In 10 days, the Supreme Court took us back 10 decades | The incision | Detroit

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The Supreme Court is the odd duck of the US government. Judges are not elected. There are no limits to their appointments. And once appointed, they are almost entirely shielded from the political process. Nine unelected jurists appointed for life can make binding and fundamental interpretations of the US Constitution.

In fact, the legitimacy of the Court rests on… well, its legitimacy. He can’t actually enforce his decisions, after all. Instead, judges must show us their reasoning, show us that they are above petty partisan politics. Consistent legal reasoning – applying the same approach to each case – is meant to demonstrate over time that these are not black-robed politicians – that they are lawyers. It is the placing of the judicial process above its results that is supposed to earn our trust.

But what happens when judges betray that trust? What happens when their logic is so clearly subject to their ideologically preferred outcomes?

We are about to find out.

Consider the Court’s decision in Dobbs v. Jackson Women’s Health Organization, the case that broke the principle of stare decisis and overturned the Court’s precedent to strike down the right to abortion. Justice Samuel Alito, writing on behalf of the majority, said: “It is time to uphold the Constitution and return the issue of abortion to the elected representatives of the people. Alito argues that this is simply not a matter for the federal courts to decide, it is a matter for the states and their elected representatives. Using a rhetorical sleight of hand, he suggests that the federal government has been usurping rights since Roe vs. Wade – and that he is now “returning” rights… and depriving millions of women of theirs. He uses the Garb of Liberty to choke her by the throat.

But what about the fundamental argument, about the usurpation of states’ rights? That might be believable, except literally the day before, the court struck down a century-old New York state law requiring handgun buyers to demonstrate their need for a firearm. So states have to decide whether or not a resident can get an abortion — but not a fucking gun?

The guideline in all of this is a legal theory that tries to give credence to it all.

“Originalism” attempts to read the Constitution at the time it was written. She makes historical fig leaves for jurists who seek to justify their ends by allowing them to dig into history. Apparently reading an original demonstrates that gun rights were understood as individual rights at the time the Constitution was ratified – but we can easily overlook the fact that guns were considered muskets, and not like high volume semi-automatic assault rifles. There is also a broader implication. At the time the Constitution was written, women were considered the property of men and blacks were the property of whites. By harnessing us to this past, the originalists condemn our future.

To appreciate the absurdity of originalism, consider the Court’s decision in West Virginia v. Environmental Protection Agency. The conservative majority has ruled en bloc that the EPA does not have the authority to write sweeping rules that regulate power plants. While private property, commercial interests and public welfare are as old as time, history has increased their scale and stakes. The Court’s logic was that, in effect, the EPA had usurped the power of Congress to make laws – and that if Congress wanted to make rules to limit greenhouse gas emissions, it had to pass those laws. himself. But carbon emissions are incredibly complex. The same goes for food and drug regulations, workplace safety specifications, and wildlife preservation — all things left to federal agencies to regulate in a world that is fundamentally more complex than it currently is. was in 1788. Congress lacks the expertise or the time to regulate them all directly. So asking Congress to regulate all of these things itself is just a back door way to deregulate them, because that’s functionally what would happen.

And that’s exactly the point – something Charles Koch has been working on for decades, at least. The arch-conservative billionaire is a cog in a much larger system that is trying to twist the court in that direction. This is all part of a much larger and longer play in which the Court is one of many critical pieces. And he didn’t even execute his most important bid. Next session, the Court will hear arguments in a case that could upset the very foundations of our democracy.

Moore v. Harper involves a decision by the North Carolina Supreme Court that overturned the extremely partisan gerrymander of their state legislature. Now, Republican state lawmakers are asking the U.S. Supreme Court to reconsider the case. They argue that it would be unconstitutional for state courts — or even state constitutions — to oversee federal elections, which the U.S. Constitution specifically assigns to state legislatures to determine “times, places, and manners.” In short, they argue that these legislatures supersede their own constitution or court system.

If the Supreme Court rules for lawmakers, it would give carte blanche to extreme gerrymanders across the country, further eroding our electoral system. Worse, because the US Constitution also gives state legislators the task of determining “how” a state’s voters are assigned in presidential elections, it also opens the door to electoral subversion.

Ironically, to govern this way, so-called originalists will have to conveniently ignore the clear evidence that the framers of the Constitution understood that states had the power to bind their legislatures through their own state constitutions. But the same goes for this Court.

While the full consequences of the Court’s hypocrisy will not be known for some time, their indelible imprint has already left on the lives of Americans. Across the country right now, women are already looking for alternatives to a health care procedure that was safe and legal two weeks ago. Some will travel thousands of miles. Others will pursue black market options that could kill them. Many will find no alternatives at all. It is pitiful to think that it was the ends that justified the means for which six judges soiled their own robes – and our constitution.

Originally published July 5 in The Incision. Get more at

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