The US Supreme Court’s controversial agenda

Jennifer VenisTuesday 20 September 2022

Image credit: Representatives Andy Levin (D-MI) and Rashida Tlaib (D-MI) are detained during an abortion rights protest outside of the US Supreme Court in Washington, DC, 19 July 2022. REUTERS/Sarah Silbiger

Donald Trump may no longer be President, but his destructive influence on democracy and rule of law continues. Nowhere more so than the Supreme Court.

Bill Ide, former President of the American Bar Association, says that: ‘Conservatives in [the US] have been working for 40 years to change the balance of power with the Democrats.’

‘They made it clear that they want to gain control of the courts to uphold their political goals, which is so abusive of courts. If you don’t have public trust in the independence of SCOTUS you really defeat the system’, he says.

In its most recent term, the supermajority delivered several sweeping decisions, with one fulfilling a key Trump campaign promise: the eradication of a constitutional right to abortion that has been in place for 49 years.

The decision in Dobbs v Jackson Women’s Health Organization overturned the cases Roe v Wade and Planned Parenthood v Casey to give states free reign to restrict access to abortion.

Eleven states have banned abortion completely or retracted the gestational limit on abortions up to six weeks of pregnancy. Before Dobbs, Americans had a constitutional right to abortion up to 24 weeks of pregnancy.

Other states have begun rolling back the gestational limit to 15 weeks, for example, while some have faced confusion about whether centuries-old laws are at play. Reproductive rights groups expect 26 states in total to ban abortion to some extent.

Many restrictions have been extreme, with some offering few or no exceptions for cases of rape, incest, fatal foetal abnormalities and even danger to the mother’s health. Where exceptions are allowed, a lack of clarity over the restrictions has reportedly led to abortion care being denied by healthcare providers concerned about criminalisation.

This confusion has also reportedly complicated access to unrelated medicines that may have an impact on a pregnancy’s viability. Women who are not and do not intend to become pregnant have claimed that certain prescriptions have been blocked by providers unsure about whether it’s legal to fulfil them.

‘When you get a court that reverses stare decisis, when that stability has been a strong concept in the law, and you pull the rug out from under 50 years of an approach without considering the impact, it’s so dogmatic’, says Ide. ‘Historically, good justices and courts would spend a lot of time considering how to provide direction without huge disruption, but stare decisis and how society is really living doesn’t seem to mean that much to this Court.’

Laying out an agenda

‘This Court has a political agenda and they’re very blatant about it. They laid it out with Dobbs, and in his concurring opinion Justice [Clarence] Thomas suggested the Court ought to reverse other previous opinions’, Ide says.

David Janovsky, Analyst for the Constitution Project at the Project on Government Oversight (POGO), says that although the Court ‘too often fails to be a beacon of or source of protection for individual rights […] it’s not typically been the case that individual rights, once articulated, are subject to be revoked. And so, to the extent those kinds of rollbacks are on the table, that is very troubling.’

Other SCOTUS decisions have also furthered a conservative agenda. While many Americans call for greater gun control, the 6–3 supermajority ruled that New York’s strict restrictions on carrying concealed firearms violated the Second Amendment to the US Constitution.

The line between church and state was chipped away at in Carson v Makin, with the Court majority ruling that excluding religious schools from a state tuition programme in Maine violates free exercise of religion. In another case, the Court confirmed a public high school football coach had the right to lead players in prayers at the 50-yard line.

The supermajority also curtailed the US Environmental Protection Agency’s ability to regulate the energy sector, setting the country up to take a backwards step on tackling climate breakdown.

‘By design, the Supreme Court is linked to the partisan branches through the nomination and confirmation processes. But last term’s decisions came after a years-long effort by partisans whose public goals were to appoint justices who would produce specific outcomes’, Janovsky says. ‘The fact that the Court did in fact rule in those ways as soon as a critical number of like-minded justices were on the bench illustrates the extent to which the Court is driven by results, rather than purely legal reasoning.’

For some, the perceived politicisation of SCOTUS is exacerbated by recent controversies and a sense of minority rule. Justice Samuel Alito, author of the Dobbs decision, was appointed by a president – George W Bush – who didn’t win the popular vote, in the 2000 election where a SCOTUS case decided the outcome.

Three further members of the supermajority were appointed by President Trump, who also didn’t win the popular vote. Two of those had controversial confirmation processes. Justice Brett Kavanaugh was confirmed despite a sexual harassment allegation, which he denies. Justice Coney Barrett was confirmed in the last days of Trump’s presidency, despite former President Barack Obama being blocked from appointing a pick for the Court in the final year of his presidency, because of Republican concerns that the process was too close in timing to the 2016 presidential election.

