The force of the Supreme Court's right turn has shaken the country - CNNPolitics
S E E D E D C O N T E N T
By Joan Biskupic, CNN legal analyst & Supreme Court biographer Updated 9:33 AM EDT, Fri July 01, 2022
(CNN) The Supreme Court reached into every corner of American life, reordering intimate family choices, breaching the separation of church and state, and diminishing the steps government can take to prevent gun violence or protect the environment.
The upheaval of the past several weeks, especially as the court outright ended a half-century of women's privacy rights, is unmatched in modern times. The speed and sweep by which the right-wing majority acted reflects, as one liberal dissenter wrote, a "restless and newly constituted Court."
And it is not finished.
The conservative supermajority -- anchored by three relatively young appointees of former President Donald Trump -- is positioned to continue its impact with disputes next session over the Voting Rights Act, affirmative action and religious objections to LGBTQ protections.
Yet it will be the epic 2021-22 session that stands out over time. The case of Dobbs v. Jackson Women's Health Organization, reversing Roe v. Wade, will likely be remembered as one of the most far-reaching rulings in Supreme Court history. The 5-4 decision marked the first-ever complete reversal of a constitutional right.
The justices also enlarged the Second Amendment, favoring gun owners, and redefined the balance between the First Amendment's prohibition against government "establishment of religion" and its "free exercise." That will allow more prayer in public settings and require more government money for religious education.
The new landscape was made possible because of the three Trump appointees -- Neil Gorsuch, age 54, Brett Kavanaugh, 57, and Amy Coney Barrett, 50. They separated themselves from prior Republican-named justices who had adhered to precedent and "the promise of constancy," as Justices Sandra Day O'Connor, Anthony Kennedy and David Souter called it in the 1992 case of Planned Parenthood v. Casey, which reaffirmed Roe.
The drive to the right was not wholly unexpected, even though its force has shaken the country.
When liberal Justice Ruth Bader Ginsburg died in September 2020 and Trump quickly replaced her with Barrett, the new six-justice right-wing bloc appeared positioned to roll back decades of individual rights and government power.
It was just a question of how quickly it would happen and whether the conservative but incrementalist Chief Justice John Roberts would be able to slow the juggernaut.
Twenty months later, it is plain the majority was in a rush. The right wing did not need Roberts' vote for a majority, and on many conservative agenda items, such as religion, race and regulatory power, he was fully with them. (Roberts wrote alone in Dobbs -- with a middle ground that dissatisfied both sides).
Aggressive conservatives
In the most momentous cases, including abortion rights, the justices aggressively decided more than the case demanded. When the justices agreed to take up a Mississippi law that banned abortions at 15 weeks of pregnancy, it said it would decide only whether that ban was unconstitutional based on Roe and Casey protections for a woman's abortion choice before fetal viability, at about 23 weeks.
Kavanaugh, who succeeded Kennedy in 2018, signed on to the Dobbs opinion denigrating Casey's reasoning and likening Roe to the 1896 Plessy v. Ferguson, which upheld racial segregation, even as he professed "deep and unyielding respect" for O'Connor, Kennedy and Souter.
How the Supreme Court is dismantling the separation of church and state
The Dobbs opinion suggested a new era of abortion debate beyond the domain of the justices.
"After today's decision, the nine Members of this Court will no longer decide the basic legality of pre-viability abortion for all 330 million Americans," Justice Brett Kavanaugh wrote in a concurring statement as he joined the majority opinion by Justice Samuel Alito, which was also signed by the other Trump appointees and Justice Clarence Thomas. "That issue will be resolved by the people and their representatives in the democratic process in the States or Congress."
It is likely, however, with states responding to the Dobbs decision with new anti-abortion laws, that related controversies will soon return to the high court.
The justices reached out in the Environmental Protection Agency case, too, as the Obama-era Clean Power Plan had been repealed and no Biden administration plan was yet in place. Thursday's decision will limit the Biden effort to control emissions in coal and other industries to counteract climate change.
