The Supreme Court’s rulings over the last few weeks on abortion, gun violence prevention, public funding of religious institutions, and the powers of executive branch agencies reflect a political and ideological agenda, not a coherent legal or judicial philosophy. All of them overturned long-standing precedents – something all the justices pledged not to do in their confirmation hearings and something that justices believing in laws and rights “deeply rooted in the nation’s history and tradition” wouldn’t do.
(Note: If you find my posts too long or too dense to read on occasion, please just read the bolded portions. They present the key points I’m making and the most important information I’m sharing.)
The six radical, reactionary justices [1] on the U.S. Supreme Court are justifying their rulings with rationales that are inconsistent and contradictory. This is most evident in their use of the following three principles:
- Belief in a weak federal government and strong state governments (discussed in this previous post),
- Belief in “originalism” or “textualism,” i.e., that the language and meaning of the Constitution and its amendments as and when written should be adhered to (discussed in this previous post), and
- Belief in the legality of laws and rights supporting practices “deeply rooted in the nation’s history and tradition” (see below).
In the June 24, 2022, ruling overturning Roe v. Wade’s establishment of a right to an abortion, the six radical, reactionary justices (Roberts, Alito, Barrett, Gorsuch, Kavanaugh, and Thomas) ruled that the federal government could not constitutionally guarantee this right because it is not “deeply rooted in the nation’s history and tradition.” Apparently, the 50 years since the Roe v. Wade decision is not long enough to be deeply rooted. Nor is the fact that women have quietly had abortions literally forever.
In his majority-supported opinion, Justice Alito relied on an English judge from the 1600s (who believed that some women were witches and that wives were the property of their husbands) to conclude that there is no “deeply rooted tradition” of women being allowed to control their reproductive choices and bodies. If this antiquated worldview is the “tradition” that determines modern liberties, then the only liberties safe from the radical, reactionary justices are the handful of rights expressly mentioned in the Constitution – rights that were enumerated by white, male landowners in the late 1700s. Based on this standard, women’s right to vote is not a “deeply rooted tradition” and would not be recognized without being explicitly stated in the 19th amendment. This “deeply rooted tradition” criterion also ignores the fact that for the first 129 years of our nation’s history, women were denied the right to vote and thus denied any realistic opportunity to create a “deeply rooted tradition” of bodily autonomy and access to contraception and abortion. [2]
The six radical, reactionary justices misrepresented the nation’s actual history and traditions in their opinion overturning Roe v. Wade. As historian Heather Cox Richardson wrote, “Both the Organization of American Historians and the American Historical Association, the flagship organizations of professional historians in the U.S., along with eight other U.S. historical associations (so far), yesterday issued a joint statement expressing dismay that the six Supreme Court justices in the majority in the Dobbs v. Jackson Women’s Health decision that overturned Roe v. Wade ignored the actual history those organizations provided the court and instead ‘adopted a flawed interpretation of abortion criminalization that has been pressed by anti-abortion advocates for more than thirty years.’ Although the decision mentioned ‘history’ 67 times, [the six justices] ignored ‘the long legal tradition, extending from the common law to the mid-1800s (and far longer in some states, including Mississippi) of tolerating termination of pregnancy before occurrence of ‘quickening,’ the time when a woman first felt fetal movement.’ [The historians note] that ‘[t]hese misrepresentations are now enshrined in a text that becomes authoritative for legal reference and citation in the future,’ an undermining of the ‘imperative that historical evidence and argument be presented according to high standards of historical scholarship. The Court’s majority opinion…does not meet those standards.’” [3]
Justice Alito’s opinion overturning Roe v. Wade states that “Roe was egregiously wrong from the start.” But when he was questioned about his views on Roe during his confirmation hearing, he said, “[Roe] is a precedent that has now been on the books for several decades. It has been challenged. It has been reaffirmed. . . . It would be wrong for me to say … I’ve made up my mind [otherwise] on this issue.” Stating that “Roe has been egregiously wrong from the start” certainly sounds like Alito had “made up his mind on the issue” long before his confirmation hearing but failed to disclose this to the Judiciary Committee. [4] Other justices, most notably Kavanagh and Gorsuch, similarly misled Senators during their confirmation hearings.
