Dear John,
It is time to outright reject the characterization of this Supreme Court as composed of a conservative majority and liberal minority. The Court has demonstrated that it is now dominated by ideologs with an agenda to remove rights and protections carefully developed and built upon over decades of jurisprudence.
Throughout his presidency, Donald Trump maintained a list of lawyers from which he chose his SCOTUS nominees. Key Federalist Society players had major roles in the vetting to ensure nominees had a demonstrated commitment to originalism and textualism in interpreting the Constitution. The plan to build upon the ideology of Justices Alito and Thomas had been long-standing and well-executed.
Former Senate Leader McConnell blocked President Obama’s appointment of a moderate Justice nearly a year in advance of the 2016 election, and then rushed through another nominee while the country was actually voting in 2020. By refusing to observe long-established norms, McConnell and Trump succeeded in cementing the Court with a supermajority of hand-picked activists committed to undoing decades of Constitutional protections.
Continuing their march that began last summer when SCOTUS overturned the right to an abortion in this country, these Justices have delivered for their benefactors this term, at the expense of the Court’s legitimacy. In an appalling decision that further feeds the anti-LGBTQ+ sentiment sweeping this country, the Supreme Court ignored principles of standing and then relied on the First Amendment to allow a business owner to openly discriminate. By eliminating affirmative action in college admissions, the Justices ignored a mountain of research demonstrating their decision was wrong on the law and the merits. And by committing itself to the primacy of business interests, the Court wiped out decades of environmental protection for our waterways.
In carrying out this agenda, the Justices have eviscerated the stability critical to a legitimate Supreme Court. They have undermined long-standing principles of law such as standing and precedent. And they are contributing to – indeed shaping – a culture where people and rights do not matter, furthering discrimination by those who now feel they can do so with impunity.
This column by our colleague, Dennis Aftergut, addresses the extremism of today’s decisions and how we got here.
Our response to this Court’s evisceration of rights cannot be despair. It must, instead, be a call to action to the legal profession. Protecting the Constitution and the rule of law is nonpartisan and nonpolitical. Indeed, it is an obligation embedded in the oath that lawyers take.
