A Not So Supreme Decision, by Rich Paschall
When the news leaked that the Supreme Court was going to overturn Roe vs Wade, it was quite a shock to the nation. Wasn’t this 1973 decision a matter of settled law? The case was decided by a 7-2 vote, after all. Wasn’t the court inclined to follow the precedent set by previous decisions? The abortion ruling had been challenged before. In 1992 the Supreme Court reaffirmed the Roe decision in a challenge that was brought in Planned Parenthood vs. Casey. Three Republican appointees Justices Anthony Kennedy, David Souter, and Sandra O’Connor voted in favor of NOT overturning Roe. That was a time when Republican appointees were still there to follow the law. That does not seem to be the case now.
“The Supreme Court of the United States has held that Roe v. Wade, that a fetus is not a person for purposes of the 14th Amendment… That’s the law of the land, I accept the law of the land, senator. Yes,” – Neil Gorsuch to Senator Durbin, March 2017 confirmation hearings.
“As a judge, it is an important precedent of the Supreme Court. By ‘it,’ I mean Roe v. Wade and Planned Parenthood v. Casey, been affirmed many times. Casey is precedent on precedent.” – Brett Kavanaugh to Senator Feinstein, September 2018.
“I’m answering a lot of questions about Roe, which I think indicates that Roe doesn’t fall in that category (a “super-precedent”) And scholars across the spectrum say that doesn’t mean that Roe should be overruled. But descriptively, it does mean that it’s not a case that everyone has accepted and doesn’t call for its overruling.” – Amy Coney Barrett in confirmation hearings, October 2020.
While Justice Barrett may have been a bit vague in confirmation hearings, she did say she would not let her personal religious views affect her legal decision-making. Were all of the Trump appointees lying to Congress in their confirmation hearings? Are they placed on the Supreme Court to do the bidding of the ultra-right wing of the Republican party? Will they be rolling back protections in other areas of civil and human rights?
Justice Clarence Thomas has already indicated as much in a written “concurring opinion” to the decision to overturn Wade. “In future cases, we should reconsider all of this Court’s substantive due process precedents,” Thomas wrote “Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents.” He specifically mentioned cases regarding contraception and same-sex marriage. That could be a signal to the ultra-right to bring such challenges to the court again so they can toss out those protections as well.
Lost in all the furor over Roe were decisions made by the same conservative justices in other 6-3 rulings. In NEW YORK STATE RIFLE & PISTOL ASSOC. V. BRUEN the group struck down a long-standing New York law regarding carrying handguns in public. This will put similar laws in other states at risk. If you are thinking that a Democratic majority will be able to strengthen gun control after the mid-terms, think again. The NRA or one of its members would likely challenge any new law and you already know what the appeals court or the Supreme Court will decide.
In WEST VIRGINIA V. ENVIRONMENTAL PROTECTION AGENCY the court limited the power of the EPA to reduce carbon emissions. This is a blow to the current administration’s desire to promote clean energy and battle climate change.
Although the federal government has set workplace standards many times through OSHA (Occupational Safety and Health Administration) and other federal agencies, a 6-3 decision in NATIONAL FEDERATION OF INDEPENDENT BUSINESS V. DEPARTMENT OF LABOR struck down a requirement for COVID-19 vaccination or testing at the nation’s largest companies.
The Conservative Six got behind school prayer rather than maintaining a separation of Church and State. In KENNEDY V. BREMERTON SCHOOL DISTRICT the court upheld a coach’s right to pray at the 50-yard line of a football game. Some thought his players felt pressured to join in.
In addition to three Supreme Court appointments made by Donald Trump, he is also responsible for 53 circuit judges to the US Court of Appeals, or close to one-third of all circuit judges. He appointed 171 federal district judges or about 28 percent of the current total. A cynic might say that Senator McConnell pushed through these appointments while he was Senate majority leader as a way of protecting Republicans against criminal prosecution. If the former president is found guilty of violating The Espionage Act, for example, what are the odds that one of his appointees or the Supreme Court will let him off the hook?
How many of these Trump judges are there to actually uphold the Constitution of the United States of America? Since the Supreme Court has already demonstrated its willingness to ignore legal precedent and reinterpret the law, what is the probability that some or all these other Trump appointees will do the same?
Sources include: “What the Trump-appointed Supreme Court justices previously said about Roe’s precedent,” ByMeredith Deliso ABC News, abcnewsgo.com June 24,2022.
“Justice Thomas hints gay rights and contraception at risk after conservative majority overturns Roe v. Wade,” by Chris Morris, Fortune, fortune.com June 24, 2022.
“How the Supreme Court ruled in the major decisions of 2022,” By Ann E. Marimow, Aadit Tambe, and Adrian Blanco, The Washington Post, washingtonpost.com June 30, 2022.