As someone who regularly writes about the courts and the law, I often feel more like an obituary writer. Hardly a week goes by without Republican judges killing a fundamental right of Americans, often inventing a reactionary new legal doctrine from whole cloth to do so.
Recent Republican Supreme Court Justices and lower court judges increasingly act like politicians in black robes, imposing on the nation Republican policies which can't be passed by democratically elected branches of government. Moving at record speed, in less than two years they've effectively rewritten the Constitution without going through the difficult process of amending it.
In doing so, they've endangered the very foundation of democracy—the rule of law—which promises that the nation is governed by law and not by the political prejudices of a few men (and even fewer women).
Does anyone honestly believe that Roe v. Wade would have been overturned were it not for a handful of men led by Mitch McConnell, Don McGahn, Tom Leo, and Donald Trump who blocked Merrick Garland's nomination and installed Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett?
By simply changing the Justice on The Supreme Court, they managed to jettison 50 years of precedent and overturn the constitutional right of women to control their bodies. As Sen. Josh Hawley proudly proclaimed, without Trump saying "he's going to nominate pro-life judges, we wouldn't have pro-life judges on the bench." The very notion that a President already knows how a potential Justice is going to rule on an issue as monumental as the constitutional right to an abortion is in direct conflict with the rule of law. And it demonstrates that Neil Kavanaugh, who promised Sen. Susan Collins that he wouldn't support overturning Roe, is a liar.
James Madison wrote "Constitutional interpretation must be left to the reasoned judgment of independent judges, rather than to the tumult and conflict of the political process.
It's now unconstitutional to prevent an 18-year-old spousal abuser under indictment for a violent felony from packing heat with its serial number shaved off at a summer camp or domestic abuse shelter. Really? This is the rule of law in a modern civilized nation? It's more like the rule of the jungle.
In contrast, Mitch McConnell has famously expressed the view that the best way to change the law is to change the judges. As McConnell proclaimed in a 2018 interview, lifetime judicial appointments "are the way you have the longest-lasting impact on the country."
By overturning Roe, restricting the EPA's authority to fight climate change, expanding the Second Amendment, eviscerating the separation of church and state, and undermining the Fourth Amendment, the radical Supreme Court has effectively implemented key elements of Republican and pro-corporate political policies.
SCOTUS Makes All Gun Laws That Didn’t Exist When the Constitution Was Written Unconstitutional
Clarence Thomas's radical opinion in New York State Rifle & Pistol Association v. Bruen has made even the most common sense gun regulations unconstitutional.
First, in District of Columbia v. Heller (2008), The Supreme Court ruled for the first time since the Constitution was enacted that the 2nd Amendment protects an individual's right to own a gun.
Here's the actual text of the 2nd Amendment: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
So-called "Textualist" Antoni Scalia's 5-4 majority opinion in Heller dismissed the clear text about a "well regulated Militia" as merely prefatory and disingenuously claimed that the only operative language was "the right of the people to keep and bear arms" outside the parameters of a militia. It overthrew the precedent of U.S. v Miller (1939) where SCOTUS had ruled that since ownership of a short-barreled shotgun does not have "some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."
But even Scalia's opinion held that "Like most rights, the right secured by the Second Amendment is not unlimited. [It is] not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." According to Scalia's opinion, examples of rights the 2nd Amendment does not protect include firearm possession by dangerous people, firearm possession in sensitive places such as schools and government buildings and conditions on the commercial sale of firearms.
After Heller, most lower courts followed a two-step test to decide if a gun control regulation is constitutional: First, whether the regulated conduct was protected by the 2nd Amendment and second, whether the state's justifications for the law outweighed the burden of the law on citizens' 2nd Amendment rights. This is very similar to the balancing test courts use to decide 1st Amendment cases. Under this approach, from 2008-2022 lower courts upheld many gun control laws.
Then in 2022, six Republican Justices gutted even Scalia's limitations on the reach of the 2nd Amendment.
Clarence Thomas' majority opinion in NY State Rifle & Pistol Association v. Bruen eliminated the second step entirely, holding that "[W]hen the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the nation's historical tradition of firearm regulation."
