SUBSCRIBE TO OUR FREE NEWSLETTER
Daily news & progressive opinion—funded by the people, not the corporations—delivered straight to your inbox.
5
#000000
#FFFFFF
5
#000000
#FFFFFF
dobbs v jackson
The Arrogant Supreme Court Is Now the Enemy Within
Americans know the Supreme Court’s anti-democratic agenda when they see it. Americans know a judicial power grab when they see it. Americans know a king when they see one. Tell me, America, do you like what you see?
Jul 05, 2024
Former President Richard Nixon used a ridiculous line to rationalize his misconduct: “If the President does it, that means it’s not illegal.”
On July 1, 2024, Nixon’s outrageous position became the law of the land.
But that is only the most recent illustration of how former President Donald Trump’s Supreme Court is remaking America. The justices comprising the court’s six-member conservative supermajority are foisting their personal vision for the country on citizens who largely disagree with that vision. Trump appointed three of them.
Trump asserts that, if reelected, he’ll be “dictator for a day.” The Supreme Court’s ruling makes him comparable to a king—a law unto himself—for an entire four-year term.
Two years ago, Dobbs v. Jackson Women’s Health Organizationwas a harbinger. The Court’s six conservatives overruled the landmark 50-year-old precedent, Roe v. Wade, and obliterated a woman’s right to abortion—a right that the vast majority of Americans across the political spectrum support.
Dobbs was only the beginning.
The Court Abandons Stare Decisis
The conservatives justices’ agenda requires violating the bedrock principle of stare decisis.
Justice Elena Kagan explained, “Adherence to precedent is ‘a foundation stone of the rule of law...’ Stare decisis ‘promotes the even-handed, predictable, and consistent development of legal principles.’ It enables people to order their lives in reliance on judicial decisions. And it ‘contributes to the actual and perceived integrity of the judicial process,’ by ensuring that those decisions are founded in the law, and not in the ‘personal preferences’ of judges.” [Citations omitted.]
Already at a historic low, the court’s perceived integrity continues to suffer self-inflicted wounds at the hands of its conservative members. They are imposing their personal preferences on the entire nation.
In the waning days of the court’s 2023-2024 term, some of the most draconian—and dangerous—emerged from the shadows.
The Court Guts the SEC and Imperils Other Federal Agencies
On June 27, 2024, the Court’s conservative block (Justices Samuel Alito, Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, John Roberts, and Clarence Thomas) issued SEC v. Jarkesy. The ruling bars the Security and Exchange Commission from adjudicating civil fraud actions itself before an administrative law judge. Instead, the SEC must now file all such actions in federal court where a defendant can request a jury trial, thereby crippling the agency’s enforcement capabilities.
On behalf of the court’s three dissenting liberals (Ketanji Brown Jackson, Kagan, and Sonia Sotomayor), Justice Sotomayor wrote, “Congress has enacted countless new statutes in the past 50 years that have empowered federal agencies to impose civil penalties for statutory violations… Similarly, there are, at the very least, more than two dozen agencies that can impose civil penalties in administrative proceedings… The constitutionality of hundreds of statutes may now be in peril, and dozens of agencies could be stripped of their power to enforce laws enacted by Congress.”
Justice Sotomayor added, “Today’s ruling is part of a disconcerting trend: When it comes to the separation of powers, this court tells the American public and its coordinate branches that it knows best… Make no mistake: Today’s decision is a power grab.”
The Court Kills the Climate
Also on June 27, 2024, in Ohio v. EPA, five of the Court’s conservatives blocked the Environmental Protection Agency’s plan to protect “downwind” states from the air pollution that “upwind” states generated.
From 1981-1983, Justice Gorsuch’s mother, Anne, had led the EPA during the Reagan administration. Repeatedly, she clashed with environmentalists and congressional investigators challenging her management of the agency. In 1983, the White House forced her to resign.
In her 1986 memoir, Anne Gorsuch wrote that her rocky tenure and unceremonious departure distressed her son, Neil, who was 15 years old at the time:
“You should never have resigned,” he told her. “You didn’t do anything wrong. You only did what the president ordered. Why are you quitting? You raised me not to be a quitter. Why are you a quitter?”
Forty years later, Justice Neil Gorsuch wrote the majority opinion in Ohio v. EPA.
