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The US Supreme Court's hard right turn

The conservative majority is transforming the country.

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Published
July 1, 2022
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Though it was expected, the shock of the US Supreme Court decision last week to overturn Roe v Wade is still reverberating across the country. It isn’t just that abortion rights are no longer enshrined as a matter of individual choice with constitutional protections. It’s that the high court reversed a landmark precedent—a first—after two justices who voted to do so (Neil Gorsuch and Brett Kavanaugh) had sworn they wouldn’t.

It’s a breach of the trust the American people should be able to have in their highest court.

And so, with the issue now left to state legislation, the country is split in half, with conservative states enforcing some of the most restrictive abortion laws in the world, and liberal ones intent on protecting choice. In its decision, the court questioned, too, the constitutional protection of other hard-earned freedoms, such as same-sex marriage or the right to contraceptives. Should it overturn those precedents next, the gap among states would be even more dramatic.

If the court continues down this path, it will effectively shift the most critical venue of civic engagement from the federal level to state legislatures.

Sure, Congress could codify the right to abortion as it could other rights. But it would need a liberal supermajority, or do away with the filibuster—both unlikely scenarios. Supreme Court reforms aimed at making the institution less partisan also could make a difference, but are just as improbable.

It might take a whole generation for America’s high court to shift away from its current hyper-partisan conservatism. Until then, voters committed to preserving protections for their rights will have to bring the fight to America’s statehouses.

The backstory

  • The Roberts court has seen a rightward lurch. Since the confirmation of chief justice John Roberts in 2005, the US Supreme Court has issued landmark conservative rulings. In D.C. v. Heller, it expanded second amendment rights; in Citizens United v. FEC it applied first amendment protections to corporate political donations; and in Burwell v. Hobby Lobby, it exempted employers, who objected on the basis of religion, from providing contraception coverage to employees.
  • Ginsburg’s death opened the floodgates. The death of justice Ruth Bader Ginsburg in 2020 gave US president Donald Trump his third Supreme Court nominee in a single four-year term. After Republicans stonewalled president Barack Obama’s nomination of Merrick Garland to the court, Trump was able to confirm Neil Gorsuch, Kavanaugh, and—when Ginsburg died—Amy Coney Barrett. Suddenly the 5-4 split that once saw Anthony Kennedy, followed by John Roberts, play swing vote, tilted 6-3 to the conservative side of the bench. Ketanji Brown Jackson, the first Black woman to join the US Supreme Court, was sworn in this past week—though she’s replacing a liberal, so she won’t change the court’s conservative tilt.

Regulatory interlude

The aforementioned ruling in the EPA case sharply curbs the agency’s powers to regulate the volumes of carbon that power plants emit. It forces federal regulators to focus on their authority to regulate individual power plants rather than set broader targets for the electricity sector. Although the decision was narrow in some respects, it pointed to the possibility that the court will chip away at the regulatory state’s ability to do its job. As justice Elena Kagan wrote in her dissent, the conservative majority’s position in this case revealed one of its major goals: to “[p]revent agencies from doing important work, even though that is what Congress directed.”

What to watch for next

  1. More rulings from a conservative court. Coming up on the docket: affirmative action, gay rights, and federal election powers.
  1. States respond to the end of Roe. Californians will vote on an amendment to the state’s constitution securing abortion rights; New York’s legislature is trying to change its constitution to do the same. Meanwhile, abortion bans are going into effect in some red states while courts are suspending them in others.
  1. Democrats reconsider the filibuster. Congress has plenty of ways to rein in the Supreme Court, like impeaching justices or adding them. Biden has urged Democrats to end the filibuster in order to pass abortion rights legislation, but so far he doesn’t have the votes.

One ⚖️ thing

The US Supreme Court appears interested in protecting fewer individual rights, but there is one constituency it’s still looking out for: businesses.

In a 2015 paper (pdf), political scientist Lee Epstein, of Washington University in St. Louis, and her colleagues analyzed the court’s tendency to rule in favor of businesses, using data from 1946 to 2015 and looking only at cases where a business was either petitioner or respondent but not both—meaning that a business was represented on only one side of the case. By doing so, the researchers created what they call a “Business Favorability Index” for the court, which has been rising over time. (Because the study was published in 2015, Trump’s conservative appointees are not included. The dataset also includes considerably fewer cases for the more recently appointed liberals Elena Kagan and Sonia Sotomayor.)

Justices Alito and Roberts are the most likely to side with business.
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5 great stories from elsewhere

🗣️Stories untold. The US is talking about abortion rights, but we need to talk more about abortion stories, says Rebecca Traister in an essay from The Cut. She argues there was a missed opportunity under Roe to destigmatize and normalize conversations about abortion experiences. In the absence of a dialogue about the realities of pregnancy, another kind of storytelling filled the gap, one which has endangered a right to basic medical care access.

🎩 Looking dapper. The “sapeurs” of Brazzaville dress to impress. In a dispatch from Avaunt Magazine, Sophy Roberts travels to the Republic of Congo to learn about this sartorial subculture and meet members of La Sape, short for “Society of Ambiance-Creators and Elegant People.” A distinct ideology that evolved throughout the 20th century, “sapeurism” is more than a fashion statement—its history is also rooted in rebellion against French colonizers.

🍌That’s bananas. As the world faces global supply chains issues, the monopolized shipping industry is making record profits. “This is where the plot ripens,” says ProPublica in an investigation into the hidden shipping fees that are driving up everyone’s supermarket bills. The holdup of 600,000 pounds of bananas last year is a case study of how ocean carriers have been charging “predatory” detention and demurrage fees, and creating ripple effects in prices.

👩‍🎤Setting the record straight. As bands like Nirvana shot into the limelight in the 1990s, women’s bands were marginalized, selling fewer records and receiving reductive media coverage despite having been largely responsible for building the grunge music scene. That disparity continues to this day, says a piece in Longreads which seeks to give voice and recognition to bands like L7 and Heavens to Betsy for pioneering grunge in the face of industry sexism.

🕵️ Super phreak. Susan Headley, a.k.a. Susy Thunder, was a phreaker, computer hacker, and social engineering specialist active in LA in the 1980s. A rock groupie with a penchant for cocaine, tie dye, and BDSM,  she even testified at one point before the US Senate. But then Thunder disappeared. In a sleuthy piece from The Verge and Epic Magazine, Claire L. Evans unwinds the mystery of what happened to a great hacker who fell off the map.

Thanks for reading! And don’t hesitate to reach out with comments, questions, or topics you want to know more about.

Have a just, free weekend,

—Annalisa Merelli, senior reporter

Additional contributions by Scott Nover, Samanth Subramanian, Walter Frick, and Julia Malleck.

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