In other words, unless the government can prove that there was a similar gun control law in 1791 or 1867, gun control laws are presumed unconstitutional.
Lower federal courts have quickly followed SCOTUS' guidance to hold that:
- A spousal abuser has a constitutional right to gun ownership, since, according to the 5th Circuit Court of Appeals, "Our ancestors who wrote the laws [i.e white men] would never have accepted such restrictions."
- A long-standing federal law prohibiting people from possessing firearms with serial numbers that have been altered, obliterated or removed is unconstitutional since, per the Bruen legal rationale, serial numbers are not part of the "historical tradition of gun ownership." (Serial numbers didn't come into wide use until the late 19th century.)
- It is unconstitutional to prevent 18 to 20-year-olds from owning guns.
- It's unconstitutional to prevent someone under indictment for a felony from buying a gun.
- It's unconstitutional to ban carrying guns in summer camps, airports, Times Square, bars, cannabis dispensaries, theaters, stadiums, amusement parks, libraries, playgrounds, childcare programs, places serving individuals with developmental disabilities, homeless and family shelters, domestic violence shelters, and more. (Apparently there's no historical analogy since guns weren't banned from airports in 1789 or 1867.)
Under the "rule of law principles" as promulgated by five extremist Republican Justices and amplified by lower court judges, it's now unconstitutional to prevent an 18-year-old spousal abuser under indictment for a violent felony from packing heat with its serial number shaved off at a summer camp or domestic abuse shelter. Really? This is the rule of law in a modern civilized nation? It's more like the rule of the jungle.
SCOTUS Overturns the Constitutional Right to Privacy
Likewise, SCOTUS's ruling in Dobbs, overturning a woman's right to choose, has led to a string of even more frightening lower court decisions. Using a similar historical analogy rule as Bruen, Dobbs held that a constitutional right must be "deeply rooted in this Nation's history and tradition … The right to abortion does not fall within this category."
According to Roberts and his reactionary colleagues, if a regulation to limit greenhouse gases is tiny and not very effective, it's ok. But if it's actually big enough to make a difference on climate change, it's a "major question"
In his concurrence to Dobbs, Clarence Thomas even argued that precedents protecting the right to birth control in Griswold v. Connecticut, same-sex sexual relations in Lawrence v. Texas, and same-sex marriage in Obergefell are not deeply rooted in the nation's history and traditions and these precedents should be overturned by SCOTUS. (Notably, Thomas, who is in an interracial marriage with a "stop the steal" activist, does not mention Loving v Virginia upholding the constitutional right to interracial marriage as a candidate for reversal.)
Here are some of the lower court cases in the past few months that use the Dobbs reasoning to actually or potentially revoke women's reproductive health rights:
- A right-wing Christian federal judge ruled that women's health clinics federally funded under Title X may not supply birth control to teenagers without their parent's consent because one Texas parent wants to raise his daughters "in accordance with Christian teaching on matters of sexuality."
- In the next few weeks, a right-wing Texas judge is likely to issue a nationwide injunction against the most common abortion pill.
- Another right-wing Texas judge may block the Biden administration from requiring pharmacies to dispense the FDA-approved drug methotrexate, which can induce abortion but is also considered the gold standard for treating many autoimmune conditions.
SCOTUS Blocks Significant Regulation of Business
Last June, SCOTUS staged a virtual coup against government regulation of business in W. Virginia v. EPA. As I wrote in The American Prospect, "[W]hile the Republican Party, the Federalist Society, and their donors have packed the federal judiciary and the Supreme Court with anti-abortion and pro-gun radicals to fire up their base, their real motivation was to eventually undermine government regulation of business, much as SCOTUS overruled New Deal legislation in the 1930s until FDR's 'switch in time to save the nine' led to a new direction, which has survived, tenuously, until today."
The decision by the six extreme right-wing Justices blocked the EPA's authority to regulate greenhouse gases on a system-wide basis. Like his made-up doctrine of "corporate personhood" finding that corporations, like individuals, have a free speech right to make political contributions, John Roberts' opinion in this case was based on another made-up doctrine that appears nowhere in the Constitution or significant precedent, the so-called "major questions doctrine."