The Court “Grasps for Power”
The following day, on June 28, the conservative block struck again in Loper Bright Enterprises, v. Raimondo, overruling a 40-year-old precedent, Chevron v. National Resources Defense Council.
Back in 1984, conservatives had scored a big victory when a unanimous Supreme Court first issued the Chevron ruling. It required that courts defer to administrative agencies that filled in gaps or resolved ambiguities in Congress’ regulatory statutes.
At the time, business leaders cheered the decision because President Ronald Reagan’s EPA (under Anne Gorsuch) had loosened air pollution emission regulations. To preserve that loosening, the affected businesses wanted courts to respect the EPA’s scientific and technical expertise. The Court agreed, observing, “Judges are not experts in the field, and are not part of either political branch of the government.” The latter point meant that judges weren’t accountable to the electorate, whereas agency administrators served at the pleasure of an elected president.
But in the years that followed, businesses chafed at agency regulation. Along with the conservative legal movement, business leaders reversed course and attacked Chevron unsuccessfully—until Trump’s appointment of Barrett gave the conservatives a supermajority on the Supreme Court.
In dissent, Justice Kagan observed that Chevron “served as a cornerstone of administrative law, allocating responsibility for statutory construction between courts and agencies… [It] has formed the backdrop against which Congress, courts, and agencies—as well as regulated parties and the public—all have operated for decades. It has been applied in thousands of judicial decisions. It has become part of the warp and woof of modern government, supporting regulatory efforts of all kinds—to name a few, keeping air and water clean, food and drugs safe, and financial markets honest.”
Under Chevron, Justice Kagan added, the Supreme Court itself “has upheld an agency’s reasonable interpretation of a statute at least 70 times. Lower courts have applied the Chevron framework on thousands upon thousands of occasions... Chevron was cited in more than 18,000 federal-court decisions.” [Citations omitted.]
“A longstanding precedent at the crux of administrative governance thus falls victim to a bald assertion of judicial authority,” Justice Kagan concluded. “The majority disdains restraint, and grasps for power.”
The Court Helps Trump Avoid Accountability
The conservative block saved its worst for last—the court's July 1, 2024 ruling in Trump v. U.S. If democracy dies in America, Chief Justice Roberts’ opinion in the case will have been a key contributor.
“We conclude that under our constitutional structure of separated powers, the nature of presidential power requires that a former president have some immunity from criminal prosecution for official acts during his tenure in office,” Roberts wrote on the final day of the court’s term. “At least with respect to the president’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is also entitled to immunity.”
Writing for the three dissenting liberal members, Justice Sotomayor declared, “Today’s decision to grant former presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of government, that no man is above the law… [O]ur Constitution does not shield a former president from answering for criminal and treasonous acts,…”
Trump asserts that, if reelected, he’ll be “dictator for a day.” The Supreme Court’s ruling makes him comparable to a king—a law unto himself—for an entire four-year term.
“I Know It When I See It”
In discussing a pornography case, Justice Potter Stewart once remarked, “I know it when I see it.”
Americans know the Supreme Court’s anti-democratic agenda when they see it.
Americans know a judicial power grab when they see it.
Americans know a king when they see one.
And as Americans come to understand the conservative Supreme Court justices’ profoundly negative impact on their daily lives, they won’t like what they see.
Keep ReadingShow Less
One Year Later, the Fall of Roe Is Already Hurting Abortion Care in the US
The scope of reproductive healthcare that women can receive is highly dependent on where they live, creating a system of inequalities and further exacerbating health disparities.
Jun 23, 2023
In the year since the U.S. Supreme Court’s Dobbs v. Jackson ruling struck down the constitutional right to abortion, society has been seeing the results of a post-Roe world.
While there is no law in the U.S. that regulates what a man can do with his body, the reproductive health of women is now more regulated than it has been in 50 years. And the scope of reproductive healthcare that women can receive is highly dependent on where they live.
This creates a system of inequalities and further exacerbates health disparities.
While there is no law in the U.S. that regulates what a man can do with his body, the reproductive health of women is now more regulated than it has been in 50 years.
I am a nurse practitioner who studies women’s reproductive health across the lifespan.
My research found that college women are concerned about pregnancy, but they lack knowledge and skills about navigating sexual consent and often participate in sexual activity without explicit consent, leaving them at risk for not using contraception and exposure to sexually transmitted infections.
