There have been several recent shocking Supreme Court decisions. First of all, there’s Dobbs v Jackson, which overturned Roe v Wade. In the immediate aftermath, multiple states passed bills banning abortion. Some of these bans do not include exceptions for rape or incest. There is already a report of a pregnant 10 year old child having to cross state lines to get an abortion. Some of these laws don’t even include an exception for a woman’s health. There are already reports of women with serious medical conditions being prohibited from basic medical treatment.
It doesn’t stop there. In the opinion, it opens up the door in the future to allow the banning of such things as contraception and same sex marriage. The legal theory that it knocks down forms the basis of a broad array of other protections (eg interracial marriage).
In my memory, this is the first time that the Supreme Court has taken away rights that have been in place for decades.
Next, in West Virginia v EPA, the Supreme Court limited the EPA’s ability to curb emissions from coal burning plants. Given that we’re in the midst of an unprecedented heat wave, that the Southwest is starting to run out of water, and that major fires are now an annual rite, restricting the federal government’s ability to manage climate change seems to be, longer term, an even more disastrous decision.
Given the composition of the current Supreme Court, this would appear to be a harbinger of things to come. Over the next several years, a rollback of rights and a further restriction of federal oversight seems inevitable.
Understandably, there have been cries of outrage. Rights that were considered ‘settled’ law are now back in play. People wonder how it can be possible that a regressive Supreme Court can roll back laws and policy that are approved by a majority of Americans. How did this Supreme Court become so horrible?
Well, here’s the thing. We’re all victims of something called Recency Bias. Recency Bias is a cognitive concept where a person puts more weight on recent events over historic events. The fact is that the composition of this Supreme Court isn’t an anomaly. The Supreme Court justices from the 1950s through the 1970s, which laid the foundation for so many of the rights that we have today, were the anomaly.
Except for that narrow range of time, Supreme Court decisions have been consistently anti-individual and pro-corporate interests. An interesting book called Injustices, by Ian Millhiser, covers this in detail (I wrote about the book here). I think that what we’re seeing is a reversion to the mean.
Don’t believe me? Let’s take a walk through some of the all time worst decisions made by that august body.
Dred Scott v Stanford (1857)
This case always tops the list of bad decisions, and for good reason. This decision explicitly said that white people are members of the ‘citizen race’. Black people (and indigenous people got thrown in as well) had no standing in the United States. It mentioned, with horror, certain unspeakable scenarios like Black people actually having the right to free speech and hold public meetings. By the way, it also undid the Missouri Compromise, which was the very fragile structure that the North / South relationship was hanging on.
It’s hard to imagine another decision coming along that will supplant its top status.
Plessy v Ferguson (1896)
Always a top contender, this decision upheld segregation as long as it was ‘separate but equal’. Of course separate but equal lies in the eyes of the beholder. It’s fair to say that significant more emphasis was placed on separate than equal. This decision ensured that Jim Crow laws would have another 60 years of life.
Buck v Bell (1927)
This one still shocks me. It ruled in favor of eugenics. That is, the Supreme Court had no problem with forced sterilizations of those with limited mental faculties. Oliver Wendell Holmes, considered one of the great justices, wrote the majority opinion (decided 8-1!) and concluded it with the words, “three generations of imbeciles are enough”. Nazi Germany modeled many of its eugenics laws from US law. So, we have that going for us.
Korematsu v United States (1944)
This said that the whole let’s imprison Japanese people in internment camps just because they look different than us white people is just fine.
Lochner v New York (1905) and Hammer v Dagenhut (1918)
I’m just going to combine these two cases into one discussion because they both concern labor laws.
New York had a law limiting bakers to 10 hour days. The state was sued and the law was overturned by the Supreme Court. The basis for the decision was that bakers should be able to voluntarily contract to work as many hours as they want. I mean, if a baker wants to work 22 hours a day, then there should be no law to preclude them from doing so, right? This is one of those decisions that was apparently decided in an ivory tower so high and impregnable that no reality at all could shine in. Bakers were being forced to work brutal hours. They had no choice in the matter at all. To think that one baker could somehow find the best job for himself while the entire industry was colluding against him is laughable.
It’s a good thing that the Supreme Court was always there whenever some individual tried to pick on one of those helpless corporations.
Thankfully, Lochner was later overruled. However, don’t get too comfortable. Revisiting Lochner is a goal that Clarence Thomas has specifically called out.
In Dagenhut, the Supreme Court decided that Congress couldn’t regulate child labor in a cotton mill because the child’s labor does not take place intestate (but the product of that labor definitely does, so the decision is bizarre). With that decision, federal child labor laws were declared unconstitutional. Put those kids to work, everyone!
Citizens United v FEC (2010)
Back to my reversion to the mean argument, not all bad decisions were 100 years ago. Some are actually quite recent. This notorious decision said that money equals free speech, and therefore cannot be regulated. So, we’re now in a situation where billions of dark money are being spent. Politicians are basically full time money gatherers. Our political process has become completed corrupted by the injection of limitless money.
That’s a lot of bad decisions! The point of writing this post was to disabuse those of you who think that the Supreme Court is some hallowed institution where our rights as citizens are protected. For a relatively short period of time, this was true. However, historically, it was never true and we’re now back in a place where it is no longer true.
If you want to protect your rights, you have to fight for them. There is no supreme law of the land that is watching out for you.
dorkenstein 