According to Roberts and his reactionary colleagues, if a regulation to limit greenhouse gases is tiny and not very effective, it's ok. But if it's actually big enough to make a difference on climate change, it's a "major question" that can't be regulated by the EPA's broad mandate from Congress to protect the environment. There's nothing "originalist" or "textualist" about this doctrine—Congress even named the Agency by its purpose: Environmental Protection. The decision is intended to further Republican's corporate campaign to shrink the "administrative state."
As Justice Kagan wrote in dissent, "The Court appoints itself—instead of Congress or the expert agency—the decisionmaker on climate policy. I cannot think of anything more frightening [emphasis added]."
And the danger goes beyond the threat of climate change. Since Roberts never defines what constitutes a "major question," he allows judges to decide on the fly that virtually any regulation they personally disagree with is unconstitutional. Conservatives claim their principles prevent courts from substituting their own policy preferences for the law as interpreted by the constitution's text and original intent. This demonstrates that these "principles" are bogus and right-wing judges feel free to ditch text and intent whenever it interferes with their political goals. Justice Kagan called the so-called major questions doctrine a "get out of text free card."
You can count on corporations and their right-wing legal allies to sue to block virtually every regulation they dislike as a violation of the "major questions doctrine"
Corporations and their extreme right-wing judicial allies are already using the "major questions doctrine" to seek to overturn other important regulations.
- A Texas federal court vacated President Biden's student loan forgiveness program, citing West Virginia v. EPA's major questions doctrine. Despite questionable legal standing by the plaintiffs SCOTUS heard the case and if it is consistent with West Virginia v. EPA, will likely deny debt relief to tens of millions of students.
- The Federal Trade Commission just proposed a regulation that would outlaw most "non-compete" clauses in employment contracts, which, for example, bar a burger-flipper at McDonald's from taking a job at Burger King for a higher salary. Recently retired Republican Federal Trade Commission member Christine Wilson wrote that "the major questions doctrine addressed in West Virginia v. EPA applies, and the Commission lacks clear Congressional authorization to undertake this initiative."
- The FTC is in the process of restoring anti-trust law to its prior importance by questioning anti-competitive practices which have gone unregulated for decades. Commissioner Wilson recently resigned in a huff, attacking the FTC in a Wall Street Journal op-ed article, claiming, inter alia, that the FTC is defying "the Supreme Court's decision in West Virginia v. EPA (2022), which held that an agency can't claim "to discover in a long-extant statute an unheralded power representing a transformative expansion in its regulatory authority." Her article is in effect a legal brief for Republicans to challenge virtually every new action to limit the power of monopolies and oligopolies.
You can count on corporations and their right-wing legal allies to sue to block virtually every regulation they dislike as a violation of the "major questions doctrine" and, under the precedent set by SCOTUS, for many of them to be struck down by their Republican judicial allies.
Who Bought the Rule of Law?
As Sen. Sheldon Whitehouse (Dem. R.I.) writes in his essential book The Scheme: How the Right Wing Used Dark Money to Capture the Supreme Court" "Truly, our present Supreme Court is The Court That Dark Money Built."
According to Whitehouse, a single anonymous donor spent more than $17 million to secure the nomination and confirmation of Gorsuch and Kavanaugh. At least $580 million has been spent by dark money groups to remake the federal courts and to "cook up and push fringe legal theories that undermine even the federal government itself.
As The New York Times reported, West Virginia v. EPA "is the product of a coordinated, multiyear strategy by Republican attorneys general, conservative legal activists and their funders, several with ties to the oil and coal industries, to use the judicial system to rewrite environmental law, weakening the executive branch's ability to tackle global warming."
The plaintiffs in that case share many of the same donors as the campaigns to confirm five of the current Republican Justices—Roberts, Alito, Gorsuch, Kavanaugh and Coney Barrett. Per The Times, "[t]he ultimate goal of the Republican activists, people involved in the effort say, is to overturn the legal doctrine by which Congress has delegated authority to federal agencies to regulate the environment, health care, workplace safety, telecommunications, the financial sector and more."
