Friday, March 31

Bloodied but unbowed: liberal justices wield dissents as weapon of resistance | U.S. Supreme Court

The US supreme court, with its new rightwing supermajority, is transforming America at breakneck speed. In a single judicial year, it overturned the right to an abortion, unleashed legally carried guns on to city streets, stymied government action to combat the climate crisis and Covid pandemic, and took a hatchet to the time-honored separation of church and state.

Seasoned observers described the 2021-22 term that ended in June as perhaps the most momentous in the court’s 233-year history. The six rightwing justices – three of them appointed by Donald Trump – demonstrated an iron grip over blockbuster cases.

The three liberal-leaning justices, by equal measure – Stephen Breyer, Elena Kagan and Sonia Sotomayor – were outnumbered and bloodied. When the court reconvenes in October, the retired Breyer will be replaced by Ketanji Brown Jackson, but the same punishing 6-to-3 dynamic will prevail.

Bloodied but unbowed. The three liberal justices may be in the minority, but they are fast emerging as a vital resistance to the Trump-instigated judicial revolution now under way.

That resistance is reflected in the dissenting opinions produced by the three. Not only were liberal dissents more in evidence in 2021-22 – Sotomayor alone wrote 13more than she has in any previous term – but the language deployed in them was also direct and unrestrained.

The dissents went beyond political disagreements over jurisprudence. They amounted to the sounding of an alarm, alerting the nation that equal rights, constitutional government, and even what it is to be an American, are all under threat.

Here are six of the most visceral warnings contained in the dissents of the three liberal-leaning justices.

1. Attacking equal rights and individual freedoms

Over 60 white-hot pages of dissent, Breyer, Sotomayor and Kagan tore into the majority ruling in Dobbs v. Jackson that overturned the constitutional right to an abortion. Pointing out that such a right had been the law of the land for half a century, they decried the ruling as a full-on attack on an individual’s freedom.

“After today, young women will come of age with fewer rights than their mothers and grandmothers had,” the dissenting opinion said. From the moment of fertilization, “a woman has no rights to speak of”.

The decision struck at the core of American values, they said. Individual freedom and equal rights “have gone far toward defining what it means to be an American. For in this nation, we do not believe that a government controlling all private choices is compatible with a free people.”

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2. Overriding the will of Congress and that of the American people

The ultimate source of power in the United States is “we the people.” Today there are 240 million citizens eligible to vote for their representatives in Congress and president.

And then there are the five men and one woman who control the supreme court and who are busily changing the face of America.

The liberal-leaning justices accuse their rightwing peers of supplanting their own will over that of “we the people”. Kagan wrote the dissent to West Virginia v. EPAthe ruling majority which hobbled the power of the Environmental Protection Agency (EPA) to tackle the climate crisis by regulating fossil-fueled power plants.

Kagan charges the six rightwing justices of ignoring clear instructions given to the EPA by Congress to address the “potentially catastrophic harms” of global heating. The justices had in effect rewritten the Clean Air Act in favor of their own policymaking.

“The court appoints itself – instead of Congress or the expert agency – the decisionmaker on climate policy. I cannot think of many things more frightening,” Kagan said.

In a separate 6-to-3 ruling, the supermajority blocked the Biden administration’s requirement that employees of large businesses vaccinate themselves against Covid or take weekly tests. A dissenting opinion from all three liberal justices said that, here too, the majority had denied the will of the people as expressed in the 1970 law that commanded the Occupational Safety and Health Administration (Osha) to protect workers “exposed to grave danger”.

On the one hand, the dissent said, there is the Osha trying to protect employees from the “grave danger” of Covid. The agency is responsible to the president, who in turn “is responsible to – and can be held to account by – the American public”.

On the other hand, there is the supreme court. “Its members,” the dissenters noted acerbically, “are elected by, and accountable to, not one.”

3. Undermining the integrity of the supreme court and the rule of law

The liberal-leaning justices accuse the supermajority of abandoning long-held legal principles in their rush towards radical change. Foremost of these is “stare decisis” – “to stand by things decided” – a respect for past precedents set by the court.

By throwing out the right to an abortion established in 1973 by Roe v Wade, the six rightwing justices had disregarded stare decisis, and shown that “today, the proclivities of individuals rule. The court departs from its obligation to faithfully and impartially apply the law,” Breyer, Sotomayor and Kagan wrote.

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The rightwing justices are very sensitive to the suggestion that they are acting according to political whim rather than legal principle. Last September, Clarence Thomas, arguably the de facto leader of the new supermajority, irritably denied the claim.

“The media makes it sound as though you are just always going right to your personal preference,” he bemoaned.

He need not look to the media for such an accusation. Three of his fellow justices have expressed it forcefully.

In their dissenting opinion in Dobbs, the liberal justices noted that it took less than two years following the appointment of Trump’s third pick, Amy Coney Barrett, for the court to overthrow Roe v Wade. Such a rapid shift, they argued, could not be explained by any change in the social landscape of the country.

The only thing that had changed was the composition of the court, and with it “the new views of new judges. The majority has overruled Roe for one and only one reason: because it has always despised them, and now has the votes to discard them.”

The consequences of the highest court being seen to be swayed by personal biases rather than legal principles are potentially cataclysmic. “It undermines the court’s legitimacy,” the dissenters warned.

4. One law for the rich, another for the poor

In their Dobbs dissent the three justices spell out the impact of ending abortion rights for women of contrasting means. Wealthy women will “find ways around a state’s assertion of power”, traveling out of states that ban abortion to those where it is legal.

Other women without the resources “will not be so fortunate.” They might resort to an illegal abortion and be harmed “or even die”; they might give birth to the child at great cost to themselves and their families; “at least, they will incur the cost of losing control over their lives.”

The dissenters warned that the consequences go beyond the devastating impact on individual women. A central pillar of the US constitution, of American values, has also been destroyed – equal protection under the laws.

“The constitution will, today’s majority holds, provide no shield, despite its guarantees of liberty and equality for all.”

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5. Turning the clock back to the 18th century

In New York State Rifle & Pistol Association v Bruenthe supermajority threw out New York’s restricted licensing regime for firearms, opening the door to concealed and loaded handguns being carried publicly in US cities.

Thomas, who wrote the ruling, rejected any argument relating to the dangers posed by guns in modern America, where gun violence far exceeds that in comparable countries. Instead, he argued that licensing regimes had to be consistent with “this nation’s historical tradition of firearm regulation” and specifically with the way the US ruled in 1791 when the second amendment right to bear arms was ratified.

In his dissent, Breyer said that this “history-only approach” not only ignored the “real and present danger of guns in modern American society”, it set a framework that was so rigid it would be impossible to apply to modern situations “beyond the Framers’ imaginations”.

How, for instance, could centuries-old laws “dictate the legality of regulations targeting ‘ghost guns’ constructed with the aid of a three-dimensional printer?”

6. This is just the beginning

Perhaps the most chilling warning given by the liberal justices is that the hurricane of contentious rulings issued by the supermajority this term is not the end of the revolution – it is just the beginning.

“No one should be confident that this majority is done with its work,” they write in their Dobbs dissent.

The supermajority could go on to ban all abortions nationwide, from the moment of conception and with no exemptions for rape or incest. They could also use exactly the same arguments deployed to overturn Roe to go after contraception, the right to same-sex intimacy and marriage, and even interracial marriage.

The logical conclusion of the supermajority’s legal tactics is that “all rights that have no history stretching back to the mid-19th century are insecure … Additional constitutional rights are under threat.”

Sotomayor closed her dissent in Carson v Makin on a profoundly disturbing note. The 6-to-3 ruling bulldozed decades of precedent on the separation of church and state by insisting that Maine had to extend its taxpayer-funded tuition assistance program to include students attending religious schools.

“With growing concern for where this court will lead us next,” Sotomayor wrote, “I respectfully dissent.”

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