What hath the Supreme Court wrought? by Marjorie Arons Barron

The entry below is being cross posted from Marjorie Arons Barron’s own bloig.

On this 247th celebration of our country’s birth, any American who believes in the progress of civilization must be rattling in the throes of PTSD. Over the last two years, the Supreme Court has managed to wipe out half a century of gains in achieving several foundational promises of our Constitution. We are shocked and saddened, but not surprised.

Of the hundreds of decisions made each year, it’s hard not to focus on the pivotal ones, more recently dealing with social justice and individual rights. Starting with the Dobbs decision last term, most of the precedent-breaking decisions have upended gains achieved since the 1970’s. In recent days, that means putting a vendor’s religious aversion to homosexuality and gender differences above a person’s rights to access goods and services formerly protected as public accommodations. The Court was so hellbent on reversing years of progress that they accepted and ruled on a fictitious case in which the alleged customer is a web designer himself, is straight and married, and never asked the plaintiff to create anything for him. So much for the doctrine that Justices rule only on actual live disputes.

Given the tone of last fall’s oral arguments, it was expected, but nonetheless disappointing that the Court decisively struck down affirmative action in higher education, a proven a measure of equal opportunity to many thousands of people from diverse backgrounds, including Justice Clarence Thomas, a longtime leader in the movement to kill affirmative action.

In a clever PR ploy, the Court held its most egregious decisions till the very end, after garnering positive media coverage with last week’s ruling against the radical “independent legislature” theory. If allowed, that would have turned over control of voting rights matters to state legislatures, without the check of judicial review. A majority of legislatures are now controlled by Republicans, many of them bad actors in 2020, and are poised to repeat their roles in 2024. That, as I wrote last week, may be the most significant SCOTUS decision of this recent term.

The Court also declined to take up lower courts’ rulings banning the FDA-approved abortion pill Mifepristone before the case is fully adjudicated. Nearly half of all abortions are medically induced, and that potential threat, in various forms, will doubtless get another chance in an upcoming term.

So it hasn’t been all bad. Just mostly. For that, we have to thank the Federalist Society, a network of conservatives and libertarians furious with the trend of the Court to view the Constitution as a living document and decide cases on the world in which we live. The Federalists embraced an alternative “strict constructionist” approach to statutory interpretation (also called originalist), claiming the original meaning of the Constitutional language is sacrosanct. They also urge (don’t giggle) fidelity to judicial restraint. Starting in 1982, the Federalist Society systematically started seeking out their type of (religious) conservative lawyers to boost for judgeships at the lower levels of the federal judiciary. In Federalist chapters at law schools, they groomed future foot soldiers in their cause. The Society persisted over decades, aided by deep-pockets conservative funders, to dominate all levels of the political system right to the very top. The six conservative members of SCOTUS are or were members of the Federalist Society.

With the help of Republican Presidents, some of whom had lost the popular vote, the takeover has been a jaw-dropping testament to the effectiveness of the Society’s long-term planning and implementation. (Donald Trump, to win conservative support in his 2016 campaign, pledged to choose judges based solely on the Federalist Society list.) Of the 20 Justices named since Richard Nixon, only five have been named by Democrats.

Gaming the system has helped too. Senate Majority Leader Mitch McConnell infamously hijacked Barack Obama’s nomination of Merrick Garland to replace the late Antonin Scalia. He never let it come to the floor of the Senate, while, under Donald Trump, he hypocritically greased the wheels for Amy Coney Barrett’s nomination, after the sainted RBG held on too long. This was the icing on the cake long baked by the Federalist Society to poison the process.

So where do we go from here? Colleges and universities have been preparing for the death blow to affirmative action for some time. They have developed workarounds to ensure the educational benefits of diverse student bodies to higher education campuses. The challenges to do so fairly are complex, going beyond the new recruitment programs already in place on many campuses. The problem is the decision sends a signal to other sectors, including corporations, that could dilute commitments to diversity in their hiring and promotion practices. (The more enlightened companies already understand the need for employees to have cross-cultural workforce competencies and the ability to appeal to different segments of the marketplace.)

Measures to reverse the Dobbs decision and protect reproductive freedoms are underway in state legislatures and among some in Congress. President Biden and Democratic Senators and Representatives are figuring out ways to relieve certain student debt burdens, some of which, as Senators Markey and Warren have noted, should have been Biden’s strategy in the first place.

But will these efforts be enough?

Needless to say, Democrats and Democrat-leaning independents need to sharpen their message about how elections count, and sometimes folks need to hold their noses and vote for candidates with whom they might not want to go out and have a beer but who will be in position to appoint justices to state and federal benches. Candidates lacking ideological purity may still be allies on critical issues. Democrats need to work harder at the School Committee and City Council levels, as well as to change state legislative and executive officials. It’s often the less sexy grunt work over time on down-ballot races that will make a difference.

One can only hope that some of the alt-right justices will eventually evolve from their patterns of thought. Think Eisenhower-appointed Chief Justices Earl Warren and William Brennan , Nixon-appointed Justices Harry Blackmun and Warren Burger, or George H.W. Bush-appointed Justice David Souter. (Of course, it can go the other way too, including Roosevelt appointee Felix Frankfurter and Kennedy appointee Byron “Whizzer” White, pegged as more liberal but ending up as conservatives.) Better to hope for Alito and Thomas to resign when the Democrats are in charge, but I’m not holding my breath.

So, fasten your seat belts. It’s going to be a bumpy ride. It’s important not to sit back and despair (tempting though that may be.) There are municipal elections this fall, and federal races underway, especially important in a handful of battleground states. Nothing must be taken for granted.