The Supreme Court began its October 2021–22 term under the shadow of looming reform: a presidential commission to study a restructuring of the judiciary and a bill in the House to add four seats to the bench. But the justices and their right-wing backers had little reason to worry. The court’s term ended last week not only with no change to the status quo, but with the court’s six-three conservative majority going all in on reactionary rulings.
The justices ended the constitutional right to an abortion, eased gun regulations in the wake of yet another mass shooting in an elementary school, stripped the Environmental Protective Agency (EPA) of power to address environmental concerns as the planet warms to dangerous levels, and tore down the wall between church and state.
A review of the term reveals a captured court with a fail-safe number of votes to fulfill conservative policy objectives by curtailing constitutional and statutory rights through right-wing interpretations. Left unchecked, the court will use its newfound power to reshape the law, dismantling past rights while striking down past progressive initiatives to ensure a more unjust future.
Abortion, Guns, Agency Power, and Religion
Major goals of the modern conservative political project — advocated by groups such as the National Right to Life Committee, the National Rifle Association, and Americans for Prosperity — include curbing access to abortion, expanding the individual right to bear arms, weakening governmental regulation of markets, and eroding the separation between church and state. In a set of extraordinary decisions that overtly prioritize right-wing political power and preferences over the law, the conservative justices delivered on all four.
In Dobbs v. Jackson’s Women’s Health Organization, a six-three court ended a constitutional right to an abortion. A leaked draft opinion earlier in the term signaled the overturning of Roe v. Wade (1973) and Planned Parenthood v. Casey (1992); the final opinion made it official. Prioritizing faulty historical analysis and notions of “ordered liberty” over precedent and concern for the health and bodily autonomy of women, Justice Samuel Alito writes that the Fourteenth Amendment, which underpins Roe and a host of other rights, “clearly does not protect the right to an abortion.” The decision is the result of a decades-long conservative scheme centered around paring back rights gained at the height of judicial liberalism.
The day before the court found that the Fourteenth Amendment does not protect the right to an abortion, ceding power to determine abortion laws to the states, the conservatives ruled that the same amendment does protect an individual’s right to carry a gun in public, striking down a state law in the process.
The Senate passed the first gun safety bill in nearly three decades shortly after two mass shootings; on the same day, the conservatives on the court dramatically expanded the scope of the Second Amendment. In New York State Rifle & Pistol Association v. Bruen, the six conservative justices struck down a law that imposed limits on obtaining a license to carry a concealed handgun outside of the home. As Justice Clarence Thomas writes for the majority:
New York’s proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense.
The decision also creates a strict standard that prioritizes textualist, originalist tools (“plain text,” “historical tradition”) over empirical evidence for evaluating and upholding gun control measures. As one court observer noted, “The decision will unleash a tidal wave of lower court rulings invalidating laws designed to protect Americans from the carnage of gun violence.”
Laws, rules, and regulations designed to protect people from an uninhabitable planet are subject to invalidation as well. Months after the Intergovernmental Panel on Climate Change declared a “now or never moment” to limit global warming, the Supreme Court curbed the power of the federal government to reduce one of the main agents of said warming. In West Virginia v. EPA, a six-three conservative majority sided with fossil fuel companies to reduce the EPA’s authority to regulate greenhouse gas emissions.
In an interview with Jacobin, Blake Emerson, a professor of law at UCLA specializing in the administrative state, explained the wider implications of the ruling:
The ruling limits EPA’s authority to address climate change by regulating the power sector. More broadly, it imperils Congress’ and federal agencies’ power to protect public health and welfare across the whole economy. It invites ideologically motivated district and appellate court judges to invalidate regulations simply because the judges believe they are too big. We are in a new Lochner era.
The jurisprudential world the Roberts Court has built is not only one in which people have less control over reproductive health, easier access to guns, and fewer safeguards against the whims of industry but also one of forced religious observance.
