By Kenneth Tiven in Washington
The second American Civil War has broken out, 161 years after slave-holding states attacked Fort Sumpter in South Carolina. This time, six Republican-appointed Supreme Court justices dismissed long standing judicial practices of the Court to make decisions that align with their political and religious ideologies. “On gun rights, abortion, religion and the environment they took a wrecking ball to the Court’s precedents and created bold new tests out of thin air, wrote political analyst Heather Parton, adding, “It was a breathtaking exercise of sheer institutional power—and they’re just getting started.”
The justices tossed out the longstanding principle of “stare decisis,” the idea that precedents are incrementally adjusted as critical to judicial continuity and popular respect. “This really is the ‘Yolo’ [you only live once] court,” said Leah Litman, a law professor at the University of Michigan who closely follows the Court. “I don’t think people fathom just how much more they will do.” The obvious and clear inference is that this Court wants to reduce the federal government’s role by a full century. Hardcore Make America Great Again adherents despise the New Deal of President Franklin Roosevelt, which, starting in 1933, modernised the role of government because it changed the mythical America their grandparents told them about.
The term just concluded is one of the most far-reaching and radical sessions of the Court in recent history. It swept away a 50-year-old national protection for abortion rights, enhancing what states can do now, going beyond already severe restrictions on a woman’s right. While the abortion ruling robbed women of their rights in many of the 50 states, it was the decision limiting the Environmental Protection Agency’s (EPA) ability to deal with the climate crisis that has domestic and international implications.
The Congress grants sweeping powers to regulatory agencies because they have the expertise to deal with issues. That’s why “protection” is in the Agency’s name. The Court blocked the EPA for overstepping its role on the basis of defending the Constitution’s separation of powers. The Court held it was overreach when the EPA used the Clean Air Act to interpret the “best system of emission reduction”. To reduce the CO2 problem, it wanted to restructure the nation’s power sector by ordering “generation shifting” in electricity production from coal to natural gas and renewables such as wind and solar. Generating companies and coal producers sued EPA.
The Congress, in its current state of political and ideological gridlock, can barely function. The Court’s new approach makes this a feature, not a bug, Libertarians and Conservatives loath the power of federal regulation. All the more reason to overturn established law in areas that the justices don’t agree with, such as contraception, gay marriage, and give these issues back to the states, notwithstanding the equal protection rights in the 14th Amendment ratified after the first civil war to protect newly freed citizens.
“I don’t think whatever gains women have made in the workplace and in political representation are guaranteed. If the Court moved us back to the nineteen-fifties in terms of access to contraception and abortion…we would have some of the same social and economic consequences we had then,” said Wendy Parmet, the co-director of the Center for Health Policy and Law at Northeastern University. Conservative legislators have already tightened access to contraception in several states. Science has nothing to do with why. The religious beliefs of a minority of Americans have replaced facts in law.
Justice Sonia Sotomayor and her liberal colleagues, were outvoted in all of these cases. She wondered aloud and doubted whether the Court would be able to survive the “stench” that would come from overturning Roe v Wade and the perception that the Court is a political body. On guns and religion, the Court’s rulings were consistent with the ideological belief that this is a White Christian nation with unfettered gun rights, a belief established in the quasi-mythical telling of how European settlers took North America from the indigenous tribes who had lived here for millennia.
America was founded on The Declaration of Independence. It embodied the radical idea that all men are created equal, yet the ensuing Constitution dodged the slavery issue. As America expanded westward, the issue of slavery was contentious since it made growing cotton profitable for sale to English textile factories of that era. So, equality had become a “proposition,” rather than “self-evident.”
Abraham Lincoln helped create the anti-slavery Republican Party, got elected, which caused the southern slave states to breakaway. In 1863, Lincoln explained, the Civil War was “testing whether that nation, or any nation so conceived and so dedicated, can long endure.” The Republican and Democratic parties switched philosophical sides after World War-II and following the desegregation of public schools in 1953.
Long time TV political reporter Dan Rather said: “Their black robes are meant to convey modesty, humility, and wisdom. Yet this collection of politicians demonstrates the direct opposite. This Supreme Court term will be remembered as the moment a cynical and anti-democratic movement, decades in the making, reached its zenith, empowered by bad faith and opportunism.”
Connecticut Senator Chris Murphy, a progressive on issues, analysed it this way: “The GOP agenda—criminalise abortion, ban gun control, deregulate business, and pollute more—is super unpopular. So, Republicans stopped trying to enact it in law and instead nominated politicians to the bench to get their agenda enacted by the unelected, unaccountable branch.”
The long-term goal is to remove federal regulation from issues that the conservatives want left to the states where they control 30 of the 50 legislatures. Those legislatures also control many aspects of voting regulations, which have never been given to a national election commission. A recent analysis suggests that White Christians are now just 45% of the US population and doing what they can to retain power. The nation may be locked for decades in minority rule.
Whether Donald Trump wins a second term, his impact is historic from the rare opportunity to fill three Supreme Court vacancies. Almost six years ago, this magazine asked if Trump’s election was the start of the second American Revolution. His Court appointments have set in motion a judicial war attuned to the mood of Trump’s political supporters. “We’re absolutely in a constitutional crisis,” said Lawrence Gostin, a law professor at Georgetown University and director of the World Health Organization’s Center on Global Health Law. “And our democracy is now one of the most fragile democracies among our peer nations. The terms of our democracy have really been eviscerated by the Supreme Court.”
By stripping women, girls, and other pregnant people of this longstanding constitutional right to abortion, approximately 26 states are poised to ban, or severely limit, abortion; some already have. In some of these states abortion bans make no exception for rape or incest.
Parton summed it up: “The 2021-2022 Supreme Court term will go down in infamy. The right-wing majority behaved as if they were kids in a candy store, stuffing their faces with all their favourite goodies knowing there was no one who could stop them and no one who could hold them accountable for having done it.”
The Court did announce that when the October term opens for business, they will hear a case regarding the “independent state legislatures” theory. This was a reference slipped by Justice Byron White into the Bush vs Gore decision that decided the presidential election of 2000. It is a hyper-literalist reading of the Constitution that would give state legislatures sole authority over their election laws for federal office. A ruling on this could effectively negate anything state courts, governors, or state agencies want to do on gerrymandering or election administration. Considering the intent of the conservative judges to lean towards enhancing the Republican effort to maintain election control, this will be another huge setback for American democracy.
—The writer has worked in senior positions at The Washington Post, NBC, ABC and CNN and also consults for several Indian channels