The Supreme Court's Conservatives Have Asserted Their Power

[In It to Win It]

New Yorker

The lasting depredations of the Trump Presidency were brought into sharp focus by last week’s testimony before the House Select Committee investigating the events of January 6th, which left an indelible portrait of Donald Trump as a food-throwing despot willing to encourage an armed mob to march to the Capitol. And, in addition to an attempted coup, we have him to thank for 2022’s becoming the turning point of the Supreme Court’s conservative revolution.

In a single week in late June, the conservative Justices asserted their recently consolidated power by expanding gun rights, demolishing the right to abortion, blowing a hole in the wall between church and state, and curtailing the ability to combat climate change. The Court is not behaving as an institution invested in social stability, let alone in the importance of its own role in safeguarding that stability. But what if its big and fast moves, eviscerating some constitutional rights and inflating others, are bound for collision? As people harmed by one aspect of its agenda look to other aspects of it to protect them, the Court may not be altogether pleased with where that process leads.

hortly before the Court, in Dobbs v. Jackson Women’s Health Organization, overruled Roe v. Wade, a synagogue filed suit in a Florida court, challenging, under the Florida constitution, the state’s new law criminalizing pre-viability abortions. Among the plaintiff’s claims is that the abortion ban violates the right of Jews “to freedom of religion in the most intimate decisions of their lives.” The suit states that Jewish law stipulates that life begins at birth, not before, and “requires the mother to abort the pregnancy” if there is a risk to her “health or emotional well being.” Thus, the plaintiff argues, the abortion ban infringes on Jewish free exercise of religion.

Many post-Dobbs lawsuits can also now be expected to assert that abortion bans violate state constitutions, which may be more protective of individual rights than the federal Constitution is. Marriage equality, for example, was protected in Massachusetts by a state constitutional ruling twelve years before the Supreme Court declared a federal constitutional right to same-sex marriage. Republican-dominated state courts, no less than G.O.P.-led state legislatures, though, may well stymie such efforts to preserve abortion access. Last month, the Iowa Supreme Court simply overruled its own 2019 decision affirming a state constitutional right to abortion, leaving Iowa free to ban the procedure.

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1. Damn shame that lying under oath has no consequence for scotus nominees