The Supreme Court’s extremist six-member majority has now handed down several landmark rulings, overturning decades of precedents and settled law on abortion rights, restrictions on guns in New York state, weakening the EPA’s ability to regulate pollution and carbon emissions, further tearing down the separation between church and state, and removing accountability for police officers who fail to give criminal suspects their Miranda warnings on the right to remain silent after arrest.
This initial set of rulings by the high court may just be the beginning of a full-scale attack on individual rights and the government’s ability to regulate corporate abuses that have been won over many decades. There’s growing concern across the U.S. that the Supreme Court could, in the near future, strike down laws protecting contraception access, same sex relationships and gay marriage.
Between The Lines’ Scott Harris spoke with Bill Blum, a Los Angeles attorney and a former state of California administrative law judge, who talks about the Supreme Court’s current multi-pronged attack on individual rights and government regulatory authority – and the power citizens have to resist the erosion of justice and liberty.
BILL BLUM: Clarence Thomas is a barometer that people look to for where the right-wing is headed. And in his concurring opinion, in the Dobbs case — that’s the abortion case, he said that the court should reconsider a variety of privacy-based, substantive due process rights, which are not specifically mentioned in the Constitution, or what we call unenumerated rights. And specifically, he singled out the right to contraception that’s protected under Griswold v. Connecticut; the right to sexual intimacy protected by Lawrence v. Texas, and the right to same-sex marriage, Obergefell v. Hodges.
So Clarence wants to revisit and overturn all of those precedents, but he doesn’t want to stop there. Clarence Thomas wants to overturn the First Amendment defamation protections set forth by a case called New York Times v. Sullivan that goes all the way back to 1964. Of course he wants to overturn affirmative action. And most recently, the court has taken up a case from North Carolina, which raises the theory of the independent state legislature when it comes to overturning or intervening in the outcome of elections.
And that could be the most dangerous case of all, because it coincides with and will meld with the efforts to overturn the next election. So what that theory basically says is that the Constitution, by two clauses in Article One, and Article Two gives the state legislatures sole authority to determine the outcome of elections within their jurisdiction. That’s really a phony and very weak argument, but that’s an argument that is gaining steam.
And the court has now agreed to hear this case Moore v. Harper. And it’s feared that they will use that case as a vehicle to promote this idea. The idea first surfaced in concurring opinions in Bush v. Gore back in 2000. And it’s really been a dormant, marginalized idea, but it now has been revived. And so now with this solid 6-3 majority on the court really are no out of bounds to what this majority could do, wielding its really supreme authority, no pun intended, because the decisions of the Supreme Court are not reviewable within our legal system.
So there really isn’t any endpoint other than what these justices think is the right and proper thing to do.
SCOTT HARRIS: Bill, that’s a pretty bleak picture in your view. What can be done to rein in this extremist Supreme Court and the decisions they have already made and the rulings yet to come that seemingly want to revisit all the rights one for, you know, 100 years or more?
BILL BLUM: Well, the answer is really political. It’s not strictly legal because there’s no way to overturn a Supreme Court decision. You can do various end runs around a Supreme Court decision through legislation. So in the abortion area, you could conceivably have a federal abortion rights statute. But there are tremendous obstacles to doing that. First of all, you have to overcome the filibuster in the Senate.
And the Democrats at present don’t even have 50 votes to do that. That avenue right now isn’t available. I think that this struggle is going to be a long-term one. People have to understand that even though Alexander Hamilton termed the judiciary the least dangerous branch of government, it has become the most dangerous branch domestically because of its unchecked power.
But the people still have the ultimate power in this country. We have to recognize that who sits on courts is very, very important. And we have to build majorities, strong majorities, to return control of the Senate to the Democrats. I mean, I wish that there was a more progressive alternative to the Democratic party, but there isn’t. And we have to understand that while the Supreme Court has the last word under our constitutional system, we don’t have to accept these decisions.
We don’t have to believe that they’re correct. We can hold the justices accountable by reminding them every day that they are supposed to be public servants, not kings, sitting on high, you know, making rules and issuing edicts, ex cathedra for all of us to obey. Those justices are very concerned right now with their legitimacy. Many of them have given public talks about the court losing its popularity, the court losing its legitimacy in the eyes of the public.
And they’re bringing that crisis on themselves. And I think that it’s up to all of us to hold them accountable. This is going to be a real long struggle.
For more information, visit Bill Blum’s website at roundtable.io/blumslaw.
Listen to Scott Harris’ in-depth interview with Bill Blum (16:18) and see more articles and opinion pieces in the Related Links section of this page.
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