In Carson v. Makin, a six-three decision falling along ideological lines, the court struck down a Maine program that provides tuition assistance for students to attend accredited, nonsectarian schools. The exclusion of religious institutions from the program, the court ruled, violates the Free Exercise Clause of the Constitution. The decision builds on the court’s growing deference to church over state. In this particular case, that deference may end up denying material benefits to parents in remote sections of a state seeking affordable education for their children.
Even if parents choose to send their children to nonreligious schools, students might be forced to listen to and participate in prayer. In Kennedy v. Bremerton School District, a six-three conservative majority permitted a football coach to pray at the fifty-yard-line after a game. The justices held that both the Free Exercise and Free Speech Clauses “protect an individual engaging in a personal religious observance from government reprisal.” (Nevermind the fact that the coach’s observance was far from personal — a picture in the dissent shows a crowd of players from both teams huddled around the coach in prayer.) In reaching this decision, as Elana Kagan writes in a pointed dissent, “The court rejects long-standing concerns surrounding government endorsement of religion.”
“In eleven days, the Justices rewrote the law of abortion, guns, and religion, as well as making it much harder for the government to fight climate change, based much more on conservative personal values than law,” Eric Segall, a professor of law at Georgia State University, told Jacobin:
These eleven days, while more eventful than most, represent a difference in degree not kind. Ever since the court stopped Congress from ending slavery in the territories in 1857, our nation’s highest “court” has been a reactionary force in American politics much more often than not, preserving out-of-date ideas and white male Christian supremacy. It is well past the time the people and the elected branches see this supreme veto council for what it is and isn’t. It is not a court of law but a tool of oppression.
Motorists driving down a certain stretch of highway in Birmingham, Alabama, in 1963 could look out their window and see a billboard adorned with a waving American flag next to pleas to “Save our Republic” and “Impeach Earl Warren.” The propaganda was courtesy of the right-wing John Birch Society and came in response to the liberalism of the Supreme Court embodied in cases like Gideon v. Wainwright (1963), a decision that guaranteed the right to counsel in criminal cases for defendants who could not afford one of their own.
Conservatives would find their remedy over half a century later in Shinn v. Ramirez and Jones, a six-three decision falling along ideological lines written by Clarence Thomas, a noted skeptic of Gideon.
The court ruled that federal courts may not conduct evidentiary hearings in cases involving state prisoners who lacked sufficient counsel —a right that is guaranteed by the Sixth Amendment. And in Vega v. Tekoh, the conservatives on the court clawed back yet another Warren Court ruling: Miranda v. Arizona, a case requiring law enforcement officials to advise suspects of their right to remain silent and obtain an attorney.
Tekoh holds that suspects may not bring civil rights suits against officers who fail to recite Miranda rights. Both rulings, as Sotomayor aptly notes in her dissent of the latter, “[injure] the right by denying the remedy.”
When the Supreme Court handed down its decision in Circuit City Stores Inc. v. Adams (2001), ruling that employers can require arbitration of disputes rather than a public settling, Linda Greenhouse, a veteran court reporter for the Times, described it as a “major victory” for employers. The victories would continue.
The most pro-business court in a generation closed the courthouse door for workers seeking a fair redress of grievances in subsequent decisions such as Epic Systems v. Lewis (2018), a case holding that companies can use arbitration clauses in employment contracts to bar class-action suits.
Despite these rulings that strengthened capital’s power by way of arbitration, the justices did impose certain limits on forced arbitration. In Morgan v. Sundance, for example, a unanimous court ruled that defendants (in this case, employers) can lose their chance to arbitrate if they wait too long to do so. And in Southwest Airlines Co. v. Saxon, the court ruled in favor of an airline employee, ruling that employers who work with airplane cargo belong to a “class of workers engaged in foreign or interstate commerce” and are therefore exempt from the Federal Arbitration Act (FAA).
“The court’s recent unanimous opinions in [both cases] nibble at the edges of arbitration law as applied to employment but do nothing important for large classes of workers,” Michael Duff, a professor of law at Saint Louis University who specializes in labor and employment issues, told Jacobin.
