A decade ago, the idea that a radical Supreme Court would remake our country might have seemed hyperbolic. But that’s exactly what happened. In just the past two terms, the Trumpified Supreme Court ended women’s constitutional right to an abortion, limited the state of New York’s ability to limit concealed carry firearms, struck down affirmative action in college admissions, blocked Joe Biden’s student-debt forgiveness plan, squashed the separation of church and state in a school-prayer case, gutted the Clean Water Act, and backed LGBTQ+ discrimination. This Supreme Court is so deeply emboldened to reshape society that one can’t help but be relieved when they don’t completely shred the Voting Rights Act or when the majority of justices—though not all of them—reject a fringe, right-wing legal theory that could blow up elections in America.
Some of us saw the possibility of what a conservative majority could do, but I have to admit, I didn’t think Donald Trump would manage to install three Supreme Court justices in four years. Sure, the winner of the November 2016 presidential election would get to at least fill the Antonin Scalia seat, which had been held open since the previous February, as Mitch McConnell blocked then president Barack Obama from filling it. During the final presidential debate between Trump and Hillary Clinton, in October 2016, moderator Chris Wallace mused that the winner could potentially make “two or three appointments” and “in effect determine the balance of the court for what could be the next quarter century.”
The person who really saw this coming that election year, and tried warning voters, was Clinton. In a Wisconsin speech, she said that the Supreme Court was “at its best, the Court is a place where the least powerful voices in our society are heard and protected,” including those of African Americans “fighting for the right to vote,” or women demanding abortion rights in the face of “humiliating laws that would strip that right away.” So far, we have seen this Supreme Court sign off on those “humiliating laws”; you’ll recall this Supreme Court allowed Texas’s draconian SB8, a precursor to Dobbs, to continue. That law allowed for bounties and citizen enforcement to restrict abortion. Hard to think of a more humiliating law than treating women like criminals when they want to make choices about their own bodies.
The Supreme Court, Clinton said in that final 2016 debate with Trump, “really raises the central issue in this election.”
“Namely,” she continued, “what kind of country are we going to be? What kind of opportunities will we provide for our citizens? What kind of rights will Americans have? And I feel strongly that the Supreme Court needs to stand on the side of the American people, not on the side of the powerful corporations and the wealthy. For me, that means that we need a Supreme Court that will stand up on behalf of of women’s rights, on behalf of the rights of the LGBT community, that will stand up and say no to Citizens United, a decision that has undermined the election system in our country because of the way it permits dark, unaccountable money to come into our electoral system.”
Nine years later these words pierce the flesh.
Because every June is now an exercise in waiting to see what we’ve lost or what we’re about to lose. A year ago, in their joint Dobbs dissent, justices Sonia Sotomayor, Elena Kagan, and former justice Stephen Breyer wrote that the ruling “breaches a core rule-of-law principle, designed to promote constancy in the law…. It places in jeopardy other rights, from contraception to same-sex intimacy and marriage. And finally, it undermines the Court’s legitimacy.” Sotomayor warned earlier during oral arguments in Dobbs about how the Court’s right-wing trajectory could damage public opinion. “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” she asked.
Turns out the answer was a resounding ‘No’ with the Supreme Court being as unpopular as it’s ever been.
And then there are the numerous ethical lapses that conservative justices’ have been accused of. Billionaire Harlan Crow bought Clarence Thomas’s mom’s house and renovated it. Crow also paid for Thomas’s grandnephew to go to private school and took the justice on private jet and yacht trips over two decades. There was also Neil Gorsuch becoming embroiled in scandal over his sale of a property to the head of a powerful law firm that has argued cases before the Supreme Court. Most recently, Samuel Alito defended his own private-jet trip with the laughable excuse that he only occupied “a seat that, as far as I am aware, would have otherwise been vacant.”
Alito decided to get ahead of the scandal by writing an opinion piece in the brain-worms-ridden opinion section of the Rupert Murdoch–owned Wall Street Journal editorial page. “ProPublica has leveled two charges against me: first, that I should have recused in matters in which an entity connected with Paul Singer was a party and, second, that I was obligated to list certain items as gifts on my 2008 Financial Disclose Report. Neither charge is valid,” he wrote.
Yeah, totally normal behavior for Supreme Court justices. Meanwhile, Chief Justice John Roberts has refused to testify before Congress as it probes Supreme Court ethics issues and seems to think Americans should simply trust the Court to fix its own legitimacy mess. But Congress is the body that would, ideally, hold a rogue Court in check.
“Historically, Congress has exercised an array of powers to hold the Court accountable—from exercising more control over the Court’s docket to taking jurisdiction away over certain cases to requiring the justices to travel around the country to docking the Court’s budget to canceling the Court’s entire Term one year,” University of Texas School of Law professor professor Stephen Vladeck told me. “These powers have constitutional limits, but there’s an enormous amount of authority Congress could exercise over the Court before it came within a lightyear of those limits.”
As Hillary Clinton predicted, we are now a country that needs protection from our rogue judiciary. Congress can provide this protection, but only if there is the will to. The American people need to continue to pressure our elected officials to hold this extremist and ethically challenged Court accountable before it’s too late—if it isn’t already.
Molly Jong-Fast
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