A Report Card on SCOTUS: Part One

By Thomas Coffin

Given the decisions handed down during Supreme Court term which just concluded, many observers, myself included, predict that the supermajority conservative Justices are on a mission to take the nation back to the 18th century era via the judicial philosophy of originality, i.e., interpreting the Constitution through the lens of its white, patriarchal framers. I additionally must conclude that this version of originality contains a hefty dosage of manufactured fiction, selective editing, and blatant contradictions in the application of that judicial philosophy.

Let me begin with Dobbs v Jackson Women’s Health Organization, the case wherein the Court overturned Roe v Wade in a 6-3 ruling handed down by its conservative bloc of Republican Justices (their partisanship is the subject of boasts by their Party and is hardly debatable.) The Dobbs majority opinion was authored by Justice Alito, who sarcastically rejected the proposition that women had any recognizable rights in the autonomy or privacy of their bodies. As he put it: “Zero, Zilch, None”. His insulting tone had none of the grace or dignity one expects from a Supreme Court Justice, but is instead reflective of the sort of dismissive misogyny that banned women from even voting until they overcame that blatant discrimination with the 19th Amendment in 1920.

Alito and his concurring colleagues based their ruling on the absence of any express recognition of women’s rights in the Constitution or in our Nation’s tradition and history—in other words, on a history and writings created by white males who considered women as inferior and not in the category of “We the People” mentioned in the Constitution. In that regard, women were deprived of the rights and privileges granted within that document, which we now recognize as grievous discrimination.

To state the obvious, this philosophy of originalism must not be the guiding force in the 21^st century. Did the nation really require Constitutional amendments to recognize that women and African-Americans are equal to white males under our government? And what sense does it make to hitch our judicial rulings to a yesteryear wagon full of such misogyny, racism, patriarchy, and white supremacy?

The Dobbs decision is very comparable to the Dred Scott ruling by the Supreme Court, in which then-Chief Justice Roger Taney infamously referenced Black people as “beings of an inferior order…and so inferior that they had no rights which the white man was bound to respect…”

We must not be guided by the ghosts of those who held such invidious viewpoints, much less be bound by them in the present age. Our Nation has surely evolved too far from that period of ignorance and prejudice to return to such a hateful model of governance.

It is also critical to understand that Justice Alito’s reliance in his Dobbs ruling on the lack of express reference to a woman’s right to bodily autonomy in the Constitution was markedly different from prior cases in which he had ignored that supposed necessity entirely in other contexts.

In Citizens United v FEC, Justice Alito concurred in the decision that corporations have a right under the First Amendment freedom of speech clause to political speech by contributing to politicians’ campaign funds. The Constitution nowhere expressly recognizes any such right for corporate entities, but Citizens United found such a right implicitly in the First Amendment.

And in Hobby Lobby, Justice Alito wrote the majority decision finding that a corporate entity was entitled to a religious exemption from providing health insurance covering contraception even though corporations are not expressly mentioned in the free exercise of religion clause of the First Amendment.

The point in citing these cases is to demonstrate that the Court’s insistence on such express grants of rights is an arbitrary and, frankly, hypocritical rationale. The gender of the “people” asserting constitutional rights is of no relevance whatsoever and such a distinction is itself evidence of biased based reasoning.

Surely all people have a liberty interest in their bodies that are sufficiently articulated in the Fifth and Fourteenth Amendments. And those celebrating the Dobbs decision would do well to ponder the implications of the bargain they have forged among right wing politicians and Christian nationalists to produce a Supreme Court composition willing to deprive women of any cognizable rights in their own bodies, empowering the states to exercise dominion over their bodies even against their will. Make no mistake— this ruling opens the door to other discriminatory gender-based policies against them, including criminalizing use of contraceptives and, conceptually, even compulsory abortions and sterilizations by the states.

China, for example, for years had a one-child policy and mandated abortions to enforce that policy. North Korea used forced abortions and even infanticide as a penal sanction. Even the UK, as recently as 2019, issued a Court ruling mandating the abortion of a fetus being carried by an allegedly mentally ill woman (the woman suffered from a moderate mood disorder and had a learning disability.)

As we move ever closer to an authoritarian government (and I have warned accurately for years that the country is on that course), the denial of such personal human rights greatly increases the risks of enactment of such measures. For those who scoff at this possibility, research the promulgation of the Great Replacement Theory, which posits a conspiracy to replace the white race with people of color. Also understand that in our own history many of the states (32 to be exact) were practicing forced sterilizations in the mid-20th Century as a means of controlling “undesirable populations”, defined as immigrants, people of color, poor people, unmarried mothers, the disabled, mentally ill, Native Americans, etc. (See: Unwanted Sterilization And Eugenics Programs in the United States.) An authoritarian government may again turn to such measures and coerced abortions to limit the number of children by non-whites and others deemed “undesirable”. In the absence of a democracy or a Constitution which incorporates basic rights for the people, there will be no barriers against such tyranny. Totalitarian governments do not ask permission nor allow opposition to their decrees. If the bodies of women are subject to the control of the State, it is no exaggeration to compare that situation to the practices of slavery where Blacks had no rights in their bodies, their family associations, liberty, or even life itself. They were literally deemed property of their white owners and by extension the states which systemically denied them those basic human rights.

