The Supreme Court made several landmark decisions over the past couple of weeks that will have wide-ranging applications to both the administration and creation of the law. The court has already shown a desire to reach out for contentious cases even when the dispute has already been resolved. A case limiting the EPA’s ability to regulate CO2 emissions and another over gerrymandering of districts in North Carolina that their state supreme court declared unconstitutional (their state constitution does not allow gerrymandering) demonstrate this. It is the most conservative court in, by some estimations, at least 90 years, but it is also the most active court in what is probably half a century. This court will be making enormous impacts on our lives and laws for many years to come. Many privileges Americans have come to rely upon are under threat either from the invalidation of existing laws or the invalidation of prior Supreme Court rulings. These rights must be protected as best we can through action of the President and, to a much greater extent, Congress. It is not hyperbole to say that the fate of the American experiment is threatened. Only bipartisanship can save it. Before getting into solutions, though, we need to dive into the weeds to talk about the details of recent rulings and what they actually mean.
The case getting the most air time right now is Dobbs vs the Jackson Women’s Health Organization. It is the case that overturned Roe. The result is, in many states, dangerous to women’s health. Women are denied access to abortions when their lives or bodily health are threatened. A 10-year-old girl was denied an abortion; can you imagine the impact giving birth would have on the body of a 10-year-old girl? Other examples abound; a woman denied critical care to save her eye and prevent possible paralysis because it could harm her 8-week-old fetus, an ectopic pregnancy that ruptured because it had to be left untreated, and women with nonviable fetuses being told they must carry the fetus, which will eventually die either in the womb or immediately after birth, to term are just a few. Parts of the US now have more extreme anti-abortion laws than any other country on the planet including Islamic religious autocracies that don’t allow women to leave the house without male supervision.
Perhaps you can say that the court is just leaving the legislative branch to do a job it should have done a long time ago; maybe, after you heard that decision, you thought the court was shrinking its own scope from taking an active role in the creation of laws. Unfortunately, that is simply not the case. The court overturned a New York law requiring citizens who wished to carry a gun outside their home to demonstrate a need to do so. My greatest fear with this one is the potential for overturning red flag laws using the same logic. They also recently eroded the wall between church and state with two separate rulings: Maine is now forced to pay for the tuition of private religious schools if they do so for secular schools and a Washington state football coach was vindicated in his refusal to stop praying on the field at his public school job. The ruling against Maine is particularly pernicious as it could impact states with charter schools.
Their interference in the purview of the other branches of government does not end there. The case in which they limited the EPA’s ability to regulate CO2 emissions in a cohesive way was unique in that the regulation in question was no longer active. Emissions had already dropped below the required levels. Still, the court felt the need to tell the EPA that they had overstepped with that rule. They said that because the EPA had not been given the explicit mandate to regulate those emissions, they were not allowed to do so in the way that they did (which was across multiple powerplants owned by the same company; the specifics are beyond the scope of this piece). The ruling, in effect, says that regulatory agencies may not do things they have not been explicitly told they can do. The EPA had been given the mandate to regulate CO2 in the 2006 update to the Clean Air Act, but that was insufficiently specific for the court. What does it mean? Regulatory agencies such as the EPA, the SEC, the FDA, the FAA, and too many more to list all take some liberty with their creation of rules because Congress does not typically give them specific guidelines. Congress gives them mandates and they create rules that cover those mandates; technology moves far too quickly for the negotiations involved in passing laws and legislators don’t tend to be experts in every given field. The system allows for more flexibility and speed and stability for businesses. To put it simply, the court’s ruling places the viability of our regulatory state at risk. It endangers our citizens and it damages economic dynamism.
The worst may be yet to come. The court just plucked a case out of North Carolina and placed it into the docket for their next session covering gerrymandering. The North Carolina Supreme Court rejected the legislative map as too partisan and therefore not granting citizens equal protection under the law. The ruling was a victory for Democrats in the state. Unfortunately, some in the US Supreme Court have already expressed support for a fringe theory called ‘Independent State Legislature Theory.’ Essentially, it says that the courts, even a state supreme court, have no authority over elections. It says that state legislatures have complete discretion over how they elect their representatives. This could have disastrous implications. This goes back to Donald Trump’s attempt to overthrow the legitimate election in 2020; the theory his crackpot advisors used was that very one. Put simply, it would in effect mean the legislatures of the states could turbocharge gerrymandering to even more preposterous levels, bringing even more polarization to a country sorely in need of a reprieve. Brought to its extreme, it could mean states could deny their popular vote and spend their electoral votes however they wish, which is exactly what Trump was trying to do on January 6th. The primary in New Mexico nearly broke into chaos with a refusal to certify elections in a small county. Justices Thomas, Alito, and Gorsuch have all expressed varying degrees of support for the theory. If I was to place a wager on the rest of the conservatives, I’d say Justice Barrett likely adheres to this viewpoint as well, Kavanaugh is up in the air, and Roberts would be categorically against it. If Kavanaugh and Barrett both fall with Thomas, Alito, and Gorsuch, it would bring the American experiment with democracy as we know it to a close.
Given the lifetime appointments of Supreme Court justices and their enormous influence over American law, it is tempting to throw our hands up in despair. All is not lost, though. These recent rulings do heavily damage our republic, but they also leave room for Congress to act. A precedent for the sort of bipartisanship we need was just set with new legislation on guns. Congressional Democrats must set aside their desires for more comprehensive legislation to find common ground with their more reasonable Republican colleagues. Democrats must bring Republicans something they can sell to their constituents. Maybe they can’t entrench Roe into law, but they can likely find a place that at least protects the health of women and allows more latitude in the cases of underage girls. Climate legislation is becoming more palatable for Republicans as well; the effect it is having on rural areas is bringing them into the fold. There will be more reasonable grounds for other bureaucratic agencies. Most importantly by far, Federal legislation protecting our republic from anti-democratic forces should be achievable with messaging about election integrity even if voter ID laws are not.
If some of this scares you, you are not alone. It is of paramount importance that we protect the vote. Without it, we will no longer have a democracy. We will be subject to the whims of powerful people. The midterm elections this fall could well determine whether or not we will have a legitimate presidential election in 2024. It sounds dramatic, and it may not be highly likely, but every effort must be spent to prevent its mere possibility.