These findings indicate that women are at risk of pregnancy at a historic time when women’s reproductive rights in the U.S. are restricted and not guaranteed.
Current State of Abortion in the U.S.
The Dobbs v. Jackson ruling returned decisions regarding abortion to individual states. This has led to a patchwork of laws that span the entire range from complete bans and tight restrictions to full state protection for abortion.
In some states, such as Texas, Louisiana, and Mississippi, abortion is banned beginning at six weeks gestational age, when very few women even know they are pregnant. Other states, such as Massachusetts, Vermont, New York, and Oregon, have enacted state-level protections for abortion.
The patchwork of state laws also results in a great deal of confusion. In the past year, women’s rights organizations and women’s health advocates have brought numerous legal challenges to restrictive abortion laws. These cases have halted the implementation of some of the strictest abortion regulations until additional court rulings are finalized.
Downstream Effects for Healthcare Professionals
Abortion training is considered essential healthcare and a core competency for physicians in obstetrics and gynecology, or OB-GYN, residency programs. Approximately 50% of OB-GYN residency programs are located in states with restricted or highly restricted access to abortion. This will logically result in not only fewer healthcare providers being trained to perform gynecologic procedures for abortion, but also other conditions such as miscarriage, fetal death, and nonviable pregnancies.
In states with changing abortion laws and legal challenges to new laws, physicians are uncertain of what procedures can be legally done. Penalties for violating abortion laws may include arrest, loss of medical license, fines, and discipline by state boards of medicine.
As a result, physicians are choosing to leave states with the most restrictive abortion laws, and clinics are closing, which is contributing to the current shortage of healthcare providers.
Inequalities in Healthcare Access
The unequal access to abortion procedures across the country is most directly affecting the poorest women in the U.S.
Currently, 12 states restrict abortion coverage by private insurance, and more than 30 states prohibit public Medicaid payment for abortion. Women who qualify for Medicaid are among the poorest in the U.S. Lack of access to abortion limits education and wage earning and contributes to poverty. States with the most restrictive abortion laws also have limited access to pregnancy care and supportive programs for pregnant and parenting women.
In addition, traveling to a different state to obtain an abortion is often not possible for poor women. Lack of transportation and limited financial resources reduce or eliminate options to obtain an abortion in a different geographic location.
What’s more, states with the most abortion restrictions have some of the worst pregnancy and maternal health outcomes for women, especially women of color.
What’s more, states with the most abortion restrictions have some of the worst pregnancy and maternal health outcomes for women, especially women of color. Pregnancy itself is associated with a risk of dying.
Maternal morbidity is the term used to describe short- or long-term health problems that result from pregnancy. Maternal mortality refers to the death of women during pregnancy or within the first six weeks after birth.
For example, Mississippi and Louisiana have the highest rates of maternal mortality in the U.S. and also have the most restrictive abortion laws. Black women have the highest maternal mortality of all races and ethnicities. Women in these states who are unable to terminate a pregnancy have a higher risk of dying as a result of the pregnancy than women in other states.
Additionally, research shows that a woman’s risk of dying related to pregnancy or childbirth is about 14 times higher than the risk of death from an abortion.
In addition to the increased risks of death, there are other physical and mental health implications associated with carrying an undesired pregnancy to term. Being denied access to abortion is associated with increased anxiety and fewer future plans for the next year. Research also shows that not being able to obtain an abortion makes women more likely to live below the federal poverty level and to lack partner support.
Conversely, research has shown that there are few if any significant negative mental health outcomes among women who have abortions.
Unsafe Abortions
Restricting legal abortion increases the risk that women will seek out pregnancy termination from unskilled people in unsafe settings. Or they may not seek care quickly for pregnancy complications due to fear of being accused of a crime.
In Texas, physicians are reporting an increase in sepsis, or an overwhelming response to infection, from incomplete abortions. These physicians predict that sepsis will become the leading cause of maternal death in Texas.
“I didn’t know I was important enough to draw boundaries around what people could and couldn’t do with my body.”
Prior to 1973, when Roe v. Wade established constitutional protection for abortion in the U.S., women often resorted to unsafe methods to induce abortion that resulted in a high death toll. Septic abortion wards—or designated areas of hospitals where women were treated for sepsis as a result of illegal abortions—were common. In 1965, 17% of all deaths related to pregnancy were attributed to illegal abortion.
