Ruling By Grievance

This Supreme Court largely abandoned legal reasoning and precedent to push its increasingly radical agenda that endangers a modern America and a healthy future

Abortion rights demonstrators outside the US Supreme Court on June 24, 2022. (Photo by Yasin Ozturk/Anadolu Agency via Getty Images)

For four years, we experienced the consequences of a White House occupant who ruled by grievance, culminating in a deadly Capitol attack by angry, grievance-fueled Americans who got his message. Now, as if that wasn’t enough, the majority of the country is faced with an aggrieved Supreme Court, now loaded with right-wing extremist Justices, hell-bent on dismantling the progressive advances of the last half century and likely longer.

Forget justice. Forget precedents and settled law. Forget the responsibility to serve democracy and recognize the dangers of a gun epidemic and climate crisis. It’s their time to take matters into their own hands and remake America into a backward-looking land where women know their place, business interests are primary and environmental degradation is of no concern.

Here’s how Hillary Clinton, who attended Yale Law School with Clarence Thomas in the ‘70s, described her old classmate on Tuesday: “He's been a person of grievance for as long as I have known him…Resentment, grievance, anger."

And as if overturning Roe v. Wade was not enough to get back at the liberals, Thomas proffered this threat in his concurring opinion: “We should reconsider all of this Court's substantive due process precedents"—including contraception, intimate gay relationships and marriage equality. “He may be on his own, but he’s signaling,” Clinton added. "He has signaled in the past to lower courts, to state legislatures, to find cases, pass laws, get them up.”

Speaking during a news conference in Madrid Thursday, President Biden weighed in on the Court’s “destabilizing” and “outrageous behavior,” not only in overruling Roe, “but essentially challenging the right to privacy.” Under pressure, Biden asserted that there should be an exception to the filibuster to codify Roe and protect abortion access. Cue Kyrsten Sinema and Joe Manchin to reassert that they won’t support an exception to the filibuster, even to protect women’s reproductive rights.

Yes, that puts the onus back on Democratic voters to increase the number of Democratic Senators, nullifying the impact of Sinema and Manchin and creating the realistic conditions in which Biden could be convinced to increase the number of Supreme Court Justices.

Steven Beschloss @StevenBeschloss

Expand the Court.

Thursday’s 6-3 ruling on the EPA—thankfully, the last of this horrific term—struck like another nail in the coffin, ignoring the consequences to Planet Earth and the human species as it limits the environmental protection agency’s (and President Biden’s) ability to limit carbon emissions and confront rising temperatures, rising seas, and other impacts from rising CO2 levels.

In a sane world, I would question if these Justices grasp the existential dangers in our midst, but that would miss the real point here. As Justice Elena Kagan noted in her dissent, responding to Chief Justice John Roberts’ majority opinion that the EPA shouldn’t be adopting regulations “on its own” authority: “The Court appoints itself—instead of Congress or the expert agency—the decisionmaker on climate policy. I cannot think of many things more frightening.”

That’s the thing. This Court—driven by grievance and justifying itself with opinions and statutes dating back as far as the 13th century (a 1250 treatise by Henry de Bracton) and the 14th century (the 1328 Statute of Northhampton) rather than modern precedents and decided law—has decided to take the country’s fate into its own hands, majority views be damned. This judicial activism is exactly what Republicans have been decrying for decades. As Washington Post columnist Dana Milbank rightly summarized last week, noting that the rulings on abortion and gun rights are “not legal but political, not principal but partisan”:

“The high court was meant to be the guarantor of law and order. But the conservative justices, intoxicated by their supermajority, have abandoned their solemn duty to promote stability in the law and are actively spreading real-world disruption.

“Worse, this invitation to disorder comes as the nation is trying to restore the rule of law after a coup attempt led by a president who appointed three of the five justices in the abortion majority… After decades of crocodile tears over imagined ‘judicial activism,’ the conservative supermajority has shed all judicial modesty and embraced radicalism.”

He concluded that “the radicals have cast off any pretense of judicial restraint. Now the chaos begins.”

But Milbank may minimize the more worrying reality—that the goal is not chaos, but anti-democratic, autocratic rule that prioritizes religion, increases access to guns, reduces women’s rights, permits business interests to dominate over environmental degradation and strips federal authority to strengthen state legislatures.

Think I’m alarmist or hyperbolic? Note that the Court announced its plan to take up Moore v. Harper, a North Carolina redistricting case that could increase state legislatures’ power in determining election outcomes. Elections attorney Marc Elias called it “more significant for the long-term future of democracy than the news from the January 6 hearings.”

Why? This case asks the Court to rule on “whether a State’s judicial branch may nullify the regulations governing [federal elections]…and replace them with regulations of the state courts’ own devising.” Based on the dismissed fringe constitutional theory known as “independent state legislature theory,” Elias explains, the case would consider whether “state legislatures have special authority to set federal election rules, free from interference from other parts of the state government such as state courts and governors.” If so, state legislatures would have unfettered authority to “draw new congressional districts and any map passed by a state judicial system is unconstitutional.”

Just what Trump and his co-conspirators tried to invoke to decertify state election results in 2020 and ignore the legitimate election outcome. Just the kind of case this extremist Court majority may see as its best opportunity to end the ability of “We the People of the United States” to decide our own fate.

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