More broadly, the ruling will affect Washington's ability to protect the country's public health and safety.
Writing for the majority, Roberts allowed that limiting carbon dioxide emissions and forcing a transition from the use of coal to generate electricity may be a "sensible" way to address the climate change crisis. "But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in" prior statute, he said.
Contending that the court itself was asserting inordinate control on climate policy, dissenting Justice Elena Kagan said, "I cannot think of many things more frightening."
Clarence Thomas' Second Amendment ruling shows power of conservative supermajority
Earlier this year, the six-justice conservative wing rejected the Biden administration's effort to stop the spread of Covid-19 with a vaccination rule. The Occupational Safety and Health Administration had directed employers with 100 or more workers to require vaccines or weekly Covid-19 testing.
The court ruled in January that OSHA had exceeded its statutory role in workplace safety. "Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most," the justices said in their unsigned opinion.
The same six justices favored conservative Christians in Maine and ruled that if a state subsidizes private education, it must include religious institutions. They also sided with a Washington state high school football coach who prayed at midfield after games, and in doing so jettisoned a legal approach that warned against government "endorsement" of religion.
As the majority emphasized respect for religious expression in the case of Kennedy v. Bremerton School, dissenters said the decision disserved schools and students, along with the country's "longstanding commitment to the separation of church and state."
Liberal wing can do little but dissent
New Justice Ketanji Brown Jackson, the nation's first African American woman on the bench in the court's 233-year history, succeeded retiring Stephen Breyer on Thursday and will be in place for the new session.
At age 51, compared with the 83-year-old Breyer, Jackson will bring a new shot of youth along with her historic status. The 6-3 conservative-liberal balance, however, will not change.
The wing that Jackson joins is likely to remain on the losing side, particularly in the highly charged voting-rights and culture-war controversies on the agenda for the 2022-23 session, which begins in October.
Exclusive: Supreme Court leak investigation heats up as clerks are asked for phone records in unprecedented move
When the three liberals, including Breyer, dissented in the Dobbs abortion case, they recalled a lament of Breyer's from 2007 as he dissented from a decision striking down school reintegration plans: "It is not often in the law that so few have so quickly changed so much."
"So few" are now -- as a supermajority -- more aptly "so many."
The swift pace of such great change has been staggering. Dissenters tried, in vain, to hold on to precedent that went back half a century in the abortion rights and religious liberties controversies.
In the EPA case, they clung to a recent precedent, a 2007 case in which the high court recognized the EPA's authority to regulate carbon dioxide and to address environmental crises.
"But that Court," wrote Kagan, "was not this Court."
Correction: An earlier version of this story misattributed a quote in the Dobbs concurring opinion. It was written by Justice Brett Kavanaugh.
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The Supremd Court is radical, a danger to democracy!
Now that is 'worthy' of going viral and being seen widespread across this country.
This is still so FUNNY!
ABC had to find experts to tell them this:
Next step, reinstate The Inquisition.
Fun times.
Probably. All of this is the work of the same organization - the Roman Catholic Church.
No, the RCC plus evangelical fundamentalists!
The evangelical fundamentalists play their role, but when it comes to political and monetary power (and savvy) the RCC are in control. Who is on the US Supreme Court? The RCC or the evangelical fundamentalists?
The RCC's wealth and industry in the US has grown dramatically since Bush used executive privilege to enact legislation to almost do away with the separation of church and state - called the "Faith Based Initiative".
The RCC gains enormous wealth by operating charter schools, colleges, hospitals, welfare offices, adoptive services and who know what else in the US funded at taxpayer expense. I believe I recently read that the RCC will now be receiving tax funding for their private religious primary and secondary schools.
The only organization powerful and wealthy enough to buy the US government is the RCC. And why not? The RCC had their own private army at one point. Then found out it was cheaper and more effective to just control the heads of countries in Europe and employ their armies to "spread the good word". The Vatican waged war and even put out a hit on Elizabeth I after they lost control of the UK after the death of Mary Tudor.
