Just as bad as the last term?
For the past week, headline news has focused almost exclusively on the scenes of desperation and destruction left in the wake of Hurricane Ian. So most of us missed taking note of last Friday’s investiture of Justice Ketanji Brown Jackson, the first Black woman on the Supreme Court. She was sworn in last June so this was a formality, but it still carried the weight of history and the court was filled with political and judicial luminaries, including President Biden and Vice President Harris. It was by all accounts a moving ceremony. But considering all the turbulence on the Supreme Court right now, I have to wonder if Jackson might be having second thoughts.
Today is the first Monday in October, the first day of the new Supreme Court term — and the court is in crisis. According to the Gallup poll, its public approval ratings have never been lower, with 58% of Americans disapproving of how this court is handling its job. A good part of that can be attributed to the Dobbs decision overturning the right to abortion, which had been effectively enshrined in the Constitution for 50 years. That it came fast on the heels of two underhanded end-runs by the Republican-controlled Senate — blocking the nomination of Merrick Garland in 2016, and then jamming through Amy Coney Barrett in 2020 — made it all the more rank. The court’s right-wing majority couldn’t even wait another year or two, just for appearance’s sake.
Dobbs wasn’t the only case last term that exposed what partisan hacks the court majority have become. They also ruled that despite centuries of jurisprudence allowing the regulations of firearms, a New York state law requiring concealed carry licenses, on the books for more than 120 years, was somehow a violation of the Second and 14th amendments. In his majority opinion, Justice Clarence Thomas made it very clear that he didn’t hold with his former colleague Antonin Scalia’s view that the Second
Amendment is not absolute when it comes to private ownership of guns.
And in case anyone thought the court might think twice about gutting the EPA in light of the planetary climate upheaval we now see unfolding every day, they did not. In another 6-3 opinion, justices denied the EPA the right to demand emissions caps as part of the Clean Power Plan, siding once again with red-state climate-change deniers and Big Energy interests.
All those opinions came virtually on top of each other at the end of the court’s spring term, and its approval rating sank precipitously right after that. But the more recent nosedive in public opinion is likely also connected to the fact that one prominent justice is married to someone who was heavily involved in the post-election Big Lie campaign, and perhaps with illegal attempts to overturn the election. Ginni Thomas, the wife of Justice Clarence Thomas, was interviewed last week by the House Jan. 6 committee, and reportedly said that she still believes the 2020 election was stolen. That all might be considered a case of very poor judgment by the spouse of a Supreme Court justice, if it weren’t for the fact that Thomas has refused to recuse himself from any cases pertaining to Donald Trump — and has consistently supported Trump in pretty much every instance. Furthermore, the public has gradually become aware that Thomas and the other justices aren’t required to adhere to any clear ethics rules or standards — because there aren’t any.
Chief Justice John Roberts and Justice Elena Kagan — the latter is among the three remaining “liberals” — have been obliquely arguing with each other about the court’s loss of prestige and legitimacy in various speeches they’ve given over the last few weeks. Roberts, a smart guy deliberately playing dumb, has wondered aloud why people might thing the court has become purely political just because they disagree with the outcome of certain cases. Kagan, meanwhile, has patiently pointed out that when the court starts overturning precedents one after the other after a dramatic shift in personnel, it might make people just a little suspicious that politics is at work. Here’s how Slate justice reporter and analyst Dahlia Lithwick put it:
[I]t is not that the public didn’t like the final score at the end of the term when the lights went out in June. The problem wasn’t just the losses; the problem was that [Roberts’] team moved the game to another field, then stole the ball and replaced it with a time bomb, then changed the rules, then lied about it, and then set the entire field ablaze. Now he wants everyone to shake hands and go home.
Unfortunately, they aren’t finished. Indeed, the right-wing justices and their allies are just getting started. If this term goes like the last one, get ready for the court to lose another 20 points in approval. It will hear cases on religion, free speech, LGBTQ rights, affirmative action and voting. It’s not hard to imagine where the right-wing majority that signed on to the Dobbs decision will go now that they’ve decided to let it all hang out.
The legal precedents on affirmative action were thought to be so firmly established, according to New York Times, that the late Justice Ruth Bader Ginsburg assumed the issue had been permanently settled. Apparently not. The court plans to hear two cases that could once again upend precedents in place for half a century. Then there’s Merrill v. Milligan, which is poised to destroy what’s left of the Voting Rights Act, and Sackett v. EPA, which is likely to further degrade the federal government’s ability to enforce clean water standards, meaning that what happened to the water systems of Flint, Michigan, and Jackson, Mississippi, could happen in your town as well. In the latest bogus “religious freedom” case, 303 Creative v. Elenis, the court may enshrine the right to discriminate against LGBTQ people on religious grounds.
Then we get to perhaps the most chilling case of all, Moore v. Harper, which aims to establish the “independent state legislature” theory as the law of the land, essentially giving any Republican legislative majority in a swing state the power to do whatever it chooses when it comes to elections — with no checks on its power, including from state courts, the governor or any other election officials. Let’s put it this way: If this had been in effect in states like Arizona, Michigan and Pennsylvania in 2020, it’s entirely possible that right-wing state legislators could have done exactly what folks like Ginni Thomas wanted them to do — refuse to count certain votes, or even appoint their own slates of presidential electors in defiance of the voters. And you don’t even want to think about what how creative they could get with gerrymandering districts so Republicans never lose.
So get ready. The Supremes are on a roll and it doesn’t look like they have any plans to “moderate” in light of the fact that the public now perceives them as nothing more than an enforcement arm of the Republican Party. Public opinion, in this case, isn’t wrong. Old-time conservative movement ideology may be widely unpopular these days, is firmly entrenched in the high court and they are making all their dreams come true.
Who’s going to stop them?