Although Democrats have won the popular vote in seven of the United States’ last eight presidential elections, the U.S. Supreme Court certainly doesn’t reflect that. Six of the High Court’s nine justices were appointed by Republican presidents, and three of those six were appointed by one-term former President Donald Trump — who lost the popular vote in 2016 and lost both the popular vote and the electoral vote in 2020. Moreover, the Court’s socially conservative supermajority is way to the right of such GOP-appointed justices of the past as Sandra Day O’Connor and libertarian Anthony Kennedy.
It was this socially conservative majority that, on June 24, 2022, overturned Roe v. Wade after 49 years with its ruling in Dobbs v. Jackson Women’s Health Organization. And journalist Cristian Farias, in an article published by Vanity Fair on August 25, warns that the worst may be yet to come from the High Court’s radical-right supermajority.
“Power,” Farias writes, is the “only sensible explanation for the “present course” of a Supreme Court that overturned a decision that was not only handed down in 1973, but also, was upheld 19 years later with the Planned Parenthood v. Casey ruling of 1992.
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“The seismic end of Roe v. Wade and Planned Parenthood v. Casey, two pillars of a much larger structure of unenumerated constitutional rights the High Court has erected over almost a century, was neither legally necessary nor a product of profound changes in American society,” Farias explains. “Instead, five justices tore these precedents off the law books, ushering in a new era of abortion criminalization and second-class citizenship for half the nation, simply because they could — and had the numbers to do so…. As radical and destabilizing as the fall of Roe is for our most intimate personal decisions, beyond just abortion rights, its ripples will extend to other areas where the conservative justices are already smelling blood.”
Farias continues, “Not satisfied with the erasure of just one constitutional right, (Justice) Clarence Thomas, writing separately in Dobbs, indicated that contraception and same-sex marriage could be next. That future begins now. These actions and other signals make abundantly clear what (Justice Thurgood) Marshall foresaw: The Supreme Court is on a collision course with democracy itself. Dobbs merely sets the stage.”
Two of the justices who voted to uphold Roe in Planned Parenthood v. Casey 30 years ago were Ronald Reagan appointees: Kennedy and O’Connor. And Justice David Souter, appointed by President George H.W. Bush, upheld Roe as well in that 1992 ruling. But Farias emphasizes that the three justices appointed by Trump are “more extreme” and are “lacking the moderation of Republican appointees of the past, including those who made Roe and Casey possible.”
“To the Trump justices, plus Thomas and (Justice Samuel) Alito, this shock to the nation could not come soon enough,” Farias laments. “Nominated by a president who lost the popular vote and narrowly confirmed by a Senate plagued by minority rule, these justices — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — were all groomed for this moment. All of them were grown in the test tube of the Federalist Society, the conservative legal brain trust that, for decades, has been a judicial pipeline for Republican administrations and state governments, which since the time of Ronald Reagan, have made the fall of Roe a white whale of their politics.”
Farias also slams the High Court for its recent ruling in West Virginia v. EPA, which, he points out, “sharply curbed the government’s power to regulate carbon emissions from power plants.” And one of the pending cases he is worried about is Moore v. Harper, which addresses a far-right legal doctrine known as the “independent state legislature doctrine” — an idea that, in its most extreme form, argues that state legislatures, not governors, judges or state supreme courts, should have sole authority over how a state governs its elections.
In the past, the U.S. Supreme Court dismissed the independent state legislature doctrine as nonsense. But Farias fears that the High Court of 2022 won’t see it that way.
“When the justices return to the bench from their summer recess in October, (Chief Justice John) Roberts’ first order of business will be to give a warm welcome to (Justice Stephen) Breyer’s replacement, Ketanji Brown Jackson, and then get right down to the real business: a docket that already has advocates of voting rights, racial justice, and democracy on high alert. In the justices’ sights, among other targets, are the future of affirmative action in higher education, the power of Black voters under what’s left of the Voting Rights Act, and an esoteric legal question that could well give cover to Trump-friendly Republican-led state legislatures wishing to contest the results of the next presidential election — or, at the very least, wreak electoral mischief at the expense of voters.”
Farias continues, “‘Women are not without electoral or political power,’ wrote, without irony, the five justices who ended their right to be full and equal citizens before the law in Dobbs. In asserting power rather than reason over what remains of our less than perfect union, the Supreme Court may well unravel democracy with it, taking us down a path from which there is no return.”