Taking away women's rights in the US is unacceptable. What is even more unacceptable is the possibility that we allow the Vatican to have enough power in the US to control our military might.
The RCC has the largest membership of one Christian religious sect in the world. The other sects are much divided, and the membership numbers are miniscule in comparison to the RCC.
The majority of immigrants crossing our southern border are Catholic. The RCC is trying to bolster their membership and therefore their voting strength via immigration because their membership numbers are dwindling since even Catholics have been using birth control to limit their family size to one that they can support.
At some point, I might google birth control availability in Mexico, the Philippines, and other countries with a large Catholic population to see how their governments are legislating women's health care.
Bill Maher has some insight into who is really responsible for overturning Roe v Wade. Or do you believe he is wrong?
He is wrong about Repubs putting 6 Catholics on the court. I also agree that he’s giving the Repubs to much credit. It was a fluke that Trump was able to put 3 justices on the bench. His two guests made much more sense to me.
Thanks for the link, interesting.
Yes and no. The real power is from the bench, and most of our presidents have known that. It has been a goal for quite some time. Even Regan said it. Ginsberg should have left the bench but she was selfish about it. This all lead to the perfect storm.
Ginsberg also knew that Roe vs Wade was bad law.
Maher was saying that the Repubs are successful because they play the long game. I think that they’ve abandoned the long game years ago and play only to win the next election. I think that they are weakening their party and have abandoned any real political philosophy.
The question of Ginsberg's opinion is irrelevant. She was pro-choice but being that she was, you would have thought she would have cared more and retired before this happened.
I think they were playing the long game, but I agree with you on the rest. I feel the same about the Dems, too.
As this devolves into the "Jews control the media" level of conspiracy mongering, did it ever occur to you that if sort of secret Catholic conspiracy existed to impose Catholic rules on the country, the Catholics on the Court would have actually imposed a rule or law consistent with Catholic doctrine? Making it legal to kill a human until its completely out of the birth canal isn't in line with Catholic teaching, is it?
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They have already done that in the People's Republic of China and in Russia.
Really? And you have personal knowledge? so "Vas you dere Charley?" (Baron Munchausen)
A more so than you have on what is coming next. I heard of the Russian gulags and how they treat their prisoners. I have heard of China's "reeducation camps and how they treat the Uighurs.
And yet the USA imprisons a much higher percentage of its citizens than nearly any nations in our inhumane prisons?
LOL. You have HEARD of....." Oh, yes, hearsay is acceptable on social news sites. I may not know enough about Russian gulags, but I think I know more about China than someone who only relies on hearsay. I learned in Law School that there are always two sides to a story, even though they may not be equal. Sure, I've actually lived in and seen a lot of the other side of the story when it comes to China - a person can learn quite a bit living in a country for 16 years, but I don't intend to either defend or criticize, and I will admit that I don't know anything for sure because I've never been to Xinjiang, so I'll not take sides on that issue and I don't necessarily agree with anyone who does, and am only critical of those who DO take sides who DON'T actually know. However, I do note that the head of the UN Human Rights recently did a tour and she was not as critical as you probably are by even mentioning it.
The USA boasts the highest rate of incarceration in the world. So I think you and I would agree that those who are critical of other nations are somewhat hypocritical.
you don’t know what hearsay is if you think the evidence of Chinese concentration camps is “hearsay”
Good for you not taking sides on throwing a million people in concentration camps because of their religion. It’s really all people need to know when you go on your Anti American rants.
While I appreciate you openly joining the shilling for incarcerating people because of their religion (very on brand) you do understand the difference between imprisoning people because of their religion and imprisoning them after they were convicted in a trial by their peers, right?
And each and everyone of them have been found guilty of their crimes by a jury of their peers and have ample opportunities to appeal their convictions multiple times.