Now that the constitutional right to abortion has been eliminated, more women will inevitably die or become seriously ill due to lack of safe access to abortion services. In states with the most restrictions on abortion, whether a woman meets the criteria for an exemption to save the life of the mother may be decided by a hospital committee. This can delay necessary care and increase the risk to the mother.
Said one: “I didn’t know I was important enough to draw boundaries around what people could and couldn’t do with my body.”
Women Affected by Violence
In the U.S., more than 25% of women will experience physical or sexual violence in their lifetime. Violence from an intimate partner is a leading reason for abortion. My research shows that women affected by violence have a higher risk of pregnancy and that college women are at increased risk of nonconsensual and forced sexual encounters.
Currently, there are 14 states with abortion bans that contain no exception for rape or incest or require that the sexual assault be reported to law enforcement to qualify for exception.
Research has shown that women often don’t report sexual assault due to stigma, embarrassment, or fear of not being believed. Even if women qualify for an abortion as a result of sexual violence, those who have not filed a formal police report lack “proof” that their pregnancy resulted from assault.
While the changes that have occurred since the fall of Roe one year ago are already deeply concerning, the full effect of eliminating the constitutional right to an abortion won’t be known for years. And as laws are enacted and subsequently challenged, uncertainty and confusion regarding women’s reproductive healthcare will undoubtedly continue for years to come.
Keep ReadingShow Less
The Corruption of the Right-Wing Supreme Court
We may be subject to the court's authority and bound by its rulings, but we can and must call out the court’s hypocrisy and its betrayal of democracy.
Feb 11, 2023
Under the guise of the regressive legal theory of “originalism,” the United States Supreme Court Republican-appointed majority has issued a series of ultra-right rulings on such vital issues as voting rights, gerrymandering, union organizing, the death penalty, environmental protection, gun control, abortion, and campaign finance. The end goal appears to be nothing less than the dismantling of the last vestiges of the New Deal and the Civil Rights movement.
But in addition to being reactionary, is the court also guilty of corruption? The answer depends on how we define and think of corruption.
In the strictest legal sense, the justices appear to be in the clear. Under federal law, “public corruption” is defined as “a breach of the public’s trust by government officials who use their public office to obtain personal gain,” asking for or receiving anything of value in exchange for an official act. In a 2016 decision reversing the bribery conviction of former Virginia GOP Governor Bob McDonnell, the Supreme Court narrowed the legal definition of public corruption to require strict proof of a “quid pro quo”—a swap of money or another benefit in return for a specific governmental favor.
But from a larger moral and political perspective, the court’s Republican majority is far from innocent. We expect all federal judges—and particularly those at the top of the judicial pyramid—not only to be law-abiding but to be free of political bias and conflicts of interest. We expect them to honor the enormous faith we have placed in them to use their lifetime appointments to be forthright stewards of justice and democracy.
That faith has been breached time and again.
Ethical Cannon 2A of The Code of Conduct for United States Judges requires those who don the robe to “respect and comply with the law,” and “to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Cannon 2B further advises that a “judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment.”
There also is federal statute, found at Title 28, section 455 of the United States Code, that requires judges to disqualify themselves when they have a personal bias or prejudice toward a party, or when the judge or their spouse has a financial interest in a proceeding, or they or their spouses have “any other interest that could be substantially affected by the outcome” of a proceeding before them.
The problem is that the Code of Conduct does not apply to the Supreme Court. And there is no mechanism for enforcing the disqualification criteria against a sitting justice. The Supreme Court stands alone as the only tribunal in the nation without any ethical accountability beyond impeachment, which for all practical purposes is an ineffective remedy. (Only one Justice in our entire history has been impeached—Samuel Chase in 1804—and he was acquitted by the Senate.)
The most obvious offender is Clarence Thomas, who has gotten away with flagrant misconduct as a result of this lack of accountability. Under the 1978 Ethics in Government Act, all high-ranking federal officials are required to file yearly financial disclosure statements for themselves and their spouses to safeguard against conflicts of interest. But for many years, Thomas failed to report his wife Ginni's earnings on the mandatory annual financial disclosure forms that he signed under penalty of perjury, indicating that his spouse had no non-investment income. In fact, she was steadily employed in high-level jobs as a policy analyst and an outspoken conservative activist.