More recently, the congressional committee investigating the 6 January insurrection at the US Capitol in 2021 asked Justice Thomas’s wife, Virginia, to testify in light of documents it received revealing communications between her and White House staff over efforts to overturn the 2020 presidential election. In a statement, Virginia Thomas’s lawyer said there was not ‘sufficient basis’ for her to testify. The revelations, nevertheless, spurred debate about Justice Thomas’s participation in election-related cases before SCOTUS. Global Insight contacted the Court for comment but did not receive a response.

Pressure points

Janovsky’s organisation, POGO, believes SCOTUS is the only US court at federal or state level without an explicit written code of conduct. This is just one of a ‘set of pressures that are together adding up to undermine the Court as an institution above the fray of politics’, says Janovsky.

For Ide: ‘Our democracy is on a collision course, because [extremist group] the Proud Boys and the white supremacists have now been legitimised. The SCOTUS rulings are really going to stoke the fire because they’re reflective more of the conservative right, which is not what most of the country is.’

The next SCOTUS term is set to be equally charged, and Ide highlights a case, pending before the Court, on the redistricting of congressional maps in North Carolina that could have a huge impact on future elections.

Ide believes conservatives have a twofold strategy to maintain political control in the face of ‘demographics going the wrong way for them’. They want, firstly, to win state houses in swing states, and secondly, to utilise that to control redistricting, elections and their outcomes. ‘To do that, they need the Supreme Court to step up’, he says.

In the upcoming North Carolina case, SCOTUS will rule on the merits of the Independent State Legislature (ISL) doctrine, which advocates limited oversight of state legislatures by state courts. The decision could nullify state constitutional provisions on federal elections, eliminate judicial oversight and enable voter suppression.

In North Carolina, the Republican-held state legislature developed a redistricting plan that was blocked by the state’s Supreme Court over racial discrimination concerns. ‘Now, the question for SCOTUS is whether the state’s Supreme Court has jurisdiction to review the redistricting plan’, says Ide.

He believes the ISL could allow a minority political party to utilise gerrymandering – the manipulation of electoral map boundaries for the gain of a particular faction – to seize control of overseeing state elections.

Ide adds that conservatives have also passed dozens of amendments to state elections laws, ostensibly to reduce fraud even where there has been no evidence of issues. ‘When you study them, you see it’s making it harder for voters who vote classically Democrat or independent.’

Women's March activists attend a protest in the wake of the US Supreme Court's decision to overturn the landmark Roe v Wade abortion decision, in front of the White House in Washington, DC, 9 July 2022. REUTERS/Michael A. McCoy

The strategy, Ide suggests, is for ‘problematic’ votes under these laws to be flagged to state legislatures, which could then dismiss the votes, changing the count. If the decision was disputed in court and appealed up to SCOTUS after it has already ruled in the North Carolina legislature’s favour, then ‘that’s the end. The votes don’t count.’

The not-for-profit organisation the Brennan Center for Justice, based in New York, writes that: ‘The nightmare scenario is that a legislature, displeased with how an election official on the ground has interpreted her state’s election laws, would invoke the theory as a pretext to refuse to certify the results of a presidential election and instead select its own slate of electors. Indeed, this isn’t far from the plan attempted by Trump allies following his loss in the 2020 election.’

According to Ide, ‘they would really be turning it into the rule-by-law, but they’ll dress it up like it’s part of our Constitutional framework, which is just not the case’.

Janovsky argues that ‘the ISL concept is a transparent attempt to circumvent a crucial source of voter protections – state courts and constitutions. It has no real support in historical practice, and the fact that the Court seems open to endorsing it is in itself radical.’

‘Among other things, this underscores how allowing just four justices to select the cases the Court will hear allows SCOTUS to go far outside the legal mainstream. It’s worth remembering the Court has not always had so much discretion over its docket’, he adds.

Ide worries that even lawyers are unaware of the upcoming case’s implications. ‘Scholars of the Constitution are very critical of ISL, but the problem is people are totally asleep on this, and we need to rally public opinion quickly’, he says.

He argues the business community, which depends on the rule of law for stability, must get involved. ‘At the moment you can’t say anything without being accused of being political, but they’ve got to learn how to talk about democracy. The rule of law is not political.’

Jennifer Venis is a freelance journalist and can be contacted at jennifer@jennifervenis.co.uk