Compared to most of the world our prisons are palaces. Would you want to be incarcerated in a prison in North Korea or in Alabama. A prison in south America or one in California.
Your hysterical comments about people being incarcerated "because of their religion" are ignorant and just plain wrong. The Uyghurs are Muslims, and there are more than 30 million Muslims in China who live normal lives same as everyone else, pray in their mosques, celebrate their festivals and holidays, send their children to the same schools as everyone else (I taught Muslim students in the private high school where I taught here) and freely carry on their businesses (I particulaly prefer their restaurants because I like lamb more than pork). And that is inclusive of the many Uyghurs in Xinjiang who live normal lives. The Chinese government explains that it is those who were religious extremists, separatists and actual terrorists who have been sent to reeducation camps or imprisoned.
And of course the Chinese government would never lie or attempt to mislead the rest of the world. They are as honest as the day is long just like the Russians are or the Soviets we're or the North Koreans or the Iranians.
Maybe they do and maybe they don't, but then I doubt that there is a nation in the world where the lawmakers DON'T EVER LIE, and that includes the lawmakers in your "exceptional" nation. Those lawmakers who criticize other nations for their own personal or party's or nation's benefit are not beyond criticism as well.
When so much effort and methods are used to contain China, so much demonization and interference with China's domestic affairs, a person with a brain in their head just might start to doubt some of the damning stories being told.
So China doesn't interfere in US affairs; or the affairs of NATO or NATO allies right?
Welcome to being a world military and economic super power. Life if rough at the top.
Oh yeah, sure China forms a QUAD organization to contain the USA, and asks other nations surrounding the USA to pressure America, and gets together with other nations to send nuclear subs to circle the USA, and sails warships into the Gulf of Mexico, and passes government resolutions damning American legislation necessary for American domestic affairs. Gee, I guess I really AM missing a lot these days.
Before one and all get too carried away ...
Nobody should remain a Catholic after learning that their church tortured people to death in the name of god.
That's not to say there aren't protestant churches guilty of the same thing. If you want to be a Christian you need to find a church that is true to Christ's teachings. Institutional torture and execution are disqualifying.
"Shaken the country"
You gotta love CNN and their "sky is falling" shtick hoping to get a few people to watch and read their crap. Somehow I don't feel shaken. I guess ct isn't part of the country anymore
And that is exactly what they get, very few people watching them.
By "very few" do you mean the billions of people around the world who have seen parts of Cassidy Hutchison's testimony indicting Donald Trump?
You mean her hearsay testony? Even she admitted she wasn't there but heard others say it. And I really don't think it was billions that heard her. If you have definitive proof that there were I would like to see it.
She did not admit it, she stated this upfront and quite clearly. Did you see the balance of her testimony or is this part the only part that registered?
CNN hasn't had .ooo1 percent of that many people listen to it in the entire time it has been in existence.
Hutchinson's testimony was seen on all networks worldwide!
CNN is not all networks worldwide. It is just one cable network and has fewer viewers than the farm report.
You mean her carefully coached testimony with no cross examination?
The testimony that has secret service agents and Trump administration people lining up to testify to refute her.
Like everything else about the Jan 6th committee- it is completely full of partisan shit!
I will say this, JBB, the abrupt overturning of Roe v. Wade gives credibility to those arguing about the dangers of a politically/ideologically unbalanced SCotUS. It should be taken as a given that justices are indeed human beings who will interpret the CotUS through the lens of their ideology and beliefs.
Abrupt overturning? We have been trying to overturn it for over fifty years. Much too long on my opinion and I am sure the 63 million aborted babies would agree.
Yeah, abrupt. The SCotUS had accepted R v W as a solid precedent and basically left it alone until now. The justices, during confirmation, all noted that R v W is an established precedent and none indicated that they would vote to overturn it. And of course none stated they would overturn it because that alone would have cost them their seat.
