The United States Supreme Court has often been described as “the least dangerous branch” of our tripartite form of government because although it has the ultimate power to say what the law is, it has no power to enforce its rulings. But that is too facile and inaccurate a description and belies the danger that it poses when, as now, it is controlled by a majority of justices who are radical ideologues and whose undeniable purpose is to upend decades and even centuries of well established precedent by which we have been governed.
While it is true that the court cannot enforce its decisions, the potential danger inherent in the power of the court is that its decisions have historically been honored as the law of the land and the court’s pronouncements can, and do, set the law for multiple generations and are not easily overturned.
Take for example one of the most pernicious decisions in the court’s history — Plessy v. Ferguson decided in 1896. In Plessy, the court upheld the “separate but equal” doctrine that shackled this country with legal segregation for more than half a century until the Court’s 1954 decision in Brown v. Board of Education overturned Plessy.
Even then, it took decades for both the federal and state courts and legislatures to implement Brown, a task that is still not complete. Imagine what our country might be like today if Plessy had not gone the way it did — we would have begun the work in 1896 of eradicating the systemic racism that still lays upon our country as a curse.
We are now living with a radicalized court that is rolling back well-established precedent on fundamental rights. If it is allowed to continue without correction through the democratic legislative process we are in danger of losing our democracy.
A few of the most egregious examples:
Since the ratification of the Constitution in 1788, courts, including the Supreme Court, never questioned — and indeed treated the matter as a foregone conclusion — that the 2nd Amendment, which expressly ties gun rights to “well regulated militias,” never stood for the proposition that individuals had an individual right to own a handgun or long arm.
Until, that is, 220 years later when Justice Antonin Scalia got his hands on it in District of Columbia v. Heller. Through a tortuous reading of the language of the amendment and a disingenuous polemic on the history of gun laws in the United States, Scalia and his four conservative brethren effectively took gun control out of the hands of federal and state legislatures and enshrined it in the Constitution.
And the Court is about to expand upon Heller this term. Heller held that a person has a right to own a gun — including guns made for war like the AR-15 — in the home for “home protection.” The case before the court this term, New York State Rifle & Pistol Association v. Bruen, will decide whether people have an unfettered right to carry concealed weapons in public. There is little doubt what the court will decide.
As Chief Justice Warren Burger, a conservative Republican appointed by Republican President Richard Nixon, bluntly stated in 1990, decades before the Heller decision: “The gun lobby’s interpretation of the Second Amendment is one of the greatest pieces of fraud, I repeat the word fraud, on the American people by special interest groups that I have ever seen in my lifetime. The real purpose of the Second Amendment was to ensure that state armies -– the militia -– would be maintained for the defense of the state. The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires.”
This year we will likely see the court overturn Roe v. Wade, the 1973 decision that recognized a woman’s fundamental right to make her own decision to end a pregnancy.
One could fill a small public library with everything that has been written, both pro and con, about Roe. But what the decision stood for is the fundamental and inalienable right of a woman to control her own reproductive destiny in a free society.
It is easy to forget that Roe was a 7-2 decision which was subsequently upheld two decades later in Casey v. Planned Parenthood. The Casey decision was penned by Justice Anthony Kennedy, a staunch conservative, who was joined in the decision by another iconic conservative justice, Sandra Day O’Connor.
Justice Kennedy distilled the issue to its essence: “[Abortion is one of] the most intimate and personal choices a person may make in a lifetime, [a choice] central to personal dignity and autonomy, … central to the liberty protected by the Fourteenth Amendment. … At the heart of liberty is the right to define one’s own concept of existence.…Belief about these matters could not define the attributes of personhood were they formed under the compulsion of the state.”
It was painfully obvious listening to the oral arguments before the court this past fall in the Mississippi abortion case that the court could not wait to overturn Roe. Justice Amy Coney Barrett distilled the court’s hostility to abortion best during oral argument when she breezily made the chilling, deeply disturbing and morally offensive remark that women who get pregnant, can simply carry their children to term and put them up for adoption. This, from a woman who belongs to a small religious sect — some say a cult — which bestowed upon her the honorific “Handmaid.”
On the right to vote
In 1965, Congress passed the Voting Rights Act pursuant to the express powers granted to it by the 14th and 15th Amendments to the Constitution. The purpose of the Act was to put an end to the 100-year Jim Crow era of racial discrimination in voting born in the south on the heels of the Civil War.
It is well documented that Chief Justice Roberts has nurtured hostility toward the VRA beginning early in his legal career when he was a law clerk to former Chief Justice William Rehnquist. (It is not without irony that Rehnquist, as a law clerk to former Justice Robert Jackson in 1954, is purported to have lobbied Jackson against supporting the Court’s decision in Brown v. Board of Education.)
The court, under Robert’s leadership, has now over the past decade succeeded in literally gutting the VRA, stripping away its enforcement provisions, in a pair of cases: Shelby County v. Holder in 2013, and again last year in Brnovich v. Democratic Nation Committee.
“Conservatives” rail against judges “legislating from the bench.” Yet it is difficult to imagine an example that smacks more of legislating from the bench than the court’s evisceration of the VRA which was duly passed by overwhelming majorities in both the House and Senate and which once proudly stood as one of the most consequential pieces of legislation passed in the country’s history to protect the very lifeblood of our Democracy — the right to vote.
Chief Justice Roberts said something during his confirmation hearing, which upon first impression sounded perfectly reasonable: “In ruling on cases it is only my job to call balls and strikes.”
But one can only assume that a man of his intelligence knew that that was disingenuous pablum served up for favorable uncritical consumption. He knows well that the business of the Supreme Court is not simply to “call balls and strikes.” The Supreme Court literally defines the constitutional strike zone and the current majority on the court is intent on radically altering that strike zone in dangerous ways that threaten both the core of our fundamental liberties and the continuation of our democracy.
David Rosengren is a retired attorney living in Essex.