THE IMPLICATIONS OF RADICAL, REACTIONARY RULINGS BY THE SUPREME COURT

Note: If you find my posts too long or too dense to read on occasion, please just read the bolded portions. They present the key points I’m making and the most important information I’m sharing.

My previous post made the case that six of the nine Supreme Court justices (Alito, Barrett, Gorsuch, Kavanaugh, Roberts, and Thomas) are radical reactionaries both in the content of their rulings and in their decision-making process. This post will outline some of the societal implications of their rulings, particularly the ruling on the Texas law prohibiting most pregnancy terminations.

As you’re probably aware, the Supreme Court blocked a lower court from delaying the implementation of a Texas law restricting pregnancy termination (aka abortion) that is clearly unconstitutional and uses a highly unusual and fraught enforcement mechanism. The Court did so without hearing any arguments on the merits of the case. Implementation of the Texas law, even temporarily, will allow nuisance lawsuits that will probably bankrupt or otherwise put out of business all abortion providers in Texas. The Supreme Court, in an unprecedent action, has allowed immediate implementation of this law despite the facts that it clearly violates a constitutional right and does immediate harm by stopping 85% of pregnancy terminations that happen in Texas.

The Texas law allows any citizen to sue anyone or any organization that is in any way involved in a pregnancy termination that occurs roughly six weeks or more into a pregnancy. (At six weeks, most women don’t even know they are pregnant yet.) The citizen would get a $10,000 reward or bounty plus reimbursement for legal costs if they win the suit. If the defendant wins the suit, they are not eligible to recover legal costs. This makes a pregnant woman who would like to terminate her pregnancy prey for bounty hunters.

The Texas law encourages and rewards vigilantism, where neighbors sue neighbors. This is the type of “justice” system – with neighbors incriminating neighbors – that totalitarian regimes use to control people. It was used in pre-WWII Germany, in the Soviet Union, and in Iraq under Saddam Hussein, for instance.

This citizen enforcement mechanism was used – as opposed to the normal use of public law enforcement agencies – specifically to bypass federal judicial oversight and inhibit federal enforcement of a woman’s constitutional right to terminate a pregnancy as established by the 1973 Roe vs. Wade Supreme Court decision. As Justice Sotomayor wrote in her dissent, “Because the Court’s failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas, I dissent. … This is untenable. It cannot be that a state can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry.” [1]

As historian Heather Cox Richardson wrote in her blog, “The Republican Party is empowering vigilantes to enforce their beliefs against their neighbors.” [2] With vigilantism already escalating in our country, it needs no encouragement. It is occurring at school board meetings discussing mask mandates, it is being used to intimidate election and public health officials, and it was the foundation of the January 6 attack on the Capitol.

Vigilante “justice” and states’ rights (to ignore federal constitutional rights) are what was used to maintain white supremacy in the post-Civil War south. For eighty years, law enforcement in the south depended on your skin color, your gender, and whom you knew. Vigilantes kept Blacks from voting and kept education separate and unequal. Southern vigilantes could literally get away with murder up until the 1960s. [3]

The Supreme Court decision on the Texas pregnancy termination case and decisions on other cases related to religious beliefs and practices are allowing white, Christian religious beliefs to function as civil law. These decisions allow private organizations (e.g., employers and health care providers) and state governments to engage in discrimination and oppression based on religious beliefs in providing (or not providing) women’s health care and services to LGBTQ people, for example. The Texas law encourages and rewards citizens who act based on their religious beliefs about pregnancy termination and sue fellow citizens. [4]

In allowing Texas to implement unconstitutional pregnancy termination restrictions and to avoid federal enforcement of civil rights by empowering citizen enforcement of state laws, the Supreme Court has opened a barn door. This strategy, having been successful at least temporarily in Texas, will almost undoubtedly now be used by other states on this and other issues in ways that violate people’s civil rights. [5]

In summary, the Supreme Court is failing to enforce federal law and uphold civil rights, giving states free rein to ignore the due process and equal protection provisions of the 14th amendment. These are the provisions that allow the federal government to ensure the protections of the Bill of Rights for people, even when a state government tries to undermine them. These Supreme Court decisions mean the federal government cannot protect the rights of people of color, women, religious minorities, or otherwise-abled people. The Supreme Court has handed power over civil rights back to the states and the vigilantes, as it was in the 80 years after the civil war. [6]

It is unclear how this door, now opened, will be closed, but it is clear that reform of the Supreme Court to disempower its radical, reactionary, and ill-gotten majority is an essential part of that process.

In my next post, I will discuss the implications of the behavior of the Court’s radical reactionaries for the legitimacy and future of the Court. I’ll also present possible solutions to the current unprecedented and undemocratic actions of the Court.

[1]     Sotomayor, S., 9/3/21, “Sotomayor’s defiant dissent,” The Nation (https://www.thenation.com/article/society/sotomayor-abortion-dissent/)

[2]     Richardson, H. C., 9/1/21, “Letters from an American blog,” page 2, (https://heathercoxrichardson.substack.com/p/september-1-2021)

[3]     Richardson, H. C., 9/1/21, see above.

[4]     Hubbell, R., 9/2/21, “Today’s Edition: Susan Collins should resign in disgrace,” (https://roberthubbell.substack.com/p/todays-edition-susan-collins-should)

[5]     Hubbell, R., 8/31/21, “Today’s Edition: The U.S. war in Afghanistan is over,” (https://roberthubbell.substack.com/p/todays-edition-the-us-war-in-afghanistan)

[6]     Richardson, H. C., 9/3/21, “Letters from an American blog,” (https://heathercoxrichardson.substack.com/p/september-3-2021)