SCOTUS Rules Without US
The leaked Supreme Court opinion of Dobbs v. Jackson Women’s Health Organization last May sparked an increased awareness of the Court and the legislative power it holds but has since dissolved into the same general ignorance of the judicial branch evident before. With a jammed Congressional body such as the one we have now, the weight of each decision SCOTUS makes is significantly higher, as drafting a bill becomes near impossible for contested issues like religious expression, free speech, gun ownership, and environmental regulations. The overtly conservative Court has proven to be as dangerous as previously theorized when it comes to their recent rulings. There are several key cases you may have missed, and an upcoming case which could considerably change the future of elections.
In Jones v. Mississippi, the conservative bloc on the Court ruled in favor of the state deeming that juveniles do not need to be deemed incorrigible, or beyond hope of rehabilitation, to be given a life sentence. In Carson v. Makin, the court ruled that a Maine program excluding religious schools from a state tuition program violated the free exercise clause of the First Amendment. This decision opposes the precedents established by previous Courts that rule according to the establishment clause rather than the free exercise clause. This decision along with a few others are opening the door for future rulings regarding the relationship of governing and faith to be adjudicated according to a claim of religious expression rather than the political principle instituted by the Founding Fathers of a separation of church and state. In West Virginia v. EPA, the Court decided to reduce the agency’s ability to regulate emissions, as it limits its power to control carbon emissions at individual power plants. The Court determined that the EPA does not have the right to operate under the Clean Power Plan rule they drafted in 2015, which aimed to cut carbon dioxide emissions by 32% before the year 2030.
The Supreme Court’s power is often overlooked and understated in current political discussions, and the past few years of rulings are setting new precedents completely overhauling previous years of living constitutionalist philosophy defining the Court. Living constitutionalists view the Constitution as a living document that should be interpreted according to cultural shifts, and should be understood along the current state of society. Trump’s appointments of Amy Coney Barrett, Brett Kavanaugh, and Neil Gorsuch created a 6-3 conservative majority on the increasingly partisan judicial body, and these judges are influenced by a doctrine known as “originalism,” which restricts the Constitution to its originally intended meaning according to the ancient ideology of the Founding Fathers.
Most of these recent rulings have been justified under the originalist principle and will hold large bearing over future cases and proposed legislation for years to come. Although many believe otherwise, the Court has never been truly bipartisan, as career politicians have served on the Court prior to and following their elections to Congress and other federal seats. The problem with the Court stems from a much simpler source: its configuration.
Justices are appointed by the sitting President and must be approved by a simple majority in the Senate after undergoing a series of hearings. This threshold used to be 60 votes to promote bipartisan solidarity for a justice, but former President Trump overhauled this procedural rule to avoid a filibuster during his nominations. None of his appointees received more than 54 votes compared to the 87 votes received by liberal justice Stephen Breyer, signaling the loss of a collective opinion regarding those serving on the Supreme Court. The more blatant issue comes in a further basic component, as a President who did not win the popular vote was given the power to structure a third of the nation’s highest judicial body. Furthermore, these completely undemocratically appointed judges will serve life terms, allowing for unpopular beliefs held by an ideological minority to be enacted through court legislation today, and in the many years to follow. The current makeup of the court has and will continue to support conservative viewpoints, and the three justices in the liberal bloc are completely helpless to act against it.
An interesting note regarding each of the conservative justices currently serving on the Court is their tie to a law organization known as the Federalist Society. Its origins can be traced to a group of Harvard, Yale, and University of Chicago Law students who wanted a place where their unpopular conservative viewpoints could be given a chance to oppose that of the more commonly held liberal ideology among their peers. Its influence can be tracked as far back as George Bush’s presidency, where an overwhelming amount of his appellate court nominees were members of the organization. The head of the institution is Leonard Leo, a Catholic originalist and textualist (interprets the Constitution adhering only to the words themselves) who provided President Trump with a list of prospective SCOTUS judges.
But how did these Federalist Society justices make their way up the judicial branch to the most prestigious Court in the country? Well, with a little backing from Charlie Koch and anonymous donors, anything is possible. Charlie is the CEO of Koch industries making him one of the richest men in the world, and who, like most other CEOs, is willing to do whatever it takes to increase the number in his bank account. Through Koch’s political group, Americans for Prosperity, he was able to support Kavanaugh through mailing, phone calls, and flyers. The group also pushed hard for Barrett, whose father worked for Shell and other organizations within the oil industry, as well as Gorsuch, whose mother presided over the EPA during Ronald Reagan’s presidency. Koch has supported Leo and the Federalist Society through his foundation.
Leonard Leo has spoken vehemently in favor of money’s role in shaping the federal judiciary, but if these “apolitical” justices have ties to those who got them into their seat, is it that hard to believe that the Supreme Court has become hollowed out in the same way Congress has by lobbying? In fact, many people who have tracked Leo’s career have said that one of his primary goals was to create a Court that would overturn Roe v. Wade, and to say that is all he accomplished would be a massive understatement.
The Federalist Society has essentially developed a lobbying system for the judicial branch, and the current makeup of the Court is likely to lead to reversals of decade old precedents set by earlier Courts, but there is one upcoming case that is particularly alarming. Moore v. Harper is set to enter discussions this term and will determine the constitutional validity of procedural protections against gerrymandering. The North Carolina Supreme Court has overturned a congressional map adopted by the state Legislature, as they concluded it stemmed from partisan gerrymandering, and that it violated the state Constitution guaranteeing equal voting power, legislative representation, and the right to free elections.
In 2019, the case Rucho v. Common Cause made its way to the Supreme Court, where the judges ruled 5-4 in an opinion stating that partisan gerrymandering is not a violation of the US Constitution, as it poses a question “beyond the reach of federal courts.” The Supreme Court will be determining whether the NC Supreme Court violated the elections clause, which provides that the organization of elections for senators and representatives is a power given to the state legislature. This interpretation, known as independent state legislative theory, fits right into the originalist viewpoint that makes up most of the Court, and previous rulings signal to a decision being made in favor of the gerrymandered map.
If the Court does in fact rule in favor of the state legislature, then the precedent supporting independent state legislative theory will be cemented into US Law. State legislatures will then have the sole and absolute power to regulate federal elections within their states, without any interference from state courts, constitutions, or ballot initiatives. After the 2020 election, many conservatives attempted to use this philosophy to justify overturning the results of the election. This ruling could open the door for more blatant gerrymandering in electoral maps and voter suppression laws, while also relieving the system of much needed checks and balances. The current Supreme Court will cement this era of American law and politics as a regressive one and could possibly be the end of any notion of a bipartisan judiciary.