All bets are off. There is no way of knowing what the US Supreme Court will do next. The new scope of possibility is clearly signaled in Justice Clarence Thomas’ opinion supporting the court’s decision overturning Roe v Wade and restoring the power of each state to regulate women’s wombs.
The “conservative” majority’s ruling turns on the application of the “due process” provision in the US Constitution which provided the bedrock for previous judgments giving legal protection to various privacy rights that are not explicitly mentioned. Due process, they have now decided, does not extend to abortion.
Thomas wrote that the court should now also reconsider its other due process precedents, expressly referencing the historic judgments that recognised the rights to same-sex marriage, contraception and homosexual sex.
Funnily enough, Thomas didn’t say whether he also thinks Loving v Virginia, a 1967 case which invalidated laws banning interracial marriage and was also based on the due process clause, should be overturned as well. Thomas’ own marriage is interracial, but that’s probably by the by.
The other majority judges haven’t gone so far, but there’s no reason to think they won’t. The abortion decision comes straight after another shattering judgment, in which a 6-3 majority invalidated New York State’s “Sullivan Law”, dating from 1911, which made it a crime to possess a handgun without a licence. According to the judges, that law offended the 2nd and 14th Amendments, which they ruled “protect the right of an ordinary, law-abiding citizen … to carry handguns publicly for their self-defense”.
One can debate the legal points, as the majority and minority justices have done, around what the drafters of the constitution and its amendments intended. It’s an increasingly ridiculous pursuit; the founding fathers gave no thought to privacy rights, which didn’t exist back then, nor to how the importance (to them) of maintaining a “well regulated militia” might be interpreted two centuries later.
The lunacy of that situation points to the dangers inherent in a system of codified human rights; what you can end up with, as America has, is a random assortment of completely inapt protections and no capacity for making sensible adjustments. If Australia ever gets its act together on human rights, we should pay careful attention to the object lesson when deciding which ones are truly universal.
However, that’s not the real problem for the United States. These two judgments are not acts of judicial adventurism or even activism; they have nothing at all to do with the duty or function of being a judge. These judges are actors, in the pejorative sense. They were put in their life-tenure seats on the Supreme Court to do exactly what they’re now fully emboldened to do: remake America as a Christian theocracy.
This is the culmination of a long-term project, which has evolved — beginning with the Reagan administration and reaching its sordid endpoint under Trump — into the modern defining mission of the Republican Party. It no longer cares about government, because its eyes are solely on the main prize: cultural power. Stacking the court is its raison d’etre, and the job is now done.
You can tell how devastatingly destructive what these judges have done is, by the fact that the only practical strategy being considered by the Democrats (who, remember, currently control both houses of Congress as well as the presidency) is the radical idea of adding more judges to the Supreme Court bench (already overstuffed with nine) to re-stack it with a liberal-leaning majority. That’s just a sad acknowledgement that cynicism has won.
The truth is that the Supreme Court, the peak of the judicial branch of government, the ultimate constitutional bulwark against the excesses of the legislative and executive arms, has destroyed its own integrity. It no longer stands for anything except its own corrupted capacity to manipulate the law to ends that have nothing to do with its sacred trust. It is a player, pure and simple.
All constitutional arrangements are fragile, ours as much as America’s. Theirs was built with deep design flaws, which are now being wielded for destructive purpose. The people busily engaged in that project, including the justices currently disgracing their office, have no real interest in democracy. They want to live in the America of their small imaginations: white, straight, patriarchal, Christian and mean.
To put it another way, the racists, misogynists, homophobes and religious bigots have overrun the temple and are busily lighting torches. If they could find a way to get around the 13th Amendment and reinstitute slavery, don’t assume they wouldn’t.
For those who have been fearing that America may be broken beyond repair, this looks very much like the end of the last hope. The people already know they cannot look to Congress to heal their country’s wounds; now the institution that has for so long stood as the backstop of fundamental equality — the Supreme Court — is occupied by zealots.
That just leaves the presidency, ironically the arm of government which the founding fathers were most worried might destroy their precious democracy and consequently awarded the least actual power.