You did not notice that this decision was a surprise?
Lol. Casey almost completely rewrote Roe in 1993, and its been litigated constantly since.
And of course none stated they would overturn it because that alone would have cost them their seat
It sure would. Imagine a nominee promising how they would rule on a matter certain to come before the Court.
You must be laughing at your own rhetoric: "almost completely rewrote" is indeed laughable given R v. W was substantially upheld by the SCotUS in '92 in that the R v. W right of a woman to choose to have an abortion remained intact prior to viability.
Casey attempted to overturn R v W and instead the SCotUS affirmed R v W.
So, back to my statement: the SCotUS had accepted R v W as a solid precedent and basically left it alone until now.
Of course, if you've actually read either case you'd know I'm correct. The Court in Casey completely ditched the Roe trimester framework and created an entirely new, "undue burden" standard with a new standard of viability. That's the opposite of leaving it alone.
You know what happens when a Court leaves a precedent alone? They don't ditch it's reasoning and create a new standard.
Claiming Roe, as a precedent, "was basically left alone" is ignorant and can't be honestly defended. Here's the ACLU discussing Carhart II from 2007: "In a 5-4 decision, the Court upheld the federal ban, undermining a core principle of Roe v. Wade: that women's health must remain paramount.
I guess the ACLU's lawyers didn't get the memo that Roe "was basically left alone." Even after Casey, one of it's "core principles" was being undermined.
he SCotUS had accepted R v W as a solid precedent and basically left it alone until now.
You can make ignorant declarations all you like. No informed person believes that.
After Casey, as I stated:
Your rebuttal is to claim that what I stated above means that Casey overturned R v W. Yet, as I noted above, woman were still, across the nation, able to choose an abortion prior to viability (that basically means the first two trimesters).
Hyperbole is not an argument. R v W was the established precedent since 1973 and until 2022 it remained as such. R v W protected a woman's right to an abortion nationwide. Until this year that precedent remained. The essential right provided by R v W remained regardless of adjustments.
Are you now going to try to argue that R v W has been overturned before 2022?
No, not at all. Your original claim was that " R v W as a solid precedent and basically left it alone until now". Since you can't backup that rhetoric you've changed your argument to the "well, the right to an abortion has existed since Roe" Those are not the same arguments. Maybe you don't understand the difference between the two but they are not the same thing, at all.
Hyperbole is not an argument.
I agree. That's why I provided factual arguments that you can't rebut. Your original argument was pure hyperbole, and now you are backtracking to create a new defensible argument, without admitting what you are doing.
re you now going to try to argue that R v W has been overturned before 2022?
Why would I? That's not what you originally claimed and there's no need to chase your moving goalposts.
Yeah Sean it has basically been left alone. The word basically is operative; do you NOT see that word in what I wrote — you quoted me ... did you read what you quoted?? R v W established the national right of women to choose to abort. That national right has remained until now. The R v W precedent had been in place since 1973.
he word basically is operative;
It is. Which is why I fear you don't understand what that word means or are being dishonest. "Basically left alone" implies that its premise had not been rewritten, its core principle had not been undermined (in the words of the ACLU) and that it hadn't been continuously relitigated since it was first handed down. All of those things, of course, have happened.
"Basically left alone" doesn't not mean, which you now claim it does, completely reengineered but not formally overturned.
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Roe v Wade established the national right for a woman to have an abortion. That is the basic right that it established. That right continued until 2022.
There was no 'complete reengineering' of this by Casey or any other action. The national right of an abortion up to viability has been in existence since 1973.
Not until 2022 have we seen "Roe v. Wade Overturned" as an item of news. Your 'complete reengineering' is hyperbole.
was no 'complete reengineering' of this by Casey or any other actio
Lol. It's discarded Roe's reasoning and legal standard and created a new one. That's indisputable no matter how stridently you object.
Not until 2022 have we seen "Roe v. Wade Overturned" as an item of news.
