Bold, confident, conservative Supreme Court ready to move further to the right

This is not the Supreme Court that most Americans know.

Ever since Chief Justice Earl Warren retired in 1969, ending the era of liberal activism, the Supreme Court has been dominated by moderates.

They included Lewis Powellquiet southern lawyer appointed by President Nixon, and Sandra Day O’Connor as well as Anthony M. Kennedyboth nominated by President Reagan.

They were not scientists and did not adhere to the ideology or methodology of solving cases. But to solve the most difficult issues, they brought wisdom and practical experience, and in the case of O’Connor, political know-how. She was the Republican leader of the Arizona Senate before becoming a judge, and she knew how to compromise.

Year after year they kept the court on an average course. Most terms ended with a combination of rulings, some of which pleased the Conservatives, while others encouraged the Liberals.

Everything has changed. There are no more moderates in the middle, as evidenced by the Conservatives’ three big wins this week. Judges on Friday knocked down Rowe vs. Wade, a landmark 1973 opinion establishing a woman’s right to an abortion. This happened a day after they repealed New York City’s age-old law which restricted the carrying of a concealed handgun on the streets. On Tuesday they repealed Maine law which forbade parents from using public assistance to pay for tuition in religious schools.

With the exception of Chief Justice John J. Roberts, Jr., the most conservative justices of the Supreme Court are not interested in finding a middle ground or in keeping with the decisions of past decades. They believe that the correct answer can be found in the “original” history of the Constitution, written in the 18th or 19th century, in an era when women and African Americans had no voice and no voting rights.

Decisions on abortion, guns and religion reflect how far the court has come.

In the fall of 1971, Powell had just been confirmed when the judges were considering abortion. Years ago, he counseled a distraught young man at his law firm who confessed that his girlfriend had died as a result of a botched abortion. The men and women of his time knew such stories of tragic deaths.

To the surprise of his new colleagues, Powell said the abortion laws needed to be changed and he would support a new abortion right. The constitution protects the right to liberty, he said in a 1979 interview, and this includes “the freedom to make certain highly personal decisions that are extremely important to people. It is difficult to think of a decision that would be more personal or important for a pregnant woman than the question of whether she will give birth to a child.

As soon as Powell spoke, it became clear that the majority in the court had ruled that women had the right to choose to have an abortion. And that’s what happened when the court ruled 7-2 in Roe vs. Wade in 1973

Law can be like physics. Every action has an equal and opposite reaction. In this case, shortly after the Supreme Court’s decision, a powerful “right to life” movement arose and found a home in the Republican Party.

Two decades later, the court was reformed by judges appointed by Presidents Reagan and George W. Bush. And it seemed that it was ready to abolish the right to abortion.

But, surprisingly, O’Connor and Kennedy joined the right-wing opinion. Kennedy agonized over the issue of abortion. He was a Catholic who considered abortion to be immoral, but he also believed that the Constitution protected the freedom of the people from the dictates of the government.

This decision in Planned Parenthood vs. Casey came as a shock to the conservative legal movement. The lesson they learned from this was that future Republican appointees should be reliably conservative on abortion. Powerful conservative legal groups such as the Federalist Society began scrubbing the backgrounds of potential Supreme Court justices to make sure they would not back down from Rowe’s ouster.

Among those who passed the test was Samuel A. Alito, Jr., a federal appellate judge who, as a young Reagan administration lawyer, said he looked forward to defending Rowe against Reagan. Wade should be flipped. He was appointed to court in 2006 by President George W. Bush.

Alito favored a 5-4 majority in Friday’s Dobbs v. USA decision. Jackson Women’s Health Organization. According to him, Rowe’s decision was “blatantly wrong” from the start because it cannot be understood that the 14th Amendment to protect freedom and equality in 1868 created the right to abortion.

