By Linda Greenhouse
Contributing Opinion Writer
When the Supreme Court overturned a 41-year precedent three years ago and ruled that public employees have a right under the First Amendment’s free speech guarantee not to pay union dues, Justice Elena Kagan accused the 5-to-4 majority of “weaponizing the First Amendment” to serve its anti-labor agenda.
Her powerful dissenting opinion in Janus v. American Federation of State, County and Municipal Employees helped propel the “weaponizing” image into circulation as an apt description of how the court’s conservatives were hijacking the First Amendment and converting it into a tool of deregulation.
Now it’s the Supreme Court itself that has been weaponized.
With the accuracy of a drone strike, the three justices appointed by President Donald Trump and strong-armed through to confirmation by Senator Mitch McConnell, then the majority leader, are doing exactly what they were sent to the court to do.
The resulting path of destruction of settled precedent and long-established norms is breathtaking. Despite the increasingly plaintive reminders by Chief Justice John Roberts that, as he wrote in dissent in the Texas abortion case last week, “it is the role of the Supreme Court in our constitutional system that is at stake,” the new majority has refused to defend the supremacy of federal law in the face of open defiance by Texas. The court’s acquiescence has left that state’s abortion clinics all but shuttered for months, with pregnant women fleeing to seek care in numbers that are destabilizing the abortion infrastructure in states hundreds of miles from the Texas border.
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The imminent evisceration of the constitutional right to abortion, clearly apparent from the Dec. 1 argument in the Mississippi abortion case, is only the beginning. The argument last month in a case from New York on how strictly a state can regulate the carrying of concealed weapons strongly suggested that the court will expand the boundaries of the Second Amendment well beyond the 2008 Heller decision, which found a right to keep a handgun at home for self-defense and was itself a transformation of the long- established understanding that the amendment protected a collective right rather than an individual one.
Last week’s argument in a religion case from Maine indicated that a decades-old understanding about the extent to which religious schools can lay claim to taxpayer support is similarly about to be shattered.
Further, the justices will soon decide whether to add affirmative action to the smoldering culture war that is the current Supreme Court term. The fact that the high-profile case against Harvard’s admission policies went down to defeat in two lower federal courts, and that it even lacks an actual plaintiff who can claim to have been injured by Harvard, is not likely to deter a bloc that finally — following the retirement of Justice Anthony Kennedy and the death of Justice Ruth Bader Ginsburg — has the votes to put an end to race consciousness in university admissions.
Individually, these cases have not lacked for public attention (although the religion case, Carson v. Makin, merits a good deal more than it has received, for reasons I’ll explain). But it’s putting them together, and understanding how they found their way to the court’s docket within months of Amy Coney Barrett’s confirmation, that tells the story. The New York gun case, the Mississippi abortion case and the religion case from Maine were each handpicked by the justices (an act that requires the votes of four of the nine) from among the thousands of cases the court receives each term — 5,227 in the last term, to be precise.
Each involves a touchstone issue for conservatives: easing restrictions on firearms, overturning Roe v. Wade and elevating the place of religion in a secular society, in part by granting entitlement to public benefits as a matter of equal treatment.
Mississippi had actually filed its abortion appeal in the previous term, in June 2020, when Justice Ginsburg was still alive, but it wasn’t until nearly a year later, this past May, that the court agreed to hear it. The case, Dobbs v. Jackson Women’s Health Organization, met none of the usual criteria for deciding whether to hear a case: In overturning the state’s ban on abortion after 15 weeks of pregnancy, the United States Court of Appeals for the Fifth Circuit simply applied binding precedent, and there was no dispute among the lower federal courts for the Supreme Court to resolve. What the case offered was a vehicle the newly empowered anti-abortion supermajority was waiting for.
Contributing Opinion Writer
When the Supreme Court overturned a 41-year precedent three years ago and ruled that public employees have a right under the First Amendment’s free speech guarantee not to pay union dues, Justice Elena Kagan accused the 5-to-4 majority of “weaponizing the First Amendment” to serve its anti-labor agenda.
Her powerful dissenting opinion in Janus v. American Federation of State, County and Municipal Employees helped propel the “weaponizing” image into circulation as an apt description of how the court’s conservatives were hijacking the First Amendment and converting it into a tool of deregulation.
Now it’s the Supreme Court itself that has been weaponized.
With the accuracy of a drone strike, the three justices appointed by President Donald Trump and strong-armed through to confirmation by Senator Mitch McConnell, then the majority leader, are doing exactly what they were sent to the court to do.
The resulting path of destruction of settled precedent and long-established norms is breathtaking. Despite the increasingly plaintive reminders by Chief Justice John Roberts that, as he wrote in dissent in the Texas abortion case last week, “it is the role of the Supreme Court in our constitutional system that is at stake,” the new majority has refused to defend the supremacy of federal law in the face of open defiance by Texas. The court’s acquiescence has left that state’s abortion clinics all but shuttered for months, with pregnant women fleeing to seek care in numbers that are destabilizing the abortion infrastructure in states hundreds of miles from the Texas border.
Advertisement
Continue reading the main story
The imminent evisceration of the constitutional right to abortion, clearly apparent from the Dec. 1 argument in the Mississippi abortion case, is only the beginning. The argument last month in a case from New York on how strictly a state can regulate the carrying of concealed weapons strongly suggested that the court will expand the boundaries of the Second Amendment well beyond the 2008 Heller decision, which found a right to keep a handgun at home for self-defense and was itself a transformation of the long- established understanding that the amendment protected a collective right rather than an individual one.
Last week’s argument in a religion case from Maine indicated that a decades-old understanding about the extent to which religious schools can lay claim to taxpayer support is similarly about to be shattered.
Further, the justices will soon decide whether to add affirmative action to the smoldering culture war that is the current Supreme Court term. The fact that the high-profile case against Harvard’s admission policies went down to defeat in two lower federal courts, and that it even lacks an actual plaintiff who can claim to have been injured by Harvard, is not likely to deter a bloc that finally — following the retirement of Justice Anthony Kennedy and the death of Justice Ruth Bader Ginsburg — has the votes to put an end to race consciousness in university admissions.
Individually, these cases have not lacked for public attention (although the religion case, Carson v. Makin, merits a good deal more than it has received, for reasons I’ll explain). But it’s putting them together, and understanding how they found their way to the court’s docket within months of Amy Coney Barrett’s confirmation, that tells the story. The New York gun case, the Mississippi abortion case and the religion case from Maine were each handpicked by the justices (an act that requires the votes of four of the nine) from among the thousands of cases the court receives each term — 5,227 in the last term, to be precise.
Each involves a touchstone issue for conservatives: easing restrictions on firearms, overturning Roe v. Wade and elevating the place of religion in a secular society, in part by granting entitlement to public benefits as a matter of equal treatment.
Mississippi had actually filed its abortion appeal in the previous term, in June 2020, when Justice Ginsburg was still alive, but it wasn’t until nearly a year later, this past May, that the court agreed to hear it. The case, Dobbs v. Jackson Women’s Health Organization, met none of the usual criteria for deciding whether to hear a case: In overturning the state’s ban on abortion after 15 weeks of pregnancy, the United States Court of Appeals for the Fifth Circuit simply applied binding precedent, and there was no dispute among the lower federal courts for the Supreme Court to resolve. What the case offered was a vehicle the newly empowered anti-abortion supermajority was waiting for.
Opinion | The Supreme Court, Weaponized
The three justices appointed by Trump are doing exactly what they were sent to the court to do.
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