So what? That's not what you claimed originally.
I realize you need to have the last word, so feel free to repeat yourself again and trust that I've already rebutted it.
[Deleted]
The national right of a woman to have an abortion up to viability remained until 2022. That is the core of Roe v. Wade and that has not been 'reengineered'.
That is indeed what I claimed. Roe v Wade has basically been left alone. Evidenced by the fact that the national right of a woman to have an abortion up to viability remained until 2022. Third trimester abortions are not the core of Roe v Wade since abortions almost always are done in the first two trimesters. Your argument is chickenshit.
Now, 2022, Roe v Wade has been 'reengineered' in that the national right has been abolished and delegated to the states to decide for themselves. Prior to that the fundamental right of Roe v. Wade (national right to abortion prior to viability) had been in full effect.
Roe v Wade the Supreme Court wrote the law. Courts are not supposed to do that, period.
That is a law, period. The Court had no right to make it.
Planned Parenthood v Casey
Casey did away with Roe and left us with this legal word salad garbage. What the hell is a "substantial obstacle" or "undue burden"? It depends on who you ask; and it differs by state. Obviously Pennsylvania's Abortion Control Act (outside of a wife having to notify her husband) was found to be "Constitutional". You will also notice the 5-4 ruling- as the Court was becoming more conservative.
So why didn't the Democrats when they had complete control of the House/Senate/and White House codify Roe into law? Their last chance was Obama first term. They knew the Court was turning more Conservative. Instead they continued to use it as a campaign ploy to get elected. Their self fulfilling prophecy finally came true. Roe is gone and now it is up to states again.
Then there is the abortion bill the Democrats just tried to ram through the Senate (already passed in the House along party lines).
There was no way Republicans were going to vote for that law. Schumer knew that before he brought the bill to the floor. In fact two Democrats in the Senate voted along with Republicans to scrap it.
The Bill isn't just Roe; it is Roe on leftist steroids. Rather than try and find a compromise (beyond a dirty word these days); they shot for the leftist moon- and then screamed when it didn't pass.
Republicans are no better with their ban all abortion BS if they take power(except in the case of a threat to the mother; or child born with life altering/hindering birth defect).
Both sides need to tell their radicals to shut up and sit down; while the adults (if there are any) work on a compromise bill. There are more than enough lawyers on both sides to cover most of the bases. If not I am sure the courts will have no problem pointing out the weaknesses (during litigation) so they can be addressed.
I prefer the Sweden abortion law. I am sure many on the left will find it to be too restrictive. But it is a starting point; and many Democrats point to the European model of health care.
My goal is to get the US much further down the list of abortions performed every year. "Remember safe, legal, and rare"? That seems like a very long time ago. Abortion should always be a last resort; not a first line of defense; when it comes to birth control.
I heard an interesting idea the other day on the radio on a SCotUS change I thought was interesting. The speaker noted that many Progressives were calling to add 2 or 4 new judges, but he thought 20 new judges would de-politicize the institution and dilute the power of any single judge seat. I think he mentioned the 1st Circuit Court of Appeals currently has 29 judges. His point was any 15-14 decision would be way more moderate than a 5-4 vote currently.
I think the idea is brilliant, but there would be no way in hell the current Senate would ever be able to make any kind of deal to get something this epic passed and confirmed.
Regardless of solution, it is clear that the SCOTUS is more influenced by ideology / beliefs than the founders anticipated. Adding more justices would itself be based on politics so that would be a mess. Plus, as we add justices we encourage group think and could result in a large court that is internally political like the House and the Senate. Thus supreme justice becomes polarized and irrational.
Not sure there is a solution other than somehow placing only the most objective people possible on the court … somehow.
So you would be Ok if a conservative president could nominate the 20 new judges to make up the new court.
Fair points.
Your question has little to no bearing on my post and pretty much misses the entire point of the incredibly brief conversation. It's a moot point anyway.