From abortion to guns: ‘Extremist’ Supreme Court ends its term with a streak of devastating rulings

The new conservative majority lands an unprecedented blow to civil liberties, according to analysts

Alex Woodward
New York
Saturday 02 July 2022 00:26 BST
Biden condemns 'extremist' Supreme Court after Roe v Wade overturned

The US Supreme Court’s new conservative majority, within one week, revoked a constitutional right to an abortion, delivered a devastating blow to government efforts to combat the climate crisis, strengthened Second Amendment protections, and ruled in two cases that the court’s liberal justices warned have blown up the firewall between church and state.

Donald Trump’s three appointments – Amy Coney Barrett, Brett Kavanaugh and Neil Gorsuch – join conservative justices Samuel Alito and Clarence Thomas, along with Chief Justice John Roberts, moving the Supreme Court significantly further to the right, and, as Justice Sonia Sotomayor wrote, wielding that power by substituting “a rule by judges for the rule of law”.

In their joint dissent in a landmark case that overturned a half-century of abortion rights, the court’s three liberal justices said the conservatives only voted against precedential cases “for one and only one reason: because it has always despised them, and now it has the votes to discard them”.

President Joe Biden has derided what he calls an “extremist” court that is “committed to moving America backward, with fewer rights and less autonomy”.

In the wake of the ruling in Dobbs v Jackson Women’s Health Organization, which overturned precedent in Roe v Wade and Planned Parenthood v Casey, abortion rights advocates, providers and civil rights groups took legal action in at least 11 states to block “trigger” laws and anti-abortion statutes designed to take effect without Roe.

Nancy Northrup, president and CEO of the Center for Reproductive Rights, which argued the Dobbs case at the Supreme Court, told reporters on 1 July that abortion rights advocates have been preparing for this moment, “the beginning of what is a public health emergency”.

State courts have granted temporary restraining orders to block such laws in five states – Florida, Kentucky, Louisiana, Texas and Utah – as their legal challenges play out in courts.

At least eight states – Alabama, Arkansas, Missouri, Ohio, Oklahoma, South Carolina, South Dakota and Tennessee – have outlawed abortion entirely in nearly all instances or severely restricted access, and more legal challenges are expected as more laws take effect. As many as 26 states could outlaw abortion without Roe, with states legislatures poised to draft more-restrictive laws unbridled from constitutional obligations to protect access to care.

On 30 June, not even one week after the Roe ruling. Planned Parenthood providers in Montana – a state that has not outlawed abortions – announced they would no longer offer medication abortion to patients from Arkansas, Missouri, Oklahoma and South Dakota, and will require proof of residency for the treatment, following widespread confusion over a “rapidly changing” legal landscape that could now open providers to criminal prosecution.

“We just have to be understanding that what we’re facing here is a public health crisis where people are operating under a condition of extraordinary chaos,” Planned Parenthood’s senior litigation director Jennifer Sandman said on 1 July.

The court decided 58 cases this term, marking an increase over the last two years during the Covid-19 pandemic, but still the third-lowest number of cases in more than 80 years.

From those cases, 19 were decided by a vote of 6 to 3, along the court’s growing ideological divide.

“Broadly, what the Supreme Court has done within the last few weeks is very concerning and a rollback of civil rights and civil liberties,” according to Arthur Ago, Criminal Justice Project director with the Lawyers’ Committee for Civil Rights Under Law.

“What the Supreme Court has done is signaled a substantially conservative term,” he told The Independent, pointing to expanding Second Amendment protections and shielding law enforcement officers from liability.

In some cases, the court’s opinions could invite further legal challenges that could dismantle 14th Amendment protections – from marriage equality to gay sex – and erode state-level laws to combat the proliferation of guns, or dismantle the federal government’s administrative role.

Justice Thomas, in his concurring opinion in the Dobbs case, suggested the court has a “duty to ‘correct the error’ established” in precedents from cases involving same-sex marriages, gay sex, and contraception.

University of Southern California law professor Lee Epstein, who directs the Supreme Court Database, told The New York Times that the court – which the chief justice has sought to steer towards an incremental “middle ground” – has instead “morphed into the divided, partisan, maximalist, activist” court that he opposed for nearly two decades.

“At least for now he’s lost the fight,” she said.

In the Dobbs case, for example, Justice Roberts could not convince a single conservative justice – after seven months of deliberations – against overturning 50-year-old precedent. The chief justice ended up ruling only to let Mississippi’s anti-abortion law at the centre of the case stand, while the five conservatives struck down Roe and Casey entirely.

“This was clearly a rough term, but here is the capstone piece of evidence of just how little this is still the Roberts court,” University of Texas law professor Stephen Vladeck told Politico. “This is a court that is fighting with each other past the chief. The bitterness, the intensity, the hostility is a reflection of the chief’s powerlessness because he can’t control either block.”

In the case of New York State Rifle & Pistol Association Inc v Bruen, the court – on a 6-3 vote – struck down a century-old New York law requiring handgun owners to show “proper cause” in order to obtain a license to carry a concealed weapon, dealing a blow to state-level efforts to combat the proliferation of firearms and potentially expanding the scope of Second Amendment protections.

The decision could invite legal challenges in at least six other states with similar laws, opening them to scrutiny, and potentially expanding how, and where, guns can be carried in public.

“By permitting widespread availability, that violence is only going to increase,” Mr Ago said.

With the decision in Vega v Tekoh, the court determined that people who are not warned about their right to remain silent cannot sue a police officer for damages under federal civil rights law, even if that evidence was used against them in their criminal trial.

Jon M Greenbaum, chief counsel for the Lawyers’ Committee for Civil Rights Under Law, said the ruling strictly limits the ways in which police can be held accountable.

“Taken together with the failure of Congress to pass the Justice in Policing Act, this case has diminished the ability of people to confront police misconduct even further,” he said.

A decision in West Virginia v Environmental Protection Agency, issued on the final day for this term, curbs the agency’s ability to regulate carbon emissions from power plants and, ominously, endorses a legal theory in the “major questions doctrine” that would prohibit federal agencies from a bulk of their authority without explicit direction from Congress.

Jason Rylander, senior attorney for the non-profit Center for Biological Diversity, told The Independent that the doctrine “has the potential to turn federal environmental, health and safety law on its head, forcing Congress to inject itself into the details of standard-setting which, traditionally, it has left to expert agencies.”

Two cases involving religion and schools – Carson v Makin andKennedy v Bremerton School District – drew uncompromising dissent from Justice Sotomayor, who joined Stephen Breyer and Elena Kagan in the latter case to warn that the majority “sets us further down a perilous path in forcing states to entangle themselves with religion, with all of our rights hanging in the balance.”

In this term, the court also revived two Republican-drawn congressional maps that lower courts struck down over likely violations of the Voting Rights Act, sending a warning to voting rights groups tracking the nation’s antidemocratic plunge.

This fall, the court will consider a North Carolina case that could disrupt election laws across the country – with a ruling likely just in time for 2024 elections – with the potential endorsement of a fringe legal theory, debunked by legal analysts, that grants state legislatures broad authority over deciding elections and could curb legal efforts to block racial gerrymandering.

Michael Waldman, president of the Brennan Center for Justice at NYU School of Law, told reporters on 30 June that legitimising the theory “would cut that off at the knees.”

“This would stop states from enforcing voting rights and enforcing prohibitions and partisan and other kinds of gerrymandering at the very moment when that kind of protection is more needed than ever,” he said. “The stakes are quite high.”

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