On election night in 2016, millions stood in front of television screens fearing that Trump’s election victory would lead to harsher treatment for groups like people of color, immigrants, women and LGBTQ people. . He had, after all, promised such policies and implemented many of them. With President Joe Biden finally in power after a riotous mob swarmed the Capitol, some thought they could put down their protest signs and breathe a sigh of relief.
Now many of the same Americans are haunted not by the preferences of one elected official, but by the edicts of six unelected ones. The Supreme Court’s decision last Friday in Dobbs v. Jackson Womens Health, which erased abortion rights from constitutional law, demonstrates that even outside the White House, Trump still clings to power. The former president, even as he leads a sweeping House Jan. 6 committee investigation, has retained the ability to shape the law in almost everything, from guns and religion to climate change and to tribal sovereignty.
In particular, some civil rights leaders and jurists see this momentous decision as evidence of a broken political process and the capture of democratic institutions serving the privileged few. In this Court, they see not only a continuity of conservative policy, but of a minority philosophy.
Until the 1960s, we fought on Freedom Rides about the constitutionality of our trips not being enumerated in the Constitution, said Maya Wiley, president of the Leadership Conference on Civil and Human Rights, which maintained a followed Trump’s civil rights rollbacks while he was in office. The logic of Justice Alitos’ opinion puts so much on the table.
For a long time, the Supreme Court has been conceived in the popular imagination and civic culture as a protector of minority rights. Twentieth-century legal circles grappled with the theory of countermajority difficulty, according to which the judiciary was a necessarily undemocratic institution because by declaring unconstitutional a law or executive action, it nullified the will of the people as that it spoke through its representatives, while another camp argued that the Court could continue to advance democracy if it devoted itself to strengthening the representation of minorities in the political process.
But in 2022, these theories are moving further and further from reality. As one researcher in the California Law Review put it, the American electorate is becoming more racially and ethnically diverse, more geographically concentrated and homogenous, and more divided, not just in party affiliations, but in values and beliefs. future prospects.
The Court, however, used its power neither to act as a counter-majority check nor to bolster representation for a growing multiracial electorate. The result: A court that allows a declining white, conservative, exurban numerical minority to exercise substantial control over the national government and its policies.
Sarah Turberville, Constitution Project director of the nonpartisan Government Oversight Project, sees the demise of abortion rights as a symptom of a larger undemocratic disease. It’s a place where too few people hold too much power for too long, and their decision to overturn a 50-year-old precedent in a way that deprives 50% of the population of a right they once held in is absolutely iconic. fundamental problem, she said. It is almost an acknowledgment that it is now a political institution.
In other words, with this Court of Trumps, the United States is getting closer to a democracy for very few and an authoritarianism for the masses.
Democracy for very little
Aziz Rana, a law professor at Cornell Law School, points out that when presidents have enjoyed ideological harmony with the judiciary, they have traditionally also been supported by a robust popular vote that appointed them.
Former Presidents Ronald Reagan and Richard Nixon won landslide re-elections. Their Supreme Court appointments, which ushered in an era of judicial conservatism, accompanied the general conservative tendencies of the time. These political tendencies were reflected in Casey v. Planned Parenthood, which pledged to uphold Roes’ general right to abortion but limited the ruling’s enforceability.
Dobbs is completely different, according to Rana. You have a situation where a minority party imposes an ideological program that has been rejected by a clear majority of the country, he said. Today, only one of the five justices who signed with Dobbs was appointed by a president who won the popular vote, and one of them was only brought to court because of the reluctance of the Republicans to nominate former President Barack Obama, current Attorney General Merrick. Garland, an audience.
Dobbs noted that the ruling did not, however, prevent the people’s elected representatives from deciding how abortion should be regulated. But court watchers point out that the legislative path is fraught with hurdles that the Court itself has set up, such as its 2013 decision in Shelby County v. Holder invalidating part of the Voting Rights Act of 1965 that allowed the government to oversee changes to election laws in counties with a history of voter discrimination.
