The six radical reactionary Supreme Court justices have clearly demonstrated that they believe there are no constraints on their decision making. To them, the end justifies the means. Through their invented “major questions” doctrine, they have crowned themselves the rulers over all government policies. Through their rulings, they are returning our society to one where some people are better and have more rights than others. Through their acceptance of contrived cases without true plaintiffs (see this previous post for details), they rule over what is acceptable or not in our society.
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Recent decisions by the Supreme Court clearly show that its radical reactionary six-justice majority (Roberts, Alito, Barrett, Gorsuch, Kavanaugh, and Thomas) recognizes no constraints on its decision making. They are making up law, precedents, procedures, and conclusions that fit their white supremacist, evangelical Christian, plutocratic ideology. This is not hyperbole or political bias speaking, it is fact. What worries me the most is their decision-making process, not the substance of their decisions, as horrific as that is. Their perversion of the law, their disregard for facts, their rejection of procedural standards and precedents, and their contorted “logic” clearly have no constraints.
Heather Cox Richardson, an historian, in her June 30th post on her Letters from an American daily blog, writes that in the student loan forgiveness case, Biden v. Nebraska, the six radical reactionary justices based their decision that loan forgiveness was unconstitutional on their “major questions” doctrine. She notes that they invented this new doctrine in 2022 in the West Virginia v. Environmental Protection Agency (EPA) case. In that case, they stripped the EPA of the authority to regulate some kinds of air pollution based on their assertion that Congress cannot delegate “major questions” to executive branch agencies.
This “major questions” doctrine has no basis in law or the Constitution. The Court itself determines whether an issue is a “major question.” Therefore, the Court has basically taken over the legislative branch’s power and authority to delegate implementation of policy to the executive branch. By deeming an issue a “major question,” the Court can and is blocking any policy it doesn’t like, whether it’s regulation of air pollution or forgiving student loans. As Justice Kagan wrote in her dissent to the Biden v. Nebraska decision, “the Court, by deciding this case, exercises authority it does not have. It violates the Constitution.”
Robert Hubbell, a retired lawyer, in his Today’s Edition Newsletter on July 5, 2023, “The walls of liberty,” writes that the “major questions” doctrine is a “judge-made doctrine [that] arrogates to the Court the right to overturn any decision by a federal agency with which the reactionary majority disagrees. The pseudo-rationale for the doctrine is that if Congress intends to delegate discretion to federal agencies on “major questions,” it should use a level of specificity that is to the liking of the Supreme Court. … The doctrine was invented from whole cloth to justify judicial activism in service of an anti-government agenda.”
Richardson also writes that recent Supreme Court decisions, particularly the decision in 303 Creative LLC v. Elenis on the ability of a business to refuse to serve LGBTQ people, “continue to push the United States back to the era before the New Deal” and, indeed, back to the mid-1800s’ and the Civil War’s issues of slavery and Black citizenship and voting. The issues of discrimination and segregation from the Civil Rights Movement of the 1960s are also rekindled by this decision.
She writes that the 303 Creative decision means that the federal government cannot prevent discrimination against LGBTQ people by individuals and their businesses based on the proprietor’s religious beliefs and, moreover, the Court won’t let the states do so either. Richardson writes that this takes the country back to the 1800s when it was acceptable to exclude people from voting based on literacy tests, poll taxes, a criminal conviction, etc. White men were protected from these requirements because they were allowed to vote if their grandfathers had been eligible to vote, so the effect, of course, was to discriminate against Black men.
Richardson writes in her July 3rd post, “as in the 1850s, we are now, once again, facing a rebellion against our founding principle, as a few people seek to reshape America into a nation in which certain people are better than others.” That founding principle of the United States, which is what made it exceptional, was that all people are created equal – although they really only meant all white men – but that was revolutionary at the time.
As Justice Sotomayor wrote in her dissent on the 303 Creative case, for “the first time in history” the Court has given “a business open to the public a constitutional right to refuse to serve members of a protected class.” This is reminiscent, of course, of the Woolworth lunch counter’s exclusion of Blacks, which was a seminal moment in the 1960s Civil Rights Movement. Segregation was and is defended as based on deeply held religious beliefs just as is the discrimination against LGBTQ people allowed by the 303 Creative case decision.
The six radical reactionary Supreme Court justices have clearly demonstrated that they are unconstrained by precedents of any kind. They are not in any way conservative. Democracy, the separation of powers, the rule of law, and the Constitution apparently mean nothing to them. To them the end justifies the means. Their decisions are truly radical.
They are reactionary in that they are reversing the trajectory of U.S. history which has continually extended rights and equality to broader groups of people, e.g., Black men, women, and LGBTQ individuals. This trajectory has moved the United States toward its founding principle that all people are created equal. For the first time in the country’s history, the Supreme Court and its six reactionary justices are taking away people’s rights and equality, rather than expanding them. To these six justices, discrimination and inequality are not issues that the government should do anything about.
They apparently will let nothing stand in their way of creating a society based on evangelical Christian religious tenets, where wealthy white men control the government and society.
P.S. There are two new scandals involving Justice Thomas. First, in 2019, an aide to Justice Thomas received cash, apparently for Thomas’s Christmas Party, from at least seven lawyers who have had cases before Thomas and the Supreme Court. The names of seven lawyers are known although the amounts of money are not. [1] Second, shortly after Thomas’s confirmation to the Supreme Court in 1991, he was accepted into the Horatio Alger Association of Distinguished Americans, a group made up primarily of extraordinarily wealthy, conservative, male, businessmen. Thomas is an honorary Board Member of the non-profit organization with a roughly $20 million annual budget, $300 million in assets, and a 21-person staff. He provides it unusual access to the Supreme Court’s actual courtroom, where he hosts its annual awards ceremony. Leaders of the organization are major donors to conservative causes with broad interests in Supreme Court decisions, even if they are not actual parties in specific cases. Thomas has received personal hospitality and other undisclosed benefits from some of them. [2]
[1] Stancil, K., 7/12/23, “‘Corruption’: Thomas aide accepted money from lawyers who have had cases before the Supreme Court,” Common Dreams (https://www.commondreams.org/news/clarence-thomas-aid-venmo)
[2] Johnson, J., 7/10/23, “‘Clarence Thomas needs to resign’: Report shines more light on Justice’s gifts from the rich,” Common Dreams (https://www.commondreams.org/news/clarence-thomas-gifts)
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