Editorial: Court leak suggests rights are in limbo

Published: 5/15/2022 6:02:05 AM
Modified: 5/15/2022 6:00:18 AM

Soon after word leaked out that the U.S. Supreme Court was on the verge of extinguishing the constitutional right to abortion, widespread protests erupted, including one in Hanover, at which both sorrow and anger were expressed at the prospective overturning of Roe v. Wade. One Dartmouth freshman told The Associated Press, “I didn’t realize how vulnerable this was. It’s just really heartbreaking.”

Abortion rights aren’t the only ones vulnerable to the current court’s theocratic wing.

The same reasoning that underpins the immolation of Roe in Justice Samuel Alito’s draft majority decision could well apply to other precedents now deemed to be settled law, including the right to same sex marriage and contraception.

This may seem a surprising development, but really it isn’t. Through the long sweep of the nation’s history, the Supreme Court has frequently sided with the most reactionary forces abroad in the country.

Examples? Here are just a few of the court’s greatest hit jobs.

In Dred Scott v. Sandford, in which the enslaved Scott sued for his freedom because he had been brought into free territory, Chief Justice Roger Taney in 1857 pronounced that Black people “had no rights which the white man was bound to respect.”

The effects of this decision were profound. Civil War soon followed.

Forty years later, in the aftermath of that bloody conflict, the court in Plessy v. Ferguson upheld state racial segregation laws under the doctrine of “separate but equal” and validated Jim Crow as the law of the land.

In Lochner v. New York, the court in 1905 denied that governments had the power to regulate wages and hours, and in 1918 ruled that Congress could not ban child labor under the Constitution’s Commerce Clause.

In Buck v. Bell, a 1927 case, the court upheld the forced sterilization of people with intellectual disabilities. Justice Oliver Wendell Holmes Jr., writing for the 8-1 majority, declared “society can prevent those who are manifestly unfit from continuing their kind,” concluding that “three generations of imbeciles are enough.”

During World War II, the court notoriously found in Korematsu v. United States that internment of Japanese-American citizens was warranted to protect against the threat of espionage.

The list of horrible decisions goes on and on, including the campaign finance rulings in Buckley v. Valeo and Citizens United v. FEC, which opened the floodgates to unlimited campaign spending and contributions, respectively.

The court, of course, has had its shining moments too, and many of the awful decisions we cited have been overturned. The point is that the court has often been egregiously wrong, and when it errs, it usually errs on the side of the strong over the weak — white over Black, wealth over poverty, capital over labor, straight over gay, men over women. If Roe is overturned, one might well conclude that the court’s majority believes women have no right to bodily autonomy that men are bound to respect.

Relying too much on the current Supreme Court to protect individual liberties and reflect democratic values is perilous. An alternative course is to secure the freedoms now taken for granted through the political process, where the will of the majority can ultimately prevail. Surveys suggest that a solid majority of Americans supports the right to abortion. Those who feel the strongest about the importance of preserving that right need to mobilize that majority to secure it.

In the short term, that could take the form of efforts to turn out of office state legislators hostile to abortion and pass state-by-state legislation to protect abortion rights. In the longer term, it also requires electing presidents who will appoint to the federal bench, and senators who will confirm, judges whose outlook is shaped by the realities of American life in the 21st century, rather than those who look to 18th- or 19th century thought as their sole guide to judicial interpretation. Finally, it may require a constitutional amendment that explicitly formulates what is already implicit in the Constitution: a broadly formulated right to privacy.    




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