It’s so disingenuous to say that we were just going to allow political majorities in the state to determine the legality of abortion when everyone in the state can’t vote because of what Republicans and because of what the court allows them to do, said Khiara M. Bridges, a law professor at the University of California, Berkeley School of Law. Our democracy does not deserve this label.
How Trump Became Some Kind of Permanent Lawmaker
Trump’s policies are alive and well on the Supreme Court in other areas of law as well. Last term, the Court allowed Arizona to impose postal and provisional voting burdens, even though those hurdles had a discriminatory impact on black and brown Arizonans.
This year, the Court also struck down a regulation that allowed large workplaces to set vaccine or testing requirements. He also overturned a Maine ban on using taxpayer money to fund private religious schools. A day before Dobbs, he rejected a 100-year-old New York law that required gun owners to show good cause to obtain concealed carry permits, which made it easier to carry a weapon concealed in audience. He also sided with a Christian high school football coach on Monday, allowing him to pray on the 50-yard line, even though the Court ruled in 1962 that school-sponsored prayer violated the separation of Church and State.
The Court is now stacked in such a way that it will not protect marginalized people when it comes to abortion rights. It will not protect LGBTQ communities. It won’t protect the poor, Bridges said. But it will protect Christians.
The decisions that followed were no less important. While the Court paved the way for Biden to end the Trump-era Stay-in-Mexico policy, it also expanded states’ power to prosecute crimes on Indigenous reservations based on the states’ interest. for public security in its territory, and it reduced power. of the Environmental Protection Agency to reduce greenhouse gas emissions.
On the last day of its term, the Court also agreed to hear a case that could give state legislatures exclusive and near-absolute power to regulate federal elections in their states.
Taken together, these decisions illustrate the dangers of presidentialism, Rana said. When a lack of coalition building and compromise paralyzes a political system, a powerful executive can use the courts as an endgame around the legislative process to become a sort of permanent legislator. He noted that the Supreme Court is made more powerful, compared to other democracies, by its lack of term limits, its small size, and the absence of legislative or ethical oversight.
It’s no surprise that the incentives are put in place for Trump while he’s in office largely to avoid any kind of legislative agenda beyond tax cuts for party donors to often operate. using the state security apparatus, as in immigration policy, and then to impose long-term policy changes, not by creating majorities in support of one’s views, but rather by focusing on lifetime judicial appointments, Rana said.
Still, others say Biden will have a role to play in the post-Roe era. One view is based on a theory of preemption: that the Supremacy Clause of the Constitution empowers federal law to prevail over state law when the two conflict. This is the thrust of a recent Columbia Law Review article quoted approvingly by the three dissenters in Dobbs.
Greer Donley, a law professor at the University of Pittsburgh School of Law and one of the authors of the papers, said the theory gave the Biden administration a wide range of constitutional options to fight the move.
Since the [Food and Drug Administration] has both approved abortion drugs and tightly regulated them over the past two decades, which might suggest that states are unable to regulate them any more stringently than the FDA, I was told. she says. And so, to the extent that a state prohibits a drug that is FDA-approved and strictly regulated, it conflicts with federal government policy and is preempted.
In a statement immediately after the ruling, the Justice Department appeared to take that view. States cannot ban mifepristone because of a disagreement with the FDA’s expert judgment on its safety and effectiveness, the attorney general said.
But for Wiley, the lawyers’ role will be to take their advocacy to the local level.
The fact that it is the Supreme Court and not the legislature, not the executive branch means that we are in a very long fight, state by state, locality by locality and at the federal level, on how to protect people.
After landing on the tarmac at Joint Base Andrews on his last day in office, Donald Trump made a promise to the crowd of supporters gathered there: We will be back in some form.
A year and a half after that day, Trump’s policies are back, in the form of a supermajority on the Supreme Court.
Jess Rodrguez is a writer and lawyer in Washington, DC, and publisher of Alienhood, a newsletter on law and illegality.
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