A Report Card on SCOTUS: Part Two

By Thomas Coffin

Having assessed the foreboding rulings by the supermajority conservative bloc on major cases this last term, and being very realistic about where this bloc is coming from in its judicial philosophy, contempt for precedent, and quite obvious agenda to implement a de facto authoritarian regime on the people rather than the democracy with the guaranteed rights we took for granted, I wish to share some thoughts on possible ways to preserve those freedoms and rights that literally constitute our heritage.

This will not be an easy task. It is wholly non-violent, peaceful, and at all times lawful. But it requires ingenuity, patience, dedication, and a commitment by all who are able to do their part to make a difference. I have been warning about the dangers to our democracy for some time, and those dangers have only increased over the passage of years leading up to the moment when there was an unmistakable and violent move to topple our democracy and install a totalitarian government through a bloody coup. Thankfully that attempt failed, but the threat is far from over.

I mention the coup not to distract from my thoughts about the current composition of the Supreme Court, but to frame my discussion with the brutal frankness that too many of our institutions have fallen far short in their obligation to defend and protect our Constitution, its ideals and fundamental principles, and the people themselves who are supposed to be the beneficiaries of this social compact that is the essence of a democratic government. Sadly, as I have endeavored to explain in Part One of this essay, the Supreme Court today is a foundational institution that has flunked in delivering in its role to uphold the rule of law. Instead it has embraced extremist political viewpoints advocated by a powerful minority of the people to disenfranchise and/or strip the majority of the people of their rights.

What are our options and how might we effectively respond to such developments?

Let me begin with the decision in the case of West Virginia v EPA, in which the supermajority bloc gutted the Environmental Protection Agency’s ability to regulate carbon emissions from polluting energy sources. The Court essentially ruled that the Biden administration had to get authority from Congress to take such regulatory action. Of course, because of the previous Citizens United decision by the Court, the energy corporations doing the polluting have been able to contribute vast funds to Congressional representatives to (ahem) solicit their support. (Justice Roberts assured us there would be no quid pro quo —a prominent example, if I may offer such, of two institutions flunking their roles and duties in safeguarding democracy.)

This decision threatens the lives of everyone affected by climate change in that our planet has a small window of maintaining a habitable environment if we act rapidly enough to significantly reduce carbon emissions. We are in a race to do so before the carbon load becomes irreversible and dooms life as we know it on Earth. Time, in other words, is of the essence.

A fact that is not well known is that the Biden administration recently had the opportunity at the United Nations Climate Change Conference to support a resolution approved by the UN Human Rights Council to the effect that climate change is one of the most serious threats to present and future generations to enjoy human rights, including the right to life. At that time, the administration tepidly stated “we do not believe there is a basis in international law to recognize a right to a…sustainable environment.” On July 28, the United States did vote to approve the “The Right to a Clean, Healthy and Sustainable Environment Resolution” at the United Nations, while continuing to state that “…a right to a clean, healthy, and sustainable environment has not yet been established as a matter of customary international law… And, in voting “YES” on this resolution the United States does not recognize any change in the current state of conventional or customary international law.”

There are several lawsuits that have been filed throughout the world, including here in the USA, by people impacted by climate change seeking a declaration from the courts and government that a habitable environment is a basic human right. Such a declaration would cut through the obstacles presented by a Congress conflicted by special interests as well as recognize the urgency in the race against extinction. If our Constitution protects anything, surely Life itself is on the list.

Once upon a time there were a million people who marched for civil rights. We may need a similar outcry to counter this court ruling by demanding the Biden administration to officially recognize and formally join the UN Human Rights resolution that a habitable environment is a basic human right.

On a similar note is the case of Dobbs v Jackson Women’s Health Organization, which overturned Roe v Wade. A few critical points I wish to make at the outset. First, it is alarming to discover that in this 21st century United States, our Supreme Court has emphatically rejected the concept that women have any liberty interest, privacy rights, or autonomy in their own bodies. Not only that, but this Court has also decreed that States instead have the power to “regulate” women’s bodies as they see fit. (I have written previously about El Salvador and how its theocracy utilizes “vagina police” to investigate women suffering miscarriages who were reported to the police by their doctors—See State Penal Laws and the Catholic Church.)

Second, this ruling is based significantly, if not totally, on Christian religious doctrine which strictly forbids abortion and mandates that all States must enforce this doctrine through appropriate penal sanctions. And third, the United Nations Human Rights International Treaties reflects that in 1979 the United Nations adopted a guarantee that all women would have the right to be free from discrimination and that States must ensure the legal and practical enjoyment of that right. As components of that right, the UN references the States’ obligation to provide adequate medical treatment in connection to pregnancy and access to therapeutic abortion, a medical category that includes when a pregnancy endangers the life of the mother. A number of States make no exception in their anti-abortion laws for procedures necessary to save the lives of pregnant women, including Idaho, whose abortion law, supposed to take effect on August 25, is being challenged in a lawsuit filed by the U.S. Dept of Justice on August 2.

Moreover, it is generally understood in the scientific universe that defining when human life begins is not a question science can answer, but rather is a question of political, religious, and ethical values. At bottom, that issue has been the subject of politics infused mainly by Christian doctrine and teachings which reflect a belief system that does not have universal acceptance. Even within religious circles, not all major religions subscribe to the Christian doctrine (e.g., Judaism and Islam.) To add more controversy to the “beginning of life” issue there are those who are not affiliated with any religious belief system and have their own ethical beliefs on the critical question at the core of the politically driven legislation and the roller coaster jurisprudence on Dobbs overturning Roe. (For more detail on the religious impact and underpinnings see The Temptation of Theocracy.)

As noted previously, one major religion, the Catholic Church, promulgates a corollary doctrine on when life begins (at conception) with a mandate that all States must enact appropriate penal sanctions to enforce its doctrine on the beginning of life. All of the Justices who were signatories on the Dobbs ruling are affiliated with the Catholic religion. This raises the legitimate question as to whether they had a conflict in presiding over the case based on the doctrines issued by their religious leaders, and whether they were bound by judicial ethics to recuse themselves.

Given this backdrop, women affected by the Dobbs ruling and who face prosecution or other discrimination by the States “regulating their bodies” should consider asserting some or all of these issues in their defense—e.g. their personal belief systems/consciences which may conflict with those which are the core of laws being enforced against them, whether the charges violate the establishment clause of the 1st Amendment, and perhaps even exploring the possibility under international law of filing a complaint with the appropriate Human Rights tribunal. (A victim who suffered a miscarriage and was unjustly imprisoned for years by the draconian El Salvador theocratic laws successfully pursued such a complaint with the Inter-American Court of Human Rights. The United States is a signatory to the Convention on Human Rights which formed the tribunal per a human rights treaty, but has never ratified the Convention).

Although such tactics may be unprecedented in the US, our country is being thrust into uncharted waters where its citizens are being stripped of rights they thought they had–by their own government–and now find themselves deprived of meaningful access to those institutions established to protect them but which instead have abdicated their duty to uphold those rights. In short, the Rule of Law is itself being threatened and with it democracy itself. In a tragic reversal of centuries of history, we are finding ourselves on the outside of the human rights spectrum we once proudly thought we owned and fought a Civil War to enforce.

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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 8.4.2022