The Revolutionary Tribunal
The US Supreme Court has become a Republican law enforcement tribunal ... Abortions, guns, religion, environment ... Cherry-picked legal reasoning ... Historical inaccuracies ... Worse to come ... Same sex marriage in Texas ... Washington correspondent Roger Fitch files
"[I]n future cases, we should reconsider all of this Court's substantive due process precedents, including Griswold [contraception], Lawrence [same-sex relationships], and Obergefell [gay marriage] ... Because any substantive due process decision is 'demonstrably erroneous' ... we have a duty to 'correct the error' established in those precedents".
Clarence Thomas, concurrence overruling Roe v Wade.
"The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them. The majority thereby substitutes a rule by judges for the rule of law."
Dobbs dissent.
"They did it because they could. It was as simple as that."
Linda Greenhouse.
The supreme court's first full term with three Trumpistes ended with a week from hell.
No longer a court, it's become a revolutionary tribunal, a Comité de Salut Public of six instead of twelve.
Six radical justices, led by Alito and Thomas, achieved a trifecta: public funding for religious schools (the First Amendment separation of church and state notwithstanding), unlimited guns on the streets of "blue" states (despite long-standing regulations in those states) and then, the greatest prize of all for dutiful evangelicals and right-wing Catholics, the end of legal abortions in Republican-ruled states, whether regulated, medically-required or any other reason, including rape and incest.
The abortion decision, Dobbs v Jackson Women's Health was the worst; as feared, Justice Sam Alito overruled Roe v Wade (1973), the case establishing abortion rights. For the first time, the court withdrew an established constitutional right. Cruel persecutions may follow.
The momentum for overruling Roe was recent, following the Republican sweep of state legislatures in 2010, yet in 12 years, a religious minority turned the court.
Dobbs' basis in US history and law was shaky. The Post's Dana Milbank was struck by the majority's inconsistent embrace of the 13th-century legal treatise by the misogynist Henry de Bracton to justify an abortion ban, one day after the same justices rejected, in the gun-carry case, the relevance of the 13th century Statute of Northampton, an English law that was actually adopted in American colonies.
The New Republic and Slate predicted dire flow-on consequences. Is this where Sam Alito and Clarence Thomas are headed, post-Dobbs, an America where multiple rights outlined in the constitution, and especially the 14th amendment, are threatened by a partisan judicial philosophy?
It's unclear if this determined supreme court clique will green-light the inevitable efforts by abortion-banning states to interfere with the FDA-approved abortion drugs used in half of the abortion treatments in the US. The states may not have the power to ban drugs approved and regulated by the FDA, which can use its regulatory powers to pre-empt state interference ("cover the field").
Other options include use of federal facilities or tribal land in restrictive states.
The same six justices decided the schools case from Maine, Carson v Makin, where the Catholic church and its fundamentalist allies finally achieved their long-held goal of forcing state support for religious schools.
The First Amendment's religious clause is clear: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
In the militant Carson decision, however, a theocratic majority turned separation of church and state on its head, dismantling the Establishment clause in order to privilege Free Exercise.
A prescient Maine anticipated the court's Christian mischief, with a cunning plan, apparently successful, to deter the Carson plaintiffs: a recently-enacted state law requires private schools who seek public money to agree to the non-discrimination laws applicable to public schools, as a condition of funding.
Another supreme court religious incursion into education in June, Kennedy v Bremerton School District (the "praying-coach case"), won't be so easy to fix.
The day before Dobbs, the same six justices, led by Clarence Thomas, issued an historically-false and maximalist gun-use decision, in New York State Rifle and Pistol Association v Bruen. Legal comment criticised the peculiar historical methodology and cherry-picked history in the "handgun-carry" opinion.
State governments might work around the nihilistic Bruen decision by using Maine's model: take Justice Thomas's statement that guns can be banned in "sensitive places", and expand the list to include peaceful assemblies, transport and much more, as New York just did. Gun-carrying may require prohibitively-expensive liability insurance.
The court compromised other rights in Egbert v Boule and Vega v Teko; the latter weakened the Miranda warning.
Clarence Thomas: having fun
Landmark tribal rights only recognised in 2020 in McGirt v Oklahoma were clawed back by the newly-constituted court in Oklahoma v Castro-Huerta.
The supreme court saved its most consequential decision for its final day. In 2007, Massachusetts v EPA held that the Environmental Protections Agency had a congressional mandate to regulate greenhouse gas emissions, under the Clean Air Act 1970 . Now, before the Biden administration even issued regulations, the EPA's powers were decimated, in a rare and suspect use by the court of the "major questions doctrine", i.e, the non-delegation principle.
West Virginia v EPA's fallout will be cataclysmic, handcuffing Biden's climate efforts; unobtainable new legislation will be required before the administration can begin implementing ambitious climate-control policies first proposed in Obama's 2015 Clean Power Plan. More here and here.
The court's last opinions included two favouring Democrats: the court allowed President Biden to end the Trump policy requiring asylum seekers to remain in Mexico while their applications were considered, and it also upheld, over religious claims, a New York vaccine mandate.
The court's remaining targets include what's left of the Voting Rights Act 1965. Judging from recent shadow docket orders, racist gerrymanders will be permitted.
Little of the VRA survives, nine years after Shelby County v Holder eliminated the core of the near-unanimously re-enacted Act, based on CJ Roberts' claim that racial discrimination in American elections was a thing of the past.
Also on next term's docket: the terrifying new "independent state legislature" theory. More here.
And so a "June of doom" ended the 2021 court term. Statistically, it was the court's least productive term.
Justices well to the right of Americans imposed and reinforced minority rule.
Republicans now own the court.
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The 100% Republican Texas Supreme Court quickly revived the state's defunct 1925 abortion ban.
Now, inspired by Justice Thomas's suggestion in Dobbs that same-sex relations and marriage be reconsidered, Ken Paxton, Texas's long-indicted, soon-to-be-disbarred AG, the worst lawyer in Texas, says he's ready to enforce the dormant state sodomy law that was struck down by the US supreme court in Lawrence v Texas, precursor to Obergefell.
Paxton is getting worked up about nothing: the earliest-recorded same-sex marriages in North America, described by the European Cabeze de Vaca in 1542, were among Texas men.
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