Yet another blow to democracy and personal rights was delivered in the New York State Rifle & Pistol Association case striking New York’s regulatory system over firearms. This case, along with another decision, Kennedy v. Bremerton School District, highlight the manufactured fiction techniques employed by the Court to justify partisan rulings that otherwise flunk its “originalist” judicial philosophy.

The New York gun case illustrates a falsehood about the Second Amendment I have elucidated on in prior articles (See: e.g., Does the Constitution Protect Guns more than People and How the NRA and the Arms Industry Changed Second Amendment Jurisprudence to Make America a Killing Zone). The falsehood is that the Second Amendment confers a Constitutional right for private ownership of firearms. The literal language of the Amendment and the manner in which it was interpreted for over 200 years was that possession of firearms was tethered to a well-regulated militia and the state was empowered to reasonably regulate the possession of firearms. Rather than seeking to formally proceed to amend that language, the NRA embarked on a campaign of seminars and propaganda to erase the well-regulated militia component and create the narrative that the Second Amendment actually created a private right to possess firearms or, as the term used in the Amendment reflected, a “Right to Bear Arms”. As a noted historian, Garry Wills, has pointed out, however, to “Bear Arms” is itself a military term, connected to a host of Regimental accouterments such as insignias, flags, colors, etc. As Wills put it, one does not “bear arms” against a rabbit.

Be that as it may, the narrative strategy provided the cover story, and Justice Scalia along with four of his like-minded colleagues in 2008 issued a decision in Heller v District of Columbia that a homeowner had a personal right to possess a handgun in his own home for self-defense and struck a D.C. law to the contrary as a result.

The New York Rifle case carried the newly contrived narrative a step further by ruling that the private right to tote guns applied outside the home as well, exalting the transformed Second Amendment above the rights of the public at large to go to school, assemble, travel, attend churches, temples, and mosques, march in parades, peacefully gather to recreate, protest, and petition the seats of government, and literally go anywhere. The fear factor is omnipresent, and intended to stifle any opposition to a very authoritarian model of governance, at odds existentially with the principles of democracy. I am not exaggerating in the slightest. No one gathers today like they used to in pre-mass shootings eras without thinking about the dangers presented by a heavily armed populace which inevitably includes those bent on violence.

Kennedy v Bremerton is perhaps even more of a result that was built on fiction. In his version of the facts of that case, Justice Gorsuch painted the portrait of a public high school football coach who had a practice of praying privately and silently to God without involving his players in the practice. The facts were demonstrably to the contrary. The players were most definitely participants in the prayer ritual and the Court’s ruling was essentially based on a false narrative.

Of course, all this reflects a pattern wherein the supermajority on the Court is locked into delivering on an agenda that accomplishes what a very powerful minority bloc of arch-conservatives, religious groups, and wealthy corporate interests demand. So much for “We the People” as being the priority.

Perhaps the exclamation point and crowning blow from this term was West Virginia v EPA, gutting the Environmental Protection Agency’s ability to regulate carbon emissions from power plants.

The planet is dying because of climate change, and yet the Court has crippled the effort to save our very lives which are utterly dependent on a habitable atmosphere. As with the trafficking in military grade weaponry used in weekly mass shootings, the conservative bloc favors industry profits over the lives of people. A livable planet is a basic human right, and our government should join other Nations in declaring such and acting in all speed to enact measures to maintain that basic right. Instead, this woeful and myopic decision does the opposite.

That’s a sobering and accurate summary of what befell us at the hands of these undeniably partisan supermajority justices this time. One shudders at what else is coming.

My apologies for this dismal report card. In my next article, I hope to offer some hope and ideas for climbing out of this hole we have fallen into. Until then, keep the light shining.

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Thomas Coffin was the keynote speaker at the Blackberry Pie Society’s Political Party in February, 2020.

He is a retired federal magistrate judge for the U.S. District Court for the District of Oregon and a former professor at the UO Law School.
Thomas retired in 2016 after 24 years on the bench, prior to which he had a career as a federal prosecutor spanning 21 years. He is married with 7 children.
The Blackberry Pie Society is pleased to include a collection of his essays on our website. We will post them as they become available.

Posted 7.20.2022