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Behaving Badly II
Books & Such

Behaving Badly II 

After penning biographies of four individual Supreme Court Justices—Sandra Day O’Connor, Antonin Scalia, Sonia Sotomayor, and John Roberts—CNN’s Senior Supreme Court Analyst Joan Biskupic has now produced a scathing indictment of the current Court and its 6-3 conservative majority; including five whose interpretations of the US Constitution have the potential to undermine over 70 years of American progress.

In Nine Black Robes: Inside the Supreme Court’s Drive to the Right and its Historic Consequences (2023), Biskupic offers clear evidence that this radical majority has no respect for well-established precedents of settled case law and is driven by personal ideologies that defy the long-standing traditions and practices of the Court.

Clearly, their most profound decision to date is the overturning of Roe V. Wade, 1973 and the dismantling of the federal protection of reproductive rights. While Chief Justice John Roberts sided with a Mississippi law that restricted access to abortion after 15 weeks in Dobbs v. Jackson Women’s Health, 2022, he did not go along with the other five conservatives—Samuel Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—who cast their votes to overturn Roe.

While abortion access has been a contentious issue for generations, roughly two-thirds of Americans today have lived their entire lives under a Constitution that protected reproductive rights for women. Biskupic quotes Sandra Day O’Connor who said from the bench, in a 1992 case that affirmed Roe, “Some of us as individuals find abortion offensive to our most basic principles of morality, but that can’t control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.” 

O’Connor, and then Justice Anthony Kennedy, and reluctantly, Chief Justice John Roberts, all, at one time, served to temper the Court by staking out a space in the middle. As Biskupic offers, by the time Amy Coney Barrett replaced Ruth Bader Ginsburg—cementing a five vote far-right majority that may exist for decades—“The middle had evaporated. Long gone are the days of principled conservatives whose personal views were set aside when deciding the law for us all.”

The divisive nature of the Dobbs decision is that the Court determined that the question of abortion access is best left to the states. As a result, a woman today sees her basic human rights come and go as she travels across the country.

This “states’ rights” argument harkens back to an era when America’s divisions led to civil war. The settling of that question in the aftermath of the war was addressed by amending the Constitution: abolishing slavery, guaranteeing “equal protection of the law,” and protecting voting rights. 

Many aspects of our lives today include federal laws that are touched by these amendments. This amended Constitution gave the federal government the power to prevent state and local governments from denying basic human rights. With a Supreme Court majority now questioning federal authority and deferring to the states, we now live in a country where our most basic assumptions of liberty are being challenged.

It seems that no issue is immune: immigration policy, gun rights, labor organizing, affirmative action, and more.

LGBTQ rights, which have been protected over the last twenty years, are being threatened despite the fact that, as Biskupic notes, “[t]he national momentum beyond the judicial sphere favored the acceptance and legalization of gay rights. Some eleven million adults in the U.S. identified in 2020 as LGBTQ—lesbian, gay, bisexual, transgender, or queer. (The number in 2022 was closer to eighteen million).”

Closet doors have opened across the country because of this “national momentum” of acceptance, while the Supreme Court stands ready to turn back the clock on this inspiring step forward in recognizing the civil rights of all Americans.

More specifically, the Court’s conservative majority has already hinted that federal protections for gay marriage may be on the chopping block. Biskupic cites Justice Anthony Kennedy, who wrote in support of gay marriage in 2015, “The nature of injustice is that we do not always see it in our own times.” Kennedy is long gone and I just don’t see Brett Kavanaugh, who filled his seat, expressing a similarly objective sentiment.

The Court is challenging federal power in other areas as well and, in one case, the very health of the planet is at stake after conservatives ruled 6-3 against the Environmental Protection Agency. As Biskupic writes, the Court determined that a “program to limit carbon dioxide emissions at coal-fired power plants went beyond the agency’s authority under the 1970 Clean Air Act.”

And, in a sneak peak of things to come while echoing Trumpian claims of “Fake News, Fake News,” Clarence Thomas has voiced antagonism toward New York Times v. Sullivan, 1964, a landmark and precedent-setting case supporting freedom of the press.