In the Supreme Court’s June 23, 2022, decision declaring unconstitutional New York State’s over 100-year-old requirements for obtaining a permit to carry a gun in public, the six radical, reactionary justices ignored the fact that from the nation’s founding until 1959, every legal article about the Second Amendment concluded that it did NOT guarantee an individual’s right to own a gun. That and a 100-year-old law seem like a “deeply rooted tradition” to me. It wasn’t until nearly 200 years after the writing of the Constitution, in the 1970s, that legal scholars funded by the gun and ammunition industry, and its front group the NRA, began to claim that the Second Amendment established an individual right to gun ownership. [5] (See this previous post for more detail on how the interpretation of the Second Amendment changed from supporting a well-regulated militia for the security of the state to a “right” for individuals to bear arms for self-defense.)
Similarly, the six radical, reactionary justices’ recent rulings overturning decades-old, affirmed precedents on the separation of church and state ignore roughly 200 years of a “deeply rooted tradition” based on the First Amendment language that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” (See this previous post for more detail on specific rulings.) In their June 27, 2022, decision, which allowed a high school football coach to conduct a prayer on the football field with team members and others, the six deciding justices ignored the historical record – this one specific to the case at hand. The justices accepted the claim by the lawyers for the football coach that he had prayed privately and silently, despite the facts that a lower court judge had written that this was “a deceitful narrative” and that Justice Sotomayor, in her dissent, included a photo showing the coach leading players and students in prayer. [6]
In their ruling on June 30, 2022, declaring that the Environmental Protection Agency (EPA) does not have the authority to regulate carbon emissions from power plants, the six radical, reactionary justices rejected Congress’s grant of this authority to the EPA, an executive branch agency. However, such grants of authority have occurred since the first sessions of Congress in 1789. Therefore, what was fine with the Framers and the Founding Fathers themselves, is not constitutional according to the Court’s reactionary majority today. So “deeply rooted tradition” goes out the window when it does not fit with these six justices’ political and ideological agenda. [7]
In conclusion, it’s impossible to believe the six justices’ claims that they are honestly using “deeply rooted tradition” as the rationale for their decisions, given that, all of a sudden, these six justices know better what the Constitution means and what its writers intended than the many decades, and in some cases two hundred years, of precedents established by numerous judges and legal scholars who have gone before them. The long-standing precedents look much more like deeply rooted traditions than the positions these six justices are taking. They are using “deeply rooted tradition” as a smokescreen for acting on the basis of their personal political and ideological beliefs. They are not acting as impartial judges upholding the laws established by the legislative and executive branches of government, but rather they are legislating from the bench as they see fit.
My next post will provide a bit of an overview of the current state of the Supreme Court with these six radical, reactionary justices in control. I’ll identify some next steps that it would be logical for them to take and also share some thoughts on how to fight back.
[1] See this previous post for an explanation of the appropriateness of calling these six justices radical and reactionary.
[2] Hubbell, R., 5/4/22, ““The hard path forward,” Today’s Edition Newsletter (https://roberthubbell.substack.com/p/the-hard-path-forward)
[3] Cox Richardson, H., 7/6/22, “Letters from an American blog,” (https://heathercoxrichardson.substack.com/p/july-6-2022)
[4] Hubbell, R., 5/5/22, “The law of small numbers,” (https://roberthubbell.substack.com/p/the-law-of-small-numbers)
[5] Cox Richardson, H., 5/24/22, “Letters from an American blog,” (https://heathercoxrichardson.substack.com/p/may-24-2022?s=r)
[6] Conley, J., 6/27/22, “Supreme Court takes ‘wrecking ball’ to separation of church and state with prayer ruling,” Common Dreams (https://www.commondreams.org/news/2022/06/27/supreme-court-takes-wrecking-ball-separation-church-and-state-prayer-ruling)
[7] Hubbell, R., 7/1/22, “We have made it through the worst,” Today’s Edition Newsletter (https://roberthubbell.substack.com/p/we-have-made-it-through-the-worst)
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