The Supreme Court has generated quite a bit of earned media in the past few years.
There was the passing of Justice Samuel Alito, leading Sen. Mitch McConnell to hamstring the court with eight justices as he and the Republican-held Senate refused to approve President Barack Obama’s candidates on the thinnest of pretexts. He successfully held the seat open in the hopes that a Republican would assume office, and his gamble paid off.
That domino knocked over the next: the appointment of three conservative justices during the Trump administration (and the resultant addition of terms like “boof,” “Devil’s triangle” and “squee” into the Congressional record).
And, as of the end of the 2022-2023 term, that six-to-three conservative majority has done what conservative activists have worked for decades to accomplish: the end of federally protected abortions; the gutting of affirmative action; and the ability to discriminate against LGBTQ+ people.
The fact that the court managed to kill a Biden-era program to help 43 million student loan borrowers? That was icing.
Those activists paved the route to our current jurisprudential reality in painstaking fashion.
They picked the plaintiffs — the Asian students at the heart of the affirmative action case were preceded by Abigail Fisher. They picked the path — there are jurisdictions in Texas with a single judge whose decisions can be appealed to the most conservative appellate court in the country and then straight to the Supreme Court. They’ve picked the justices — former President Trump was handed a list of conservative jurists from which to choose and a seat he shouldn’t have been able to fill.
By 2022, this long, patient process bore fruit.
The Dobbs decision came down on June 24, 2022. The end of this Supreme Court sitting gave us the affirmative action decision on June 29 followed by the decisions about student loans and Creative 303 — allowing business owners to deny services to LGBTQ+ people on the basis of their religion — both on June 30.
It has been remarkable, horrific and yet entirely unsurprising to see decades of work expanding rights for people (specifically those who can’t afford to buy them) undone in just more than one year.
There is no reason to think this court will be done any time soon.
After all, these unelected justices, who are bound to no system of ethics but their own, also have lifetime appointments. Several of the conservative justices are relatively young, in judge-adjusted terms. The three newest justices — Amy Coney Barrett, Neil Gorsuch and Brett Kavanaugh — are 51, 55 and 58, respectively.
The potential persistence of the conservative majority leaves a lot on the table, from attempts to gut the administrative state to decisions that relied on the Fifth and 14th Amendment’s substantive due process rights, which Justice Clarence Thomas helpfully listed in his concurring opinion on the abortion case: access to contraception (Griswold), gay marriage (Obergefell) and even a prohibition against outlawing gay sex (Lawrence).
He left one out, but fully accounting for anything — his thinking, ethical boundaries and vacation costs — has apparently never been Thomas’ thing.
I won’t speak to Real Change’s thoughts on these sorts of things in any kind of “royal we.” I can describe my own political project, such as it is. It’s pretty simple. I want everyone in this country to have what I have always had through luck, but as a matter of right.
I want people to have housing and health care. I want people to access the education they want without fear of crushing debt.
Sure, this past year some of my rights have been curtailed and more are threatened, but I believe I’ll be okay. What I want — and what this paper stands for — is for everyone to be okay. The potential that stability and security would unlock from people far better, far more innovative, far more creative than I is hard to imagine. I truly believe we would all be better for it.
It all feels a bit disempowering. Residents of the United States have little recourse when it comes to the supremacy of these judges and their judicial activism.
We don’t, but our elected representatives do. Theories that I’ve heard bandied about by people more knowledgeable than myself involve constraining this court through ethical standards, something floated by Democratic members of Congress. Life terms were meant to make justices unassailable, unaffected by the political winds — that hasn’t exactly worked out, but term-limiting them might. Rotating justices out of a pool of available candidates is a possibility. It would be hard to know which justice to take out to a private club, say, or who needs a spot on your private jet.
Congress could do any of these things, and the country deserves at least the discussion of our options. Because for the first time in a long time, Americans are losing rights faster than they’re gaining them, and traditionally we haven’t been a nation that accepts that without a fight.
Ashley Archibald is the editor of Real Change through July 14, after working as a staff reporter for the newspaper for several years. She will soon be the head of communications for Purpose. Dignity. Action., previously known as Seattle’s Public Defender Association. Real Change is proud to know this talented person.
Read more of the July 12-18, 2023 issue.