“On the whole,” Biskupic writes, “[Thomas] criticized the Supreme Court’s reliance on stare decisis, a principle that values stability in the law and usually prevents reversal of precedent, and he took to saying, ‘We use stare decisis as a mantra when we don’t want to think.”

Biskupic adds that issues like abortion and LGBTQ rights are being decided “in the name of religion.” This is consistent with Donald Trump’s pledge that, as she quotes the then-candidate, “in a Trump administration, our nation’s religious heritage would be cherished, protected, and defended like you have never seen… We are stopping cold the attacks on Judeo-Christian values.” Of course, it is Trump’s three Supreme Court selections under the politicking of then-Senate Majority Leader Mitch McConnell that has secured this disgraceful campaign promise.

Trump pulled no punches as he campaigned in 2015 and 2016 openly promising to appoint justices who would overturn Roe. Following the guidance of The Federalist Society—a conservative legal organization of immense power—Trump also published a list of potential nominees to the Supreme Court. These moves undoubtedly contributed to his shocking victory over Hillary Clinton in 2016, as Evangelical Christians and other pro-life supporters flocked to the polls despite the obvious moral shortcomings of the Republican nominee. 

Biskupic argues that the decisions emanating from this Court align neatly with the views of Donald Trump’s political base and those of Senator McConnell. Biskupic demonstrates the boldness of these justices who seem to flaunt the manner in which they reached the highest court with no pretense of separation from the other branches of government. “All three… Trump justices,” she writes, “made sure that one of their first public appearances after joining the bench was at a McConnell-related occasion.”

The “potency” of a six-justice majority, Biskupic writes, has “given the right wing a new confidence, beyond a single extra vote, to reconsider and overturn half a century of rights and regulations.”

Almost certainly emboldened by this deference to the religious right from the Court, Oklahoma has recently authorized a charter school to be funded with taxpayer dollars and run by the Catholic Church. This is clearly a violation of the separation of church and state as decreed in the First Amendment. However, the final say on the matter will likely be made by a conservative and religiously driven Supreme Court majority. Indeed, the six conservative justices are all Catholic and, although this is not supposed to matter, it is extremely difficult with this Court to imagine otherwise.*

Other legislation emanating from red states is nothing less than terrifying; banning books in public schools that celebrate our diversity, outlawing the teaching of less-than-flattering aspects of American history, limiting discussions of gender identity and sexual orientation, and much more. These conservative lawmakers are taking bold steps with the confidence that any challenges to the constitutionality of these laws will eventually be determined by their political allies on the Supreme Court.

Most threatening to the very fabric of our society as we know it are a flurry of recently passed state laws that limit voting rights. As liberal Justice Elena Kagan said, the Voting Rights Act of 1965 is “a statute that stands as a monument to America’s greatness, and protects against its basest impulses.” Those base impulses are now reverberating through state legislatures across the country as they produce gerrymandered maps, outlaw forms of voting that make it possible for minorities to cast ballots and, in a shout out to the “big lie” of election “tampering” in 2020, the Court is now reviewing a case—Moore v. Harper – testing the independent state legislature theory that considers whether state legislatures have the absolute final say on casting electoral votes in presidential elections; bypassing any review from state courts or the governor.**

(Surprisingly, while writing this on June 8, 2023, Roberts and Kavanaugh joined the three liberal justices to order Alabama, in Merrill v. Milligan, to redraw its congressional map because it discriminates against minority voters. This may be an indication of Supreme Court “horse trading,” a sketchy behind-the-scenes negotiation among justices or—my speculation here—just maybe, Roberts convinced Kavanaugh that the court’s radical moves were damaging its reputation; as they certainly are. If so, books like The Nine Black Robes—and others sounding the same alarms—may be reminding at least some of these conservative justices that the job they took came with an oath).

As Biskupic closes out this deftly researched book, which includes personal conversations with many of the justices, she cites the author of the opinion overturning Roe, Justice Samuel Alito, who defended the Court’s outrageous behavior by claiming that “saying or implying that the Court is becoming an illegitimate institution or questioning our integrity crosses an important line.”

Yes, Sam, it does. And the line crossed, as Biskupic writes, was “brought on by a majority laying waste to precedents and… offering no one confidence that it was done with its work.”

Something tells me that Joan Biskupic is not done with her work either.


 **Some cases still pending as of June 6, 2023

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