earlier this year, Texas enacted SB 8, a law that bans abortions after the sixth week of pregnancy and enables citizens – some say vigilantes – to enforce it with private lawsuits. Since this law was first challenged in August, the conservative justices, with the exception of Roberts, have allowed this very strict abortion law to remain in effect even though it’s clearly unconstitutional under Roe v. Wade. To me, this is a strong indication that at least five conservative justices intend to overturn Roe and legitimatize Texas’ SB 8.
But here’s the thing. Constitutional protections and other prior Court precedents could be effectively nullified by state laws that are enforced by private citizen lawsuits. States could even empower right-wing plaintiffs to bring a torrent of spurious libel lawsuits against mainstream media organizations, which would severely restrict freedom of the press. The damage the conservative justices could to our democratic republic is totally frightening.