Long before the U.S. Supreme Court launched its new term Monday, it was clear that more than the usual lower court rulings would be on trial this term for several reasons. First, Americans are seeing the nine justices less and less like careful, impartial and independent interpreters of the law and more like political hacks. Don’t take our word for it: That’s what the latest Gallup polling numbers show. Public approval of the court is down to 40%, the lowest ever recorded by Gallup since it began asking the question in 2000. But second, the six-member conservative majority appears ready to do some serious rewriting of U.S. laws, beginning with women’s reproductive rights and likely extending to Second Amendment and religious rights, as well. Is anyone shocked by that? It’s what President Donald Trump promised with his appointments, and it’s what other leading Republicans, including Senate Minority Leader Mitch McConnell, have been counting on for years.
Yet what happens when the barking dog finally catches up to the car? The Supreme Court’s majority is so out of step with public sentiment in the U.S. that it is likely to make rulings that many Americans will find deeply disconcerting. That was foreshadowed in the court’s “shadow docket” decision last month to let stand a Texas law that bans abortion after six weeks of pregnancy even in cases of rape or incest. The measure was unusual in that it left enforcement to private lawsuits, but the adverse effect on women’s constitutional rights as spelled out in Roe v. Wade was obvious. Still, five justices did not care. They were only too happy to vote 5-4, without live argument or public scrutiny, to let Texas shut down its abortion providers while the law is litigated. And now what lies ahead? In less than two months, the court is expected to hear a Mississippi case that bans abortion at 15 weeks and represents the most serious challenge to Roe in years.
Small wonder that women in Maryland and elsewhere were driven to public protests this past weekend. They see the writing on the wall. But they are not alone. There is a pending New York case that could ban state restrictions on carrying handguns outside the home, a potential triumph for guns rights activists but potentially disastrous for efforts to reduce gun violence in cities like Baltimore. A case from Maine could require taxpayers to help pay for religious education, a serious breach of the long-standing separation of church and state. What happened to the days when Americans could give little thought to the nation’s highest court? Perhaps missing since the religious right made appointments of judges who share their social outlook and beliefs the highest priority for their elected officials. Now, they are simply reaping what they sowed.
Given this reality, it’s almost comical for arch-conservative justices like Samuel Alito to stand up at favored venues like the University of Notre Dame and announce that the Supreme Court is “not a dangerous cabal.” Last week, he took issue with the court’s emergency docket being described as shadowy by the media and others, and described it as an effort to intimidate the court. But he did not mention in his Notre Dame lecture that the harshest criticism to date came from fellow Justice Elena Kagan, who rightfully sees the Texas law as patently unconstitutional. In her Texas dissent, she further observed as troubling the court’s increasing reliance on the shadow docket — to the extent that “every day [it] becomes more unreasoned, inconsistent, and impossible to defend.” But yes, sure, let’s blame this on the media, which is, of course, the sort of thing partisan hacks do to shield dangerous cabals.
Clearly, Justice Kagan is on to something. Justice Amy Coney Barrett felt the sting of criticism so much that she defended the court as “not comprised of a bunch of partisan hacks” in a speech just days after the Texas decision. And where did she take this brave stand? Beside an adoring Minority Leader McConnell, who rammed her appointment through the U.S. Senate just eight days prior to the last election, at an event commemorating the 30th anniversary of, wait for it, the McConnell Center at the University of Louisville. Conservatives love the newest member of the court because she took the seat formerly held by liberal icon Ruth Bader Ginsburg ensuring that Chief Justice John Roberts can no longer restrain the court’s conservative ideologues. So Justice Barrett’s obliviousness to partisan politics is either because she slept through her appointment or self-awareness is not her strong suit.
Granted, we can’t predict how the nation’s highest court will decide these and other controversial issues in the months ahead. But we can be assured that when they do rewrite the Constitution to their liking, the conservative majority will claim politics had nothing to do with it.
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