Two years ago, I wrote about my reservations toward Associate Justice Amy Coney Barrett and the future I was afraid of if she was appointed to the Supreme Court. Today, many of these fears have become a reality. On June 24, 2022, Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey, federally eliminating the right to abortion. Associate Justice Clarence Thomas writes a concurring opinion on this case stating his intention for the court to revisit Griswold v. Connecticut which provides the right to contraception, Lawrence v. Texas which made same-sex activity legal and Obergefell v. Hodges which legalized gay marriage. Reproductive rights and being queer are on the chopping block exactly as I feared. I wish I could blame this all on Justices Barrett or Thomas; however, it is not one justice’s doing. The judicial system is flawed and our perception of it allows the harm to continue.
The Supreme Court is the highest court in the United States. It was created by the Constitutional Convention of 1787. It consists of nine judges who are tasked with interpreting the law, determining the constitutionality of the law and its application to specific cases. This is an immense power to bestow on people who are not elected by the American public, but rather by presidential nomination and confirmation of the Senate. This is meant to save the justices from partisan pressure. However, as both the President and the Senate are partisan and the Senate has historically confirmed justices based on political leanings, this may be for naught. However, I have found that the idea of an impartial Court and unbiased justices is widespread.
On my initial article, commenter Eric said, “it [the Court] interpret’s the laws as to constitutionality and legality brought before it and nothing further.” Eric says “nothing further” as if this is some small part of our government, not a massive undertaking where bias and prior beliefs play a role. “Ridiculous. Supreme Court Justices don’t impose their personal agenda on the country. Hasn’t happened since Marbury v. Madison in 1803, and it’s arguable if it occurred then,” commenter Gerry added.
Plainly, the Justices have historically been and currently are partisan positions. Compare Justice Thomas or former Chief Justice William Rehnquist to former Associate Justice William Douglas or former Associate Justice Thurgood Marshall. Respectively, these justices are the most and least conservative that have ever sat on the Court. They have been looking at the same Constitution but have been handing down rulings differently because it is not just the law they are looking at. They are influenced by their biases and beliefs about what the constitution is. UCLA law professor Richard Hansen writes about his fears that the current Court has taken pro-partisanship to the extreme.
With this knowledge, a recent New York Times article by Larry Buchanan fills me with dread for the American public. The article shows how the Supreme Court has carefully crafted their image to be that of their building, not of the people who make up the court. Every article about their decisions includes a photo of a building marked with the words “Equal Justice Under Law.” The culpability of their decisions is not on the people who make them, because they are protected by a facade of impartiality and infallibility. Eric and Gerry are not alone in their idea of the Supreme Court, because of the propaganda we are fed about the Court.
In this past term, the justices have ruled on New York State Rifle & Pistol Association Inc. v. Bruen which deemed a century-old New York law limiting the public carrying of guns unconstitutional. They have also indicated their influence on Medicare and Medicaid programs through Biden v. Missouri, American Hospital Association v. Becerra, Becerra v. Empire Health Foundation and, most recently, Health and Hospital Corporation of Marion County v. Talevski. They also had a hand in the climate crisis through West Virginia v. Environmental Protection Agency where they ruled that the EPA could not cap emissions.
The Supreme Court makes decisions that will shape every American’s future and they are but nine people. They have many believing that they are infallible while they support their beliefs just like the rest of us. The New York Review’s David Cole says it clearly, “Compromise, consensus, and the rule of law are out; the radical exercise of power is in.”
I thought I couldn’t get more scared than I was when the barrage of negative comments reached my Barrett article. But my fear of Eric calling me “Poor little Penelope,” Heartland Patriot saying I’m “absolutely hyperbolic and ridiculous,” A Catholic telling me to “Please repent” or even Dylan calling my writing “sexist garabage” is nothing to how it feels now. Everyone should be terrified at how reproductive rights and simply being queer are up for debate along with healthcare, gun reform and environmental regulations. Whether or not the law protects us is being decided by an extremely partisan group that obfuscates who their intentions behind their neutral rhetoric. V.L. Seek said it perfectly in Roxane Gay’s “Not That Bad,” “We are trapped in a legal system that has never favored women and has never believed survivors.”