Liberals have been reeling since the Supreme Court released a series of decisions blowing up precedents the last week of June.
The most notorious decision was in the case of Dobbs v. Jackson Women’s Health Organization, in which the right-wing six in the majority threw out the 49-year-old precedent established by Roe v. Wade in 1973 and and Planned Parenthood v. Casey in 1992 that granted women the right to terminate pregnancies.
On June 24 the Court threw the issue to the states. Chief Justice John Roberts joined in the judgment upholding the Mississippi law that banned most abortion operations after the first 15 weeks of pregnancy, but he argued against overturning Roe and Casey in their entirety.
But the Court also weakened the sovereign right of Indigenous tribes to enforce the law on their lands (Oklahoma v. Castro-Huerta), restricted the rights of states to regulate the carrying of firearms (New York State Rifle & Pistol Association Inc. v. Bruen), and enabled a return of Christian prayer in public schools (Kennedy v. Bremerton School District).
The Court also, in the case of West Virginia v. EPA, significantly reduced the Environmental Protection Agency’s authority to regulate a major source of the carbon emissions destabilizing our climate under the Clear Air Act. Miles Mogulescu noted at that the extremist right-wing justices were so anxious to kneecap government regulation of business that “the Court took up West Virginia v. EPA despite the fact that there’s no current rule regulating greenhouse gas emissions from power plants; the Trump administration repealed it in 2019, and the Biden administration has not yet replaced it. In other words, SCOTUS ruled on a regulation that does not currently exist.”
Predictably, some on the left complained that Democrats failed to anticipate the Supreme Court might overturn Roe and had not codified the right to abortion in 2009, the last time they had a filibuster-proof majority of 60 Democratic senators. But facts are stubborn: President Barack Obama had 60 Democratic senators for only about 14 weeks in 2009, while he was trying to rescue the economy the previous Republican administration had plunged into recession and Democrats were passing the Affordable Care Act.
The Democratic Senate caucus in 2009 stood at 59 during the first seven months of the session, while Republicans litigated Al Franken’s narrow victory in Minnesota. Even after Franken was sworn in on July 7, Ted Kennedy was housebound due to illness that claimed his life a few weeks later. Paul Kirk replaced Kennedy on Sept. 24, finally bringing the Democratic majority up to 60 in practice. After that, the Senate was in session for 11 weeks before taking its winter recess, followed by three weeks until Scott Brown won Kennedy’s seat in a Massachusetts special election in January 2010.
In that limited time, Senate Democrats decided they could move one major legislative initiative through the committee process, given the myriad ways the minority party can slow the process and Minonority Leader Mitch McConnell determined to block progress. Obama chose to press for the Affordable Care Act. And even with that, Senate Democrats finally passed the bill in December 2009 and finished budgetary fixes in March 2010 with the reconciliation process.
Obama aides have said they never had enough votes to get a bill codifying Roe past a filibuster. Abortion is a hot-button issue that many Democratic senators didn’t want to bring up, particularly when, in 2009, there were still six Supreme Court justices who had supported the Roe decision.
Then, many potential Democratic voters didn’t see an urgent need to show up for the midterm election in 2010, so Dems lost six Senate seats and 63 House seats, as Republicans gained control of the House. Also, Republicans flipped control of 20 state legislative chambers, allowing them to control redistricting from the 2010 census and gerrymander legislative and congressional districts for a decade.
Democrats had a chance to increase the pro-Roe majority after right-winger Antonin Scalia died in February 2016, but McConnell was majority leader after Democrats again stayed home during the 2014 midterm election. President Obama nominated D.C. Appeals Court Judge Merrick Garland to succeed Scalia, but McConnell refused to allow Garland a confirmation hearing and kept the seat open the rest of the year, leaving the Court split 4-4.
Even with an open seat on the Supreme Court going into the 2016 election, and Donald Trump promising to appoint anti-abortion justices, enough people from the center/left didn’t see enough urgency to get out and vote for Democrats with Hillary Clinton heading the ticket. She won the popular vote by three million, but lost in the Electoral College by 77,000 votes in Michigan, Wisconsin and Pennsylvania. When those votes were certified, the fall of Roe was ordained.
Trump lost no time nominating Neal Gorsuch for the open seat on Jan. 31, 2017, and McConnell, whose majority was reduced to 52-48, took away the filibuster for Supreme Court confirmations. McConnell pushed Gorsuch through confirmation on a 54-45 vote in April 2017. Trump then persuaded swing Justice Anthony Kennedy, who had supported abortion and gay rights, to retire in July 2018. Trump nominated Brett Kavanaugh to take Kennedy’s seat and, after a contentious hearing alleging sexual misconduct, Kavanaugh slipped through on a 50-48 vote Oct. 6, 2018, securing a 5-4 Court to overturn Roe as long as Chief Justice John Roberts sided with the right wing.
Then, on Sept. 18, 2020, Justice Ruth Bader Ginsburg, after several years of poor health, died from complications of pancreatic cancer at age 87. Some on the left have criticized her for staying on the Court too long, rather than open a seat for a younger liberal while Obama was president and Democrats still held the Senate. But Ginsburg was concerned that Republicans would use the filibuster to prevent Obama from appointing a liberal jurist — and she was probably right. After Trump won, she tried to survive his administration — and she nearly did. When she passed, there was no question Republicans would ignore their supposed principles about letting voters have their say. Instead, McConnell and Judiciary Chair Lindsey Graham cleared the way for a third Trumper on the Court, who turned out to be Amy Coney Barrett, confirmed Oct. 27, 2020, on a 52-48 vote.
Republicans think they have an entrenched right-wing majority on the Court, and they may be right, but this is no time to give up. If you think the Supreme Court can’t get worse, just wait until next year! At least four justices voted to hear the case of Moore v. Harper, which could affirm the radical “independent state legislature” doctrine, which holds that state legislatures have the authority to nullify popular votes and assign electors to the losing candidate in presidential election, as Trump tried to do in 2020.
If we’ve learned anything in the past 12 years, it is that everybody needs to get out to vote in the coming midterm election. If Democrats can hold onto their majority in the House and defend incumbent Democratic senators in Arizona, Nevada and Georgia, they have a good shot at picking up Senate seats in Florida, North Carolina, Ohio, Pennsylvania and Wisconsin. If that happens, we can talk about right-sizing the Supreme Court and taking the majority away from the oligarchs who are seeking to crush democracy.
We can worry next year about whether Joe Biden should run for re-election in 2024. — JMC
From The Progressive Populist, August 1, 2022
Blog | Current Issue | Back Issues | Essays | Links
About the Progressive Populist | How to Subscribe | How to Contact Us