“So what do Saxon and Sundance do?” Duff asked. He answered his own question:
Perhaps no more than prevent the federal courts from coming to absurd results under the text of the Federal Arbitration Act itself. Yippee, I guess. None of this changes the utter absurdity of applying the FAA to employment contracts — now a fait accompli signed on to by “liberals” and “conservatives” alike. . . . Compulsory arbitration [is] rapidly leading to the destruction of the employment relation.
Campaign Finance and Voting Rights
The court of the early 1900s is often referred to as the court of the Lochner era for a case that struck down worker-friendly regulations and was representative of the court’s larger, free-market jurisprudence. A host of the legal podcast 5-4 recently said, “This is going to be the Citizens United era. I think that’s how we’re going to look back at this . . . as when [an] arch-conservative court went wild disassembling our democracy, gutting the Voting Rights Act . . . or handing [an election] to George Bush.”
The comparison stemmed from a discussion of Federal Election Commission v. Ted Cruz for Senate, a case from this term in which a six-three Court ruled that candidates may “loan” their campaigns unlimited money and be paid back with donor funds after an election.
The decision, handed down in favor of a prominent GOP senator who aided in installing the conservative justices, builds on a campaign finance jurisprudence crafted to favor the wealthy. Citizens United created a nearly unbreakable synthesis between money and politics, ensuring an upper hand in the electoral system for those with access to higher cash flows, sidelining working-class candidates in the process. FEC v. Cruz exacerbates the harms of Citizens United, cushioning the funds of the wealthy and well-connected while bolstering both the perception and reality of corruption.
The justices not only further tipped the electoral scales toward those with power (and money) this term. They also disenfranchised voters on the margins. In a dispute over voting maps in Wisconsin, one of the most competitive (and therefore consequential) states in national elections, the court in an unsigned opinion (part of the increasing use of the blatantly undemocratic shadow docket) sided with the state’s Republican-led legislature in throwing out maps drawn by the Democratic governor that would have increased black voters’ political power in the state assembly.
In a similar case involving electoral maps and racial gerrymandering, the court, in an unsigned six-three decision, halted a lower court order throwing out a Louisiana map that was found to limit the voting power of minorities.
Where Do We Go From Here?
The day the Dobbs decision was handed down, I attended a protest against the court. As the sun set, picket signs marked with pleas to “Abort the Court” in the light of early summer dusk, tens of thousands of people overwhelmed the streets of lower Manhattan, outraged that six unelected people could end a fundamental right.
What made this protest different from so many others was the nature of the body the protest was directed against. The court’s power stems largely from public opinion. And that opinion is plummeting in real-time.
“This term may well force a long-postponed reckoning like none before,” Samuel Moyn told Jacobin. Moyn, a law professor at Yale, submitted testimony to the Presidential Commission on Supreme Court Reform.
The Left needs to address the radical nature of the court — guiding and channeling the public show of force against the court into institutional action that radically alters it.
“Democrats at all levels need to engage in the court reform debate, and the essential hope is that grassroots politics forces them to do so,” Moyn said:
The Left’s role is to demand that Democratic party leaders engage in court reform politics to the hilt, rather than ask experts what they think and then use the death of Roe merely to encourage election turnout, as if Americans didn’t deserve a plan of action.
In particular, the Left should demand that the party go to the polls promising to enact a federal abortion rights statute if it can hold the House while getting two more senators (and commit to blowing up the filibuster). And the Left’s best tactic is to attach to that statute a provision that strips courts of the jurisdiction to invalidate the law, and/or requires a supermajority of Supreme Court justices to do so. If it works, this plan provides a roadmap for disempowering the courts in other areas.
While disempowering the court will prove difficult, history shows us that it is not impossible. Abraham Lincoln was successful in his push to restructure the court after the calamity of Dredd Scott. Members of Congress reduced the number of seats on the bench to deny Andrew Johnson an appointment amid his efforts to forestall Reconstruction.
Throughout American history, at points when the Court threatened fundamental rights and liberties, political actors stepped in to curb the judiciary’s reach. After a term that laid bare the immense power and reactionary nature of the Roberts Court, it is clear that this moment demands the same response.