As Federal Society activist and Trump's White House Counsel Don McGahn--who picked and shepherded the confirmation of Trump judges--bragged to CPAC, "Well, it's not a coincidence. It's part of a larger, larger plan I suppose. There is a coherent plan where, actually, the judicial selection and the deregulatory efforts are really the flip side of the same coin [emphasis added]."
Mitch McConnell toldTIME magazine, "when Donald Trump won, a week after the election I called Don McGahn… [A]nd I said Don, we've got an opportunity here to have a huge long-term impact on the country…. The tax bill was hugely important, but as soon as the government changes, believe me, they'll revisit the tax code. But here you have an opportunity, particularly if you get highly intelligent, relatively young people into lifetime positions, you can have a long-term impact on the country. So that's what we're in the process of doing…"
McConnell, McGahn, and Trump managed to confirm 234 right-wing judges including three Supreme Court Justices. Moving at lightning speed, they already remade the Constitution through judicial fiat.
It's a long-running coup against the rule of law, far more successful than January 6th.
Can Anything Be Done?
It's hard to come up with an easy fix for the Republicans' successful campaign to pack the Supreme Court and lower courts with right-wing activists who are remaking the law and the Constitution to enact their political goals. Quite frankly, Mitch McConnell and the Federalist Society have outplayed Democrats on judicial appointments for decades.
Only 24 Senate Democrats voted to filibuster Alito's nomination to replace the relatively moderate Sandra Day O'Connor. 22 Democrats voted to confirm John Roberts. Although they had a Senate majority, 11 Democrats voted to confirm Clarence Thomas to replace civil rights lion Thurgood Marshall, despite credible charges of sexual harassment.
Quite frankly, Mitch McConnell and the Federalist Society have outplayed Democrats on judicial appointments for decades.
In contrast, McConnell and his Republican colleagues have consistently played hardball. They refused to even give a hearing to Obama nominee Merrick Garland. Then after Trump became President, McConnell eliminated the filibuster for Supreme Court nominees to install Neil Gorsuch. Next, on a 50-48 party-line vote, he managed to confirm Brett Kavanaugh, despite credible charges of sexual harassment. Then, in contrast to his treatment of Merrick Garland, McConnell pushed through the confirmation of Amy Coney Barrett in a lame-duck session after Biden had won the Presidency and Democrats had won the Senate.
Gorsuch is 55 years old, Kavanaugh is 58 and Coney Barrett is 51. They will likely be voting to strike down constitutional rights and cripple the ability of the federal government to regulate corporations for decades. In order to rebalance the Court, two of Roberts (68), Alito (72), and Thomas (74) would have to die or become too ill to serve while Democrats control the Presidency and the Senate .
Short of that, unpacking the Court would necessitate passing the proposal to add more Justices to the Supreme Court. Otherwise, Gorsuch, Kavanaugh, and Coney Barrett will likely still be voting to undermine the rule of law in the 2040s or even 2050s.
If there's any chance to preserve the rule of law, progressives and Democrats have to become as aggressive and laser-focused on the courts
In addition, during the Trump Presidency, McConnell managed to confirm 232 District and Circuit Court judges, many of them extreme right-wing activists. Part of his success came from McConnell eliminating so-called Blue Slips for Circuit Court judges, an arcane Senate "courtesy" tradition that requires both Senators from the state where the judge would sit to sign off on the nomination.
Blue slips are still required for District Court judges. Biden has managed to confirm 100 judges so far, most in states with two Democratic Senators. 38 of the 56 District Court without a pending Biden nomination are in states with at least one Republican Senator.
Senate Judiciary Committee chair Dick Durbin could eliminate these Blue Slips with a stroke of the pen. Despite widespread calls, including by me, Durbin has inexplicably refused to do so. He recently said he'll respect Blue Slips as long as a Republican Senator's objections to Biden nominees aren't based on race, gender, or sexual orientation. (What about judicial philosophy?)
Durbin's position follows the tragic passivity of Democrats on judicial nominations, in sharp contrast to McConnell's and his corporate Republican allies' laser-focused judicial activism.
If there's any chance to preserve the rule of law, progressives and Democrats have to become as aggressive and laser-focused on the courts as McConnell and his corporate Republican allies.
This content originally appeared on Common Dreams and was authored by Miles Mogulescu.