Last week the US Supreme Court started its summer break, but it left behind an America that many believe has been fundamentally reshaped after a momentous series of decisions by the conservative majority on abortion, guns, the power of government agencies, and the role of religion in public life.
The series of decisions have spurred extensive condemnation outside conservative America and many are left wondering what, if anything, can be done.
“We’re absolutely in a constitutional crisis,” said Lawrence Gostin, a law professor at Georgetown University and director of the World Health Organization’s center on Global Health Law. “And our democracy is now one of the most fragile democracies among our peer nations.
“We haven’t fallen over the cliff – we still abide by the rule of law, more or less, and still have elections, more or less – but the terms of our democracy have really been eviscerated by the supreme court.”
The most consequential ruling of this term came on 24 June: on that day, a conservative super majority of justices struck down Roe v. Wade. The 1973 Supreme Court decision had held that US women have the Constitutional right to abortion.
By stripping women, girls, and other pregnant people of this longstanding constitutional right, approximately 26 states are poised to ban, or severely limit, abortion; some already have. Some of these states’ abortion bans make no exception for rape or incest.
“This decision not only goes against the will of the people – the majority of people support abortion rights, legal abortion – it goes against modern progress, the progress of history,” said Coco Das, an organizer in Texas with Rise Up 4 Abortion Rights. “It’s based on biblical literalism, a fundamentalist Christian fanatical movement.”
“We’re being hurled back decades, if not centuries, to be honest,” Das said, later adding: “They’re really trying to transform society to one that’s dominated on the basis of white supremacy, male supremacy, Christian supremacy. It’s very dangerous.
“Without the right to abortion, women can’t be free, and if women aren’t free, nobody’s free.”
On 23 June, the supreme court struck down a 1911 New York state gun law that imposed strict restrictions on carrying firearms outside the home. The decision, in New York State Rifle & Pistol Association v Bruen, came after mass shootings in Uvalde and Buffalo that left more than two dozen dead.
Conservative justice Clarence Thomas said that the state law – which had stipulated that anyone desiring to carry a handgun in public needed “proper cause” to do so – violated the second amendment right to bear arms.
“The decision ignores this shocking crisis of gun violence every day, engulfing not only New York, but our entire country,” said New York City mayor Eric Adams. “The opinion claims to be based on [the nation’s] historical past, but does not account for the reality of today. It ignores the present, and it endangers our future.”
Several decisions handed down have intensified concerns that conservative justices no longer respect the separation of church and state. They voted in favor of an ex-public high school football coach who was suspended for praying with athletes on the field after games.
The justices also rejected a Maine law that prohibited religious schools from getting tuition aid from public funds, according to the Hill. “This court continues to dismantle the wall of separation between church and state that the framers fought to build,” liberal justice Sonia Sotomayor said in her dissent.
The court’s recent decisions involving tribal lands and environmental protections have also sparked criticism. The justices decided Wednesday that state prosecutors may pursue criminal cases for crimes perpetrated by non-Native persons against Native persons on tribal land.
“With today’s decision, the US supreme court ruled against legal precedent and the basic principles of congressional authority and Indian law,” commented Chuck Hoskin Jr, Cherokee nation principal chief.
On Thursday, the court supported litigation brought by West Virginia that insisted the US Environmental Protection Agency (EPA) be restricted in its regulation of planet-heating gasses from the energy industry.
“The decision to side with polluters over the public will cost American lives and cause an enormous amount of preventable suffering, with the biggest burden falling on low-income communities and communities of color,” said Michael Bloomberg, a UN special envoy and former New York City mayor.
Legal experts said that steps can be taken to prevent the Supreme Court from exerting limitless power. Several have suggested that lawmakers could enact term limits, for example.
“We don’t have to just accede to this notion that the supreme court has the last word on every consequential issue in the country,” said Gabe Roth, executive director of the judicial watchdog non-profit Fix the Court. “Congress can step in and pass laws that protect certain rights.
“There are people who are really focusing on what folks might want to do in November, but there are plenty of legislative days between now and then to get some bills passed,” Roth continued. “We’re in new territory here, and elected officials need to be up to the task of reining in a runaway court’s power.”
The constitution grants lifetime tenure to supreme court justices. Roth believes, however, that there are legislative ways that could move them to senior status – meaning they would keep their lifetime appointment as required, but not wield decades-long decision making power.
“Doing so would send a signal to the justices that they don’t have the final say–ensuring that these ‘philosopher kings’ aren’t ruling over us for 30 or 40 years is an important step in that direction.”
Gostin suggested term limits on the court, and/or an “independent rigorous evaluation of potential justices by an independent panel”. That panel, in turn, would provide a list of judicial candidates to the president.
“Those two are very much established in other countries around the world. That would make a lot of sense,” Gostin said. “The problem is: There’s no political appetite for it, and you need to get Congress to buy into it and the Republicans surely do not want that, because they see the supreme court appointees as a war.”
“They are winning the war, so why would they change the terms of engagement?”
Gostin also invoked a martial analogy when discussing recent court decisions.
“It seems like the supreme court is at war with the American people,” Gostin said. “It’s certainly serving the desires and passions of one third of the country, but it’s completely ignoring the consequences for the vast majority of the country.”
