This month has shown us the full range of hypocrisy in our nation’s highest court. The court’s majority claims to be “originalists” beholden to the Constitution, yet their rulings belie this claim instead showing them to be radically reactionary basing decisions on ideological or religious goals.
- Carson v. Makin (6-3): The SCOTUS majority completely disregarded the separation of church and state in their decision allocating public funding to religious schools in Maine. This goes counter to the First Amendment and allows the government to directly fund religious teaching with taxpayer dollars.
- New York State Rifle & Pistol Assn., Inc v. Bruen (6-3): The SCOTUS majority took away state’s rights to enact restrictions based on common sense gun control measures such as limiting who can carry a concealed weapon. Restrictions on gun ownership are well within the framework of the Constitution’s Second Amendment which is mute on private gun ownership or where one can carry a gun. As a result, this court majority imposed a federal mandate which will undoubtedly increase gun violence not based on any Constitutional rights.
- Vega v. Tekoh (6-3): The SCOTUS majority determined that people arrested by police have no recourse if they are not read their Miranda Rights upon arrest. This pushes us further toward turning the U.S. into a police state.
- Dobbs v. Jackson Women’s Health Organization (6-3): The SCOTUS majority took away federal protections on a woman’s right to choose when or if to carry a pregnancy to term throwing that legal authority to the states. That means that a woman’s most personal decisions related to their own reproductive freedom will depend upon their state of residence.
These recent decisions show these wildly unpopular majority opinions are not based on precedent or the Constitution but instead are based on an ideological agenda that goes counter to our legal foundation. These decisions will target women, racial minorities, and people of limited financial means most dramatically, unfairly putting their lives at unnecessary and often preventable risk.
These decisions also denigrate our Constitution by stripping away long-standing protections. The value of having a Constitution like ours is that it shouldn’t matter where in the country one lives, their rights should be protected. This ideologically driven SCOTUS majority was largely appointed by presidents who did not win the popular vote. To wit:
- Donald Trump – lost the popular vote by 2,868,686 votes
- Amy Coney Barrett
- Brett Kavanaugh
- Neil Gorsuch
- George W. Bush – lost the popular vote by 543,895 votes
- Samuel Alito, Jr.
- John Roberts
Clarence Thomas was appointed by George H.W. Bush who won the popular vote, but he was confirmed by a narrow margin of 52-48 with bipartisan support both for and against after very contentious confirmation hearings revealing Thomas’ clear character and ethical issues. With all that has transpired through the January 6, 2021 investigations, it’s clear that Justice Thomas should be removed for serious conflicts of interest and his refusal to recuse himself from related proceedings. Like Thomas, most of these ideologues lied during their confirmation hearings, but unlike the lower courts, there is no formal ethical code of conduct for Supreme Court Justices much as there should be. These men and women receive lifetime appointments and affect every single American through their rulings even though the American public never voted for them or had a say in their confirmations directly.
With the overturning of Roe v. Wade, women are not only at risk for being forced to carry unwanted pregnancies that will negatively damage their health and financial well-being, they are also at risk for criminal prosecution for bad outcomes even in wanted pregnancies that end in miscarriages or stillbirths. Bad outcomes are something that happens frequently as a matter of course, and to increase the likelihood of criminal prosecution in such cases is nothing short of abject cruelty.
Prosecutors have discretion in which cases they pursue, but without federal protections in place, it will be easier to prosecute and convict people along ideological lines, in essence punishing women for being able to become pregnant in the first place if something goes medically wrong.
Beyond the current decisions, which remove longstanding rights, it’s also clear that precedent and Constitutional protections are not enough to prevent further erosion of our rights. Access to and a legal right to birth control is opposed by these ideologues and could become unavailable in many parts of the country. Strides in LGBTQ+ rights could also be struck down. No rights are safe from attack through this process, and the hypocrisy exhibited by these so-called originalists who refuse to even follow the original documents they claim to revere knows no bounds.
There are ways that this imbalance could be addressed, but they would require large Democratic majorities to enact them. The first way would be to expand the court. In 1869 when the court was frozen at nine justices, there were nine federal appellate courts through a sparsely populated country. In 2022, there are now 13 federal appellate courts in a much more populous country. Based on our growth, and historical precedent, the court should reasonably be expanded to 13 to regain some semblance of representation and balance.
The biggest way to deal with this is to vote like our lives depend on it because they do. Congress writes the laws. We need to elect legislators who will enact legislation to protect our basic rights including but not limited to reproductive choice, Miranda warnings, freedom from government sponsored religion, and to not be in the cross-hairs of some “good guy with a gun” everywhere we go.
Today is a dark day in America where justice is supposed to be blind but not a den of hypocrisy. Let’s ensure that the SCOTUS motto stops being “Hypocrites R Us” before it becomes enshrined in stone.
Editorial note: The disastrous impacts on personal health and financial well-being along with negative workplace implications from overturning Roe v. Wade apply to all people who could potentially become pregnant no matter their gender identification. Further, the potential for career and societal discrimination against all people who are something other than white cis-male from birth increases as well.
Further reading and viewing: