Saturday, I attended our local Women’s March, this time to save abortion rights. It is no coincidence that it came two days before the opening of the Supreme Court’s newest term which is likely to finalize the end of Roe v. Wade as we know it. The Court’s use of the shadow docket to validate the Texas bounty law that has clearly ended the ability to get any abortions in that state was just the prelim to the Dobbs v. Jackson Women’s Health Organization case that seeks to ban abortions after 15 weeks, nearly two months earlier than current law allows and which is well before fetal viability.
The end of Roe v. Wade and the resulting cumbersome restrictions on abortion potentially so severe as to make it impossible to actually get one are just a harbinger of things to come from this radical Supreme Court. While it may not be the focus right now, the Roe decision will have serious implications for gay and transgender rights, marriage equality, worker’s rights, voting rights, and even democracy itself. If you want to see just how extreme the conservatives on this Court are, you should read Ian Millhiser’s piece on “The Nihilism of Neil Gorsuch”, one of the supposedly “swing” justices on this 6–3 Court. Millhiser writes, “He is broadly anti-government, skeptical of democracy and the institutions that make it possible, and eager to centralize power within the judiciary. That worldview and his certitude of its rightness are married with a willingness, even eagerness, to impose draconian consequences on the nation if he catches someone violating his often-quite-unusual ideas about what the rules should be…his overarching view that power should be concentrated within the judicial branch has broad support among his Republican-appointed colleagues”.
As Millhiser notes, Gorsuch seems to believe the disastrous real-world effects of his decisions are irrelevant. Last year, he actually voted, thankfully in the minority, to undo 13 years of work and hundreds of billions of dollars in transactions in a case involving whether the President had the power to fire the head of the Federal Housing Finance Agency, a decision that would have probably thrown the world economy back into recession. Gorsuch was the only Justice to join Alito in voting to rule the entire ACA unconstitutional simply because Congress decided to reduce the penalty for not getting health insurance to zero. That view ignored the fact that Congress had specifically decided not to repeal the ACA as well as the fact that it would have immediately voided the health insurance of around 30 million Americans. Gorsuch also joined Thomas and Alito in being willing to throw out the votes of 20,000 South Carolinians who had early-voted legally under the rules in place at the time, before the Court intervened to require a witness to those mail-in ballots. (The view of these three Justices is probably not surprising when you think about the party that was pushing their voters the hardest to vote early last year). And never forget that Gorsuch as an appellate judge was again the sole vote to uphold a company’s right to fire one of its truckers because he abandoned his broken-down load for 30 minutes because he was literally freezing to death. His logic was that the law allowed a trucker to refuse to operate an unsafe vehicle, but, by unhitching the broken trailer from the cab, the trucker was actually operating a safe vehicle and should fired for refusing company orders. Gorsuch’s logic would have literally meant that the trucker’s only legal option was to freeze to death.
Chief Justice Roberts was a master at advancing conservative causes on the Court while maintaining the illusion of impartiality with the American public. With Roberts no longer even a swing vote, that appears to be changing. The conservative’s abuse of the shadow docket to not only intervene in ongoing lower court cases but also make merit decisions in emergency orders showed an extraordinary amount of hubris and changed the perception of the Court. A recent poll showed the Court with just a 37% approval rating, the lowest ever recorded in the recent history of the question, and the conservatives on the Court are clearly on the defensive. Whenever you have to say, as Justice Barrett did at what was supposedly a victory lap at the McConnell Center, “My goal today is to convince you that this Court is not comprised of a bunch of partisan hacks”, that is not a good sign. Justice Alito showed a similar defensiveness when he responded to those criticizing the Court’s expansive use of the “shadow docket”, describing those critiques as trying to “portray the [C]ourt as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways. This portrayal feeds unprecedented efforts to intimidate the [C]ourt and to damage it as an independent institution”.
The question going forward is whether this defensiveness will somewhat restrain the conservative justices in some of the upcoming cases or whether it is merely gaslighting and, like Gorsuch, their often decades-long desire to overturn some of the core precedents of American civil and political society will allow them to ignore the severe real-world consequences of their actions. If the conservatives’ hubris of the recent past is any indication, it is hard to be hopeful. This will be an eventful, interesting, and probably dispiriting term.
Originally published at https://thesoundings.com on October 5, 2021.