How a hard-right Supreme Court is ‘rolling back progress’ on multiple fronts: legal expert

Although Democrats have won the popular vote in seven of the United States' last eight presidential elections, they have had terrible luck with the U.S. Supreme Court in recent decades. Six of the nine justices were appointed by Republican presidents, and the U.S. now has its most hard-right Supreme Court in generations. Progressive attorney/journalist Elie Mystal examines the state of the Supreme Court in an in-depth article published by The Nation, outlining some of the ways in which its right-wing majority is likely to "stop progress" in the months ahead.

The overall tone of Mystal's article is quite pessimistic. Because only one-third of the Supreme Court is controlled by Democratic appointees, Mystal warns, "Republicans can do a lot of damage."

"This term, we will see conservatives celebrate the achievement of two long-sought goals they could not accomplish through electoral politics," Mystal explains. "We will see broad conservative agreement that women should be treated as second-class citizens, reduced to the status of incubators with mouth parts, when the Court hears the most direct challenge to abortion rights in a generation. And we will see broad conservative agreement that guns have more rights than children."

Mystal notes that Chief Justice John Roberts, Justice Amy Coney Barrett and Justice Brett Kavanaugh "are in lockstep with their fellow conservatives on all the important issues."

According to Mystal, "They all agree that organized labor should be disempowered, that voting should remain a largely White privilege, and that religious groups should be able to stop LGBTQ people from adopting children. That's not theory; that's the upshot of three decisions the conservatives hung together to make last term. The six conservatives agree on the outcomes; they disagree only on the best way to go about their awful work of reversing the gains of the civil rights and gay rights movements and dismantling the social safety net."

One of the cases that Mystal discusses is in his article is Dobbs v. Jackson Women's Organization, which could end with the High Court overturning Roe v. Wade — the 1973 ruling that, in effect, legalized abortion nationwide in the U.S. Mystal, noting that a hearing on Dobbs is set for December 1, isn't optimistic that Roe will continue in its current form.

"At issue in Dobbs is a Mississippi law that prohibits abortions after 15 weeks, nearly ten weeks before fetal viability," Mystal notes. "The law does have an exception for the health of the mother, but it makes no exception for rape or incest. And it's an outright ban…. Mississippi asked the Supreme Court to overrule Roe directly. The fact that the Court took the case shows that there are at least four justices who are willing to consider revoking the standard set by Roe: that outright bans on abortions before fetal viability are unconstitutional."

Mystal continues, "If I had to guess, I'd say that Clarence Thomas, Samuel Alito, Neil Gorsuch and Amy Coney Barrett are the four who are prepared to thumb their noses at settled law in order to control women's bodies. So, the big question is whether there is a fifth justice — either Chief Justice John Roberts or alleged attempted rapist Brett Kavanaugh — who wants to go along for the ride. I think both of them will."

The attorney predicts that the High Court "will not only uphold Mississippi's ban, but will also do it in a way that helps the Republican political agenda the most."

Mystal predicts, "They won't 'overturn' Roe v. Wade. They'll just roll it back far enough to erase the very line — pre-viability — that Roe was erected to protect. That sleight of hand will allow mainstream media pundits and Republicans like Susan Collins to say, 'See, Roe is still the law!' while also allowing movement conservatives to send out letters asking for money to keep up the fight against abortion. And it will allow useless Democrats to say that Roe has been preserved…. But in red states, abortion rights will be seriously compromised — and in some cases, like Mississippi, they will almost cease to exist."