According to Common Cause, Ginni—who is also a lawyer—received more than $686,000 between 2003 and 2007 working for the Heritage Foundation. In 2011, claiming incredulously that he had misunderstood his reporting responsibilities, Thomas amended his financial disclosures, which can now be examined on the OpenSecrets.org website.
Thomas again generated headlines when he refused to recuse himself in cases involving the January 6 insurrection and Trump’s efforts to overturn the results of the 2020 election, despite Ginni’s prominent role as an organizer of the “stop the steal” campaign.
Thomas is not the only justice with a spouse whose work has raised conflict-of-interest questions. According to The New York Times, Chief Justice Roberts’ wife Jane has made millions in her career as a recruiter for high-profile law firms, some of which litigate cases before the Supreme Court. The Chief Justice, however, has never recused himself from a matter involving his wife’s recruits and has never disclosed her client list on his annual financial reports.
Additional potential conflicts of interest have surfaced around donations made to the Supreme Court Historical Society, a non-profit charity founded in 1974 to promote and celebrate the court’s legacy. Over the past two decades, the society reportedly raised more than $23 million from corporations, law firms, and other groups. The donors, in turn, receive special access to the Justices, who regularly attend the society’s annual black-tie dinner as well as lectures and other functions the society sponsors.
Among those who have attended society events and helped raise donations on its behalf is the Reverend Rob Schenck, an Evangelical minister and anti-abortion crusader. In a June 2022 letter to Chief Justice Roberts and in later interviews with The New York Times, Schenck claimed he was told in advance of the court’s 2014 decision in Burwell v. Hobby Lobby, which held that the owners of for-profit corporations may lawfully refuse to fund health insurance coverage for employees for contraception on religious grounds. The source of the leak, Schenck alleged, was Justice Samuel Alito, the author of the Hobby Lobby majority opinion.
Alito also has been at the center of the scandalous leak last May of the draft majority opinion in Dobbs v. Jackson Women’s Health Organization, which Alito wrote, overruling Roe v. Wade.
After an eight-month internal investigation, the court announced in January that it has been unable to determine the source of the leak. Rightwing zealots like Senator Ted Cruz, Republican of Texas, have suggested that a clerk for one of the court’s liberal justices is the likely culprit. Pundits on the left, such as former Secretary of Labor Robert Reich, have argued that Alito more likely was the source, seeking to lock in the votes of the Justices Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, who joined his opinion.
Additional potential conflicts of interest have surfaced around donations made to the Supreme Court Historical Society, a non-profit charity founded in 1974 to promote and celebrate the court’s legacy.
Alito, for his part, has denied all wrongdoing in connection with both the Hobby Lobby and Dobbs leaks. However, neither Alito nor any of the other members of the court were questioned under oath as part of the Dobbs probe.
Any discussion of Supreme Court corruption would be incomplete without mentioning the serious defects that attend the confirmation process for high-court nominees. The nonprofit watchdog group Citizens for Responsibility & Ethics in Washington (CREW) has reported that rightwing dark money groups such as the Judicial Crisis Network raised staggering sums to support the nominations of Gorsuch, Kavanaugh, and Barrett in an effort to push the court hard to the right. The dark money forces won, unbeknownst to the general public.
And then there are the Senate confirmation hearings, which are also critically flawed. The nominees testify under oath, but pay no price for making false, misleading, and possibly perjurious statements. Every member of the five-vote Dobbs majority arguably lied about their true views on the precedential value of Roe and the constitutional right to abortion during their confirmation hearings—Thomas in 1991, Alito in 2005, Gorsuch in 2017, Kavanaugh in 2018, and Barrett in 2020.
All six Republicans on the court are also current or former members of the Federalist Society, yet another fact that calls their impartiality into question.
Unfortunately, there is little that can be done in the near term to rein in corruption at the Supreme Court. Even a modest bill introduced by Senate Democrats to pass an ethics code for the court has little prospect of getting through the MAGA-dominated House of Representatives.
But we are not powerless. We may be subject to the court’s authority and bound by its rulings, but we can and must call out the court’s hypocrisy and its betrayal of democracy at every possible turn.
Keep ReadingShow Less
Most Popular