Near the end of his 79-page opinion, Alito said that state legislatures have almost unlimited power to ban or criminalize abortion. According to him, “the legitimate interests of the state include the respect and preservation of intrauterine life at all stages of development.” There was no mention of possible exceptions in cases of rape, incest, or severe fetal deformities. The court’s other most conservative justices—Clarence Thomas, Neil M. Gorsuch, Brett M. Kavanaugh, and Amy Coney Barrett—joined Alito.

Roberts, perhaps guiding O’Connor and Kennedy, tried to offer a middle ground. “I’d take a more measured course,” he said, backing Mississippi’s 15-week abortion limit but not giving up on Rowe. He said court precedents make it clear that women have a “right to choose” to have an abortion, meaning they should have a “reasonable choice”. By 15 weeks, women know they are pregnant, he said, so the right “doesn’t need to be extended further.”

His proposal could lead to a moderately conservative solution that would be in line with public opinion. Most Americans support early abortion rights, but most say they oppose later abortions. A change of one referee could have changed the outcome, but none of his fellow Conservatives wanted to join the chief referee.

While granting states broad powers to restrict abortion, the court, in its gun ruling, called into question all state and local laws that restrict the use of firearms.

Here, too, the court departed from the moderately conservative position championed by Kennedy.

For most of its history, the Court has held that the 2nd Amendment was intended to ensure that armed citizens could respond to a crisis as part of a “well-regulated militia” and gave states wide latitude to regulate possession and possession of firearms. In recent decades, gun rights advocates have promoted a different interpretation that focused on the final words of the amendment that “the right of the people to keep and bear arms shall not be violated.”

In 2008, the Court, in a 5-4 decision, accepted this reasoning and held that the 2nd Amendment protects the individual’s right to bear arms for self-defense. His decision overturned an unusually strict ordinance in Washington, D.C. that prohibited any private ownership of firearms; two years later, a court overturned a similar ruling in Chicago.

However, the impact of these rulings was minimal. Kennedy believed that people had a right to have guns at home, and that firearms were subject to reasonable regulation in cities and states. For a decade, the court has dismissed gun rights complaints against laws and regulations, including several from California.

With Kennedy resigning in 2018 and Kavanaugh and Barrett joining the court, the conservative bloc was poised to begin expanding the scope of the 2nd Amendment.

“The constitutional right to bear arms in public in self-defense is not a second-class right.” Thomas wrote to the New York State Rifle & Pistol Assn. against. Brun. The decision eliminated laws in New York, California and four other states that make it difficult for gun owners to obtain concealed carry permits.

However, the consequences of this ruling will not be known for many years, and it raises many questions. Does this mean that there is a constitutional right to carry a loaded gun while walking down 5th Avenue in New York? Or in the subway or in restaurants and bars? Does this also mean that an 18 year old has the right to buy and carry a rapid fire rifle? The Court’s Opinion does not attempt to answer these questions, but notes that firearms are prohibited in courthouses.

The new court is also poised to shatter another 1970s-era compromise on the role of affirmative action in college and university admissions.

In 1978, the court was divided on whether to reject the University of California policy, which allocated few places to minority students at the UC Davis School of Medicine. Four judges felt that this was an illegal quota, and another four considered it a reasonable affirmative action.

Powell was in the middle. He thought the postponement was illegal, but he wrote approvingly of an admissions policy that used a student’s race as one “plus” factor to ensure campus diversity.

In UC Regents v. BakkePowell set the standard for admission policy and was later supported by O’Connor and Kennedy.

This fall, judges will hear anti-discrimination complaints about Harvard and the University of North Carolina’s admissions policies. They will almost certainly rule that any use of race in admission is illegal and unconstitutional.

Trump’s three court appointees — Gorsuch, Kavanaugh and Barrett — are still newbies, but they’ve already made a big impact. They are showing every sign of being ready to move forward with a conservative agenda as O’Connor and Kennedy’s middle road philosophy increasingly slips into the court’s rearview mirror.