This week, the right-wing majority on the Supreme Court ignored precedent and trampled law and legal procedure to gut the Environmental Protection Agency’s primary mission: the ability to curb pollution of harmful substances. It thereby erected a judicial roadblock to dealing with catastrophic climate change even as the alarming threat grows worse.
The Court zealots reached their decision even though there was no regulation in place for the Court to review, thereby scorning the very basis of judicial authority – that it is reviewing a case or controversy. The majority, as Justice Elena Kagan wrote in her dissent, “could not wait – even to see what the new rule says – to constrain EPA’s efforts to address climate change.”
The majority reached a decision, despite the fact that the very text of the statute – the Clean Air Act – clearly gives EPA the authority to act to regulate emissions. As Kagan wrote, “the current court [majority] is textualists only when it suits it.” When a text conflicts with its broader ideological goals, it simply invents doctrines that it uses to ignore the congressional will.
This example of judicial wilding comes on the heels of Justice Alito’s venomous reversal of Roe v. Wade, stripping women of a right that had been confirmed by the Supreme Court for a half a century.
Next up, the Court’s majority announced that it would hear a case giving state legislatures the right to make rules for elections, even if they violate state constitutions. That would open up elections to the very tampering that Donald Trump sought in overturning the 2022 presidential election on the basis of utterly unfounded charges of fraud.
A majority of unelected judges – four of whom were appointed by presidents who lost the majority vote – is intent on creating their own America. The historian Heather Cox Richardson recalled the statement of Sen. Edward Kennedy when the Senate voted to deny a right-wing ideologue, Robert Bork, a seat on the Court:
“Robert Bork’s America is a land in which,
Women would be forced into back-alley abortions,
Blacks would sit at segregated lunch counters,
rogue police could break down citizens’ doors in midnight raids, Schoolchildren could not be taught about evolution,
Writers and artists would be censored at the whim of government, and
The doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.”
“America is a better and freer nation than Robert Bork thinks,” Kennedy said. Now, however, six Bork equivalents drive a Court majority that is hellbent on turning us into Robert Bork’s America.
The only recourse to a Court run wild is democracy. But the Court, in a series of decisions, has undermined our democracy. It decided that money was speech, opening the doors to the big money politics that distorts our elections. It decided that corporations were persons, empowering corporations to throw unlimited money into elections. It decided–not to limit partisan gerrymandering, even if it led to utterly mis-representative legislatures, often sabotaging the votes of people of color. It gutted the Voting Rights Act, even though the Congress had just re-authorized it by overwhelming bipartisan majorities. Now it is on the verge of allowing state legislatures – because Republicans control 30 of them – to set election rules that violate even state constitutions.
These ruinous decisions are the modern-day equivalent of the disastrous Supreme Court decisions that added to the tensions that led to the Civil War and after the war, embraced “separate but equal” – the invented doctrine of that legalized segregation — American apartheid for 100 years.
Are we a “Better America” than Robert Bork’s America?
The modern-day Robert Borks are putting that to the test. Will Americans turn out to vote in large numbers to overcome the obstacles and big money that the Court puts in the way of democracy? Will citizen majorities reassert the power of the EPA to address climate change, to revive the protections of the Voting Rights Act, to limit the scourge of big and dark money on our politics, to protect the right of women to control their bodies?
Will we elect congressional majorities willing finally to limit the threat posed by this judicial wilding? Various reforms are sensible:
Impose term limits on judges so that they cannot counter the overwhelming majority for decades at a time.
Expand the number of justices so that the three appointed by minority presidents can’t speak for the majority.
Restate clearly Congress’s imperative need to delegate authority to expert agencies and force the Court to reverse its utterly unprincipled decision.
What’s clear is that an unelected majority on the Supreme Court has launched a right-wing crusade that threatens basic rights and the core principles of the America a vast majority supports. Now that majority must mobilize, vote and speak clearly to demand that course be reversed.
You can write to the Rev. Jesse Jackson in care of this newspaper or by email at jjackson@rainbowpush.org. Follow him on Twitter @RevJJackson.
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