Commentary on Political Economy

Thursday 2 September 2021


The US supreme court is now cruel, partisan – and squandering its moral authority

Robert Reich

Americans didn’t always agree with the court’s conclusions, but they respected it. That’s changing now

‘Cruelty toward the powerless is a defining feature of the court.’

The US supreme court won’t block a Texas law that allows private individuals to sue to enforce a ban on abortion after about six weeks of pregnancy – before many women are even aware they’re pregnant. The law went into effect Wednesday.

It’s the most restrictive abortion law in the country, imposing a huge burden on women without the means or money to travel to another state where abortions remain legal.

It’s also a sure sign that the court’s Republican-appointed justices, who now hold six of nine seats, are ready to overturn the court’s 1973 decision in Roe v Wade, striking down anti-abortion laws across the nation as violating a woman’s right to privacy under the 14th amendment to the constitution.

Last week the court held that Biden’s moratorium on evictions was illegal. A few days before, it refused to stay a lower court decision that people seeking asylum at the southern border must remain in Mexico until their cases are heard – often subjecting them to great hardship or violence.

What links these cases? Cruelty toward the powerless.

I remember a very different supreme court which I had the honor of arguing cases before, almost 50 years ago. It embodied the idea that the fundamental role of the supreme court is to balance the scales in favor of those who were powerless. The other two branches of government couldn’t be relied on to do that.

Even Nixon appointees Harry Blackman, Lewis Powell and Warren Burger understood that role. Blackman wrote the court’s decision in Roe v Wade, and Powell and Burger joined him, as did four Democratic appointees to the court – William O Douglas, Thurgood Marshall, William Brennan and Potter Stewart.

I don’t remember the cases I argued. They were insignificant. I was a rookie in the justice department who was given either sure winners or sure losers to argue. But I especially recall Douglas, who had recently suffered a stroke and was in obvious discomfort, looking sharply at me as I made my arguments.

I was awed. Here was the justice who wrote the 1965 decision in Griswold v Connecticut, finding that a constitutional right to privacy forbids states from banning contraception. The man who argued the Vietnam war was illegal and issued an order that temporarily blocked sending Army reservists to Vietnam. The justice who wrote in the 1972 case Sierra Club v Morton that any part of nature feeling the destructive pressure of modern technology should have standing to sue in court – including rivers, lakes, trees and even the air – because if corporations (which are legal fictions) have standing, shouldn’t the natural world?

Sitting not far away from him was Thurgood Marshall – who succeeded in having the supreme court declare segregated public schools unconstitutional, in the landmark 1954 case Brown v Board of Education, and who did more than any person then alive to break down the shameful legal edifice of Jim Crow.

Today’s supreme court majority is a group of knee-jerk conservatives whose intellectual leader (to the extent they have one) is Samuel Alito, perhaps the most conceptually rigid and cognitively dishonest justice since Chief Justice Roger Taney.

Five of today’s supreme court majority were appointed by presidents who lost the popular vote; three of them by a president who instigated a coup against the United States.

The authority of the supreme court derives entirely from Americans’ confidence and trust in it. As Alexander Hamilton wrote in the Federalist Papers 78, the judiciary has “neither the sword” (the executive branch’s power to compel action) “or the purse” (the Congress’s power to appropriate funds).

The court I was privileged to argue before almost 50 years ago had significant moral authority. It protected the less powerful with arguments that resonated with the core values of the nation. Americans didn’t always agree with its conclusions, but they respected it.

Today’s cruel and partisan supreme court is squandering what remains of its moral authority.

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