In the space of a few days, the conservative majority Supreme Court has taken a giant step forward in achieving the conservative and evangelical dream of erasing the social and legal progress of the last 50 years in America. They overruled Roe v. Wade, the landmark 1973 Supreme Court decision which legalized abortion in this country. They eviscerated the power of the EPA to combat climate change by regulating greenhouse gas emissions, and the power of other regulatory agencies, including the FTC, the SEC and the FCC by withdrawing their authority to take any action which could be considered to involve major economic or political significance without the express approval of Congress. In two cases, they poked more holes in the church-state barrier by, in one case, supporting the right of a high school football coach to publicly exercise his faith on the field after a game; and in the other, supporting the right of religious schools to receive public education funds when private (non-religious) schools receive them. Finally, they overruled a 100 year old New York law limiting the right to carry concealed weapons.

Let us be absolutely clear about the motivation and impact of these decisions. With the exception of the decision overruling Roe v. Wade which was a 5-4 decision with Chief Justice Roberts voting against, all of these decisions were completely along party lines with the 6 conservative Republican appointees voting in favor and all 3 Democratic appointees voting against. They were not decisions clearly supported by existing precedent, nor were they decisions clearly dictated by the facts of the case. In the case of Dobbs v. Jackson, dealing with abortion, it was not necessary to overrule Roe v. Wade to decide the case favorably for the pro lifers; all the Court had to do was uphold the Mississippi law that banned abortion after 15 weeks. Furthermore, none of these decisions constitute good public policy, nor would they be supported by a majority of Americans. What they were obviously was political decisions hewing carefully to current conservative Republican ideology despite what these justices said at their Senate confirmation hearings. They demonstrate a Supreme Court majority throwing aside their professional and legal duty to decide cases on the facts and the law in favor of pursuing a political ideology.

Leaving aside the abortion, gun control and separation of church and state issues for the moment, let’s look at the more esoteric issue of the power of the administrative agencies like the EPA, FTC and SEC. All of these agencies were set up by Congress to regulate specific areas of the economy and to be largely independent of the executive branch. Their regulatory authority granted by Congress generally included the right to issue binding regulations (after public review and comment) and the power to take enforcement action for violations. The general background and motivation for their establishment was the realization by Congress that it did not have the time, nor the expertise to continually regulate large sectors of the economy. So the Congress itself, over many decades starting in 1887 with the establishment of the Interstate Commerce Commission (ICC) to regulate railroads, set up these various administrative agencies (and there are several more) to take over a regulatory function which the Congress felt itself ill equipped to perform. Now the conservative majority Supreme Court, disregarding decades of practice in this country, has taken on itself to undo a major aspect of what Congress itself set up over decades. It has told the administrative agencies, you can do the minor things within your statutory purview, but any major issue has to go back to Congress for approval. This is, of course, not what Congress had in mind when it set up these agencies, because if it were, Congress would have said so in the enabling legislation.

Now, in a perfect world, where Congress functioned rationally, effectively and on a timely basis, this might work. But as the rest of the country well and unfortunately knows, but the Supreme Court apparently either doesn’t or doesn’t care, the Congress of the United States is a completely disfunctional body and has been so for at least the last 20 years. They are not going to deal with major issues of regulatory authority that are referred to them. They didn’t want these issues in the first place and that’s why they set up the administrative agencies. So the Supreme Court has thrown a huge monkey wrench into the functioning of the federal government. But, surprise, surprise, that has been a major goal of the conservative movement for 30-40 years. They don’t want a well- functioning federal government, they want a small, ineffective federal government with a very large defense department. Again, the conservative Supreme Court majority is happy to assist the conservative movement to realize its dreams regardless of the facts or the law or the public good.

Turning to the Dobbs v. Jackson case which overruled Roe v. Wade, the majority opinion of the Court asserts as a major basis of its ruling, that there never had been a right to have an abortion in this country until Roe as there had been state statutes in many states for many decades prohibiting abortion. This majority opinion completely (and probably intentionally) overlooks the fact that in the 18th Century in America, abortion was completely legal up until the time of “quickening” (fetal movement) at about 4 1/2 months. (This is according to Univ. of Chicago Law Prof. Geoffrey R. Stone who was the law clerk to Supreme Court Justice Brennan at the time of Roe v. Wade’s decision.) This means that this was the case at the time of the adoption of the Constitution. Under the “originalist” interpretation of the Constitution which is supposedly practiced by the conservative majority of today’s court, this was undoubtedly the understanding of both the drafters and the adopting voters of the Constitution, and should be the leading guide to interpreting the Constitution.

Abortion did not become illegal in this country until after the Second Great Awakening (religious revival) in the first half of the 19th century when religious leaders decided that life began at conception and that taking any life was contrary to God’s commandments. Hence criminalizing abortion was a recent, religiously driven public policy decision. According to studies, abortion has been practiced since ancient times. In ancient Greece and Rome, if there was any punishment for abortion, it was only because the husband complained that it violated his rights. There is no express statement about abortion in either the Old or New Testament of the Bible. Today, abortion is prohibited altogether in only 24 countries. 73 countries basically allow it on demand with varying gestational limits. Access to safe abortion has been recognized as a human right by numerous international authorities.

In the New York gun law case, the conservative majority used exactly opposite reasoning than in the abortion case. The New York law had been in effect for over a century as a reasonable and normally contitutionally protected means of protecting public safety by limiting people’s ability to carry concealed weapons. In the Dobbs case overruling the right to abortion, the conservative majority, (overlooking 18th century and before history) used the absence of a long history of permissible abortion as a grounds for denying its right. In the gun law case, the conservative majority found that the long history of gun control, including the 100+ year history of New York’s law, could not limit the (recently discovered) public’s right to bear arms for self-protection supposedly created by the Second Amendment (if you completely disregard the “importance of a well-regulated Militia” language which preceded the right to bear arms language. In other words, this conservative Supreme Court majority will bend and twist the Constitution and its reasoning, however necessary, to reach its desired political conclusion.

Elections have consequences, and Democrats, Independents and moderate Republicans had better start paying strict attention to that, or more extreme measures may be necessary! Your hard fought social and legal advances of the past 50 or even 100 or more years may be in serious jeopardy!!

THT