The Supreme Court’s Next Targets

As the leaked draft of the Supreme Court opinion that would overturn Roe v. Wade reveals, there are at least five justices on the Court who long for the days when women were chattel and had little or no control over their own bodies.  The draft opinion's attack on the right to privacy bodes ill for same sex marriage and even married couples having access to contraception - some on the right have suggested ending abortion and contraception would help reverse "white replacement" by racial minorities.  As a piece in The Atlantic suggests a return to the anti-woman, homophobic world of the 1950's is perhaps not the right wing majority's only agenda.  Indeed they want to return to a more openly racist past and an era where corporations and robber barons could destroy the environment with impunity all for corporate and personal profit even as the lives of the majority of citizens were harmed in some instances shortened.   With these justices, the rights of the few and religious extremist trump - no pun intended - the wellbeing of the majority.  Here are column excerpts: 

Following the Supreme Court’s leak of a draft decision overturning Roe v. Wade, many Court-watchers and pundits have pointed to same-sex marriage and access to contraceptives as rights now potentially at risk. And while in the long run the logic set forth in Dobbs v. Jackson Women’s Health Organization could undermine those precedents, the Court may eviscerate other major areas of law far sooner—in fact, with cases on its docket this current term. Notably, the Court may soon declare the use of race in college admissions—affirmative action—illegal, and it may also massively constrain the power of the federal government to protect the environment.

The questions at hand in each case—Dobbs, Students for Fair Admissions v. Harvard, and West Virginia v. Environmental Protection Agency—differ. But they all raise issues that have been the targets of conservative legal scholars for decades, and they will now be decided by a right-wing Court with seemingly little commitment to its own precedents.

The use of race in admissions has been permissible in the eyes of the Court since 1978, when Justice Lewis F. Powell Jr. delivered his opinion in Regents of the University of California v. Bakke. Allan Bakke, who was white, argued that he had been denied entry into UC Davis’s medical school because of its affirmative-action program, which reserved 16 of the 100 seats in each class for minority students—though the school contended that his age (35) and average test scores had more to do with his rejection. Powell ruled that race could be used in admissions in concert with a host of other factors—including grades, extracurricular activities, and test scores—to build a class, because diversity was an important interest of the state’s. As such, his decision was not about righting historical wrongs, but about diversity for the benefit of the entire campus community. Over the next 40 years, the decision was upheld time and again.

In 2014, Students for Fair Admissions[“SFFA”], a nonprofit founded by Edward Blum, which represents a group of anonymous Asian American students, filed a lawsuit against Harvard claiming that its admissions process discriminated against the students because of their race. . . . SFFA explicitly pointed to one of the most recent cases that upheld affirmative action: Grutter v. Bollinger. “Grutter should be overruled, as it satisfies every factor that this Court considers when deciding to overrule precedent,” SFFA said in a filing to the Supreme Court. “It was wrong the day it was decided, has spawned significant negative consequences, and has generated no legitimate reliance interests”—a legal term referring to people who have taken actions based upon the statements of others, including the courts.

Perhaps with even less public awareness, the Court may also decimate the federal government’s power to make regulations that protect the environment. In West Virginia v. Environmental Protection Agency, which challenges the EPA’s ability to regulate carbon emissions, the Court could invoke what is known as the non-delegation doctrine—a theory that effectively says Congress cannot easily empower the executive branch to figure out the details of regulatory policy.

Its use was most prominent during the height of resistance to New Deal policies, in the 1930s. But it has long been roundly rejected by justices since—including the originalist Antonin Scalia, who wrote in a 2001 opinion that “we have ‘almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.’”

“There are five people who said things like ‘The non-delegation doctrine in the 1936 way—that had real teeth, and restricts how broad delegations can be to the government—should be a thing again, and we’re going to be happy to go along with the case.’” The Court could, of course, rule in a way that affects only this one agency rule, but it’s possible that the justices will take a much bigger swing, making any meaningful federal environmental regulation essentially impossible.

These cases haven’t received the same level of attention as Dobbs, and they fall outside the privacy issues adjacent to abortion, but they are no less consequential. And if the Court overturns these areas of long-settled law, millions of people’s lives will be affected, for generations to come.

All elections matter - something more Americans need to grasp - but presidential elections that determine who nominates justices are absolutely critical.  Sadly, too many Democrats and moderates have failed to recognize this reality.  We all may be about to pay a huge price for such lack of attention and failure to vote.