An 'aggressively conservative' Supreme Court is poised to attack everything from abortion rights to affirmative action

An 'aggressively conservative' Supreme Court is poised to attack everything from abortion rights to affirmative action
The U.S. Supreme Court in 2021, Wikimedia Commons

Although Democrats have won the popular vote in seven of the United States’ last eight presidential races, they've had terrible luck where the U.S. Supreme Court is concerned. Six of the nine justices were appointed by Republican presidents, half of those six by one-term former President Donald Trump. And the most hard-right High Court in generations, Reuters reporters Lawrence Hurley and Andrew Chung stress in an article published on January 25, is going out of its way to inflame culture war issues.

“The Court has become increasingly assertive since the addition of former President Donald Trump's third appointee, Amy Coney Barrett in 2020 gave the nation's top judicial body a 6-3 conservative majority,” Hurley and Chung explain. “Her appointment changed the Court's dynamics by marginalizing Chief Justice John Roberts, considered an incrementalist conservative.”

After Justice Ruth Bader Ginsburg’s death in 2020, Trump and then-Senate Majority Leader Mitch McConnell saw to it that a liberal was replaced by a far-right social conservative along the lines of Justice Clarence Thomas: Barrett. Another game changer was the retirement of Justice Anthony Kennedy in 2018.

While Ronald Reagan appointee Kennedy was a libertarian with views that were fiscally conservative but socially liberal, his replacement, Justice Brett Kavanaugh, is much more of a social conservative. And this edition of the High Court is likely to overturn Roe v. Wade, resulting in abortion being outlawed in a long list of red states.

The Barrett-era Court also poses a threat to everything from affirmative action to environmental laws to gay rights.

Elizabeth Wydra, president of the liberal Constitutional Accountability Center, told Reuters, “This particular six-justice majority seems willing to push ahead in an aggressively conservative direction on multiple fronts, without feeling the need to be moderated by concepts of judicial restraint, stare decisis or incrementalism.”

In Latin, stare decisis means “let the decision rest” or “let the decision stand” — in other words, respect for precedent. During Kavanaugh’s Senate confirmation hearings, Sen. Susan Collins of Maine (a pro-choice conservative Republican) insisted that Kavanaugh respected precedent and considered Roe v. Wade “settled law.” But if Kavanaugh votes to overturn Roe, it will be painfully obvious that Collins was wrong.

Hurley and Chung observe, “Based on oral arguments held last year, the Court's conservatives seem poised, in a case from Mississippi, to undermine or even overturn the landmark 1973 Roe v. Wade ruling that legalized abortion nationwide and, in a case from New York, expand the right to carry firearms in public. The Court's increasingly aggressive stance toward taking up new cases signals an emboldened majority accelerating its rightward shift, Court watchers said.”

Jonathan Adler, a law professor at Case Western Reserve University in Cleveland, told Reuters that the Barrett-era High Court appears to be “more willing to reconsider precedent and consider broad questions when the opportunity arises.” And John McGinnis, a law professor at Northwestern University in Evanston, Illinois (a Chicago suburb), noted that Chief Justice John Roberts’ influence on the Court has decreased — telling Reuters, “When Roberts was the median (justice), even the four justices to his right were worried about where he would end up.”

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