The decision of the U.S. Supreme Court on Friday in the case of Dobbs v. Jackson Women’s Health Organization which overturned Roe vs. Wade was only the ignominious end of a week of Supreme Court decisions which will change the character and nature of American society. The decision in the Dobbs case, which had been anticipated since an advance copy of the opinion was leaked in May, together with the Court’s opinion on Tuesday in the Clark vs.Makin decision impacting separation of church and state and Wednesday’s decision in New York State Rife & Pistol Association vs. Bruen on carrying concealed weapons, together set back American constitutional law more than 150 years.
While the Dobbs opinion overturning Roe rightfully drew most of the attention, the Court’s decision in the Bruen case is equally frightening. While the nation is still mourning the latest tragedy in the horrific murder of schoolchildren in Uvalde, Texas, the Court jumped into the gun control debate once again. Continuing to espouse an individual’s “right to bear arms”, the Court ruled that the Second Amendment of the Constitution guaranteed an individual the right to carry a concealed weapon. New York’s law requiring individuals to demonstrate a need to bear a concealed weapon, now was declared to be a violation of the Constitution.
The Court began its momentous week by deciding that a law (in Maine) which prohibited the use of state funds in parochial schools was a violation of the First Amendment’s guarantee of an individual’s right to the “free exercise” of their religion. While not as dramatic as Dobbs and Bruen, the case of Carson vs. Makin constituted another step back by the Court after decades of decisions which had affirmed the established constitutional interpretation regarding separation of church and state.
The picture that all these decisions represent present a challenge to the fundamental values in American society which have been presumed and accepted by the American people for decades. Constitutional lawyers and scholars will debate the subtleties in the opinions and how to legally proceed to reinstate or reverse some of these decisions; but their immediate impact is evident.
The Court has shaken up American life. It has intruded into family life. The Justices gave allowances to the place that the State can play in religion in everyday life as it impacts children’s education. Finally, the Court added an additional level of fear of guns in the daily life of all citizens in an already exceedingly violent society.
The Supreme Court’s decisions come just as Americans are coming to grips with the importance and implications of the January 6, 2021, insurrection. Violence is everywhere, at home and abroad. Democracies around the world can only ponder what has made this country willing to outlaw a women’s right to choose whether she wishes to have an abortion or not, while at the same time expanding the availability of concealed weapons.
The response to these decisions can now—in the short term—come only at the ballot box. Elected officials and candidates for public office, at all levels, need to be held accountable to the voters for their positions on all these issues. All candidates in the mid-term elections this November need to be put on record as to their position on “a woman’s right to choose”, “gun laws”, and church and state.
Federal court appointments will rest on future Court nominees approved by the Senate, while, in the short run, only Congress now can begin to reverse the impact of the Dobbs decision. The power that Democrats have lost in the control of state government and critical state legislatures, as well as the recent reapportionment, will take years to reverse. The problem that the Democrats now face in the mid-terms is that they need to reverse a long accepted political axiom, that America always votes it pocket book, which at the moment is hemorrhaging.
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But There is an Even Scarier Footnote
In legal and political terms, the most frightening part of the Court’s opinion in the Dobbs case was the concurring remarks of Justice Clarence Thomas. In unequivocal terms, Thomas made clear that he and those who supported his legal thinking were just at the beginning of their effort to dismantle the entire array of substantive procedural rights’ decisions which have been the bedrock of the Court’s understanding for generations. Explicit in Thomas’s words was his commitment to seek every opportunity to roll back individual rights and liberties which had not been set in place by the Founding Fathers. As has been pointed out elsewhere, Thomas was issuing a battleplan for SCOTUS as well as for all the lower courts, many of which now have seats occupied by his former clerks or acolytes.
Recent Supreme Court decisions are appalling and merit strong appeals. Evidently, the current conservative majority has discarded stare decisis and opted for finagler's constant. Once, the most admired institution in our nation according to many national polls in the 1960s, the current court has fallen to lower depths that not even Maxim Gorky could imagine. Thanks for another luminous article. Cry the beloved country!