Destroying America from within

Over the course of the past week, the court handed down three landmark decisions, each disastrous in its own right. But taken together they reveal a dangerously hidebound court intent on turning the constitution into an instrument of obstruction, a formidable obstacle to solving some of the nation’s most pressing problems.

First, in New York State Rifle v Bruen, the court, by a 6-3 vote, struck down a New York law that required a person demonstrate “proper cause” to carry a concealed handgun.

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A day after its emphatic defense of a right never recognized in over 200 years of constitutional jurisprudence, the court brazenly eliminated a constitutional right that had stood for half a century. In its decision in Dobbs v Women’s Health, overturning Roe v Wade, the court demonstrated how inaptly the label “conservative” applies to the present six-person majority. There is nothing conservative about a court willing to upset established precedent and to radically purge the constitution of a right that had been recognized and affirmed by numerous justices over the course of decades.

Roe, for whatever its weaknesses, recognized that while states have an interest in protecting unborn life, women have a right to “bodily integrity” and “personal autonomy in matters of family” that includes the right to terminate a pregnancy. Roe demanded a delicate act of balancing the state’s interest against a woman’s right, a balance that the court has now eliminated. [...] How a woman deals with an unwanted pregnancy is no longer an issue of personal choice; it is a matter of state control.

Those who defend the Dobbs decision as simply returning the abortion issue to the democratic process (the same democratic process that cannot be trusted when it comes to matters of gun control), overlook the fact that the court has simply eliminated the kind of balancing act often demanded of our most sensitive social problems.

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Finally, in West Virginia v EPA, the same six-person majority held that in passing the Clean Air Act, Congress never granted the Environmental Protection Agency the authority to aggressively regulate the energy industry. While the text of the Clean Air Act authorizes the agency to implement the “best system of emission reduction”, the court concluded that when it comes to “major questions” of “economic and political significance”, Congress must “speak with particular clarity” in authorizing bold regulatory action.

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Never mind that the court invented the “major questions” doctrine out of whole cloth. And never mind that Congress has more than sufficient means for reining in a wayward agency, by, if need be, amending the authorizing statute.

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Congress broadly delegates regulatory power precisely because it lacks the institutional expertise to implement granular and effective policy, and now the court, with even less institutional expertise, installs itself as the last say on the delegated powers of agencies. Most catastrophically, the court’s decision limits the power of the executive branch to address the climate crisis, handing the matter back to a dysfunctional Congress stocked with partisans who continue to deny the very existence of the problem.

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If all this were not bad enough, the court ended its present term by announcing that it had agreed to hear Moore v Harper in the fall. It is widely feared that the case, which involves a North Carolina redistricting plan, will provide the court’s reactionary core the opportunity to adopt the so-called “independent state legislature theory”, a previously fringe notion that the constitution gives state legislatures plenary control over elections, free from the oversight of state courts and regardless of contrary provisions in state constitutions. Adopting this dangerous theory could, for example, give legislators spouting the big lie in swing states the power to determine the outcome of a presidential election.

  Guardian

...but hey, do what you want...you will anyway.