The Activist U.S. Supreme Court
Mark Rubin
The activist U.S. Supreme Court brought down the curtain on its shameful, disgraceful, truly mind-bendingly awful 2021-22 Term. Lots of bad, bad decisions: and many more that show a work-a-day Court that resolves complex disputes that get little attention.* Here are the highlights:
Guns
In New York Rifle & Pistol Association, Inc. v. Bruen, No. 20-843, the Supreme Court issued its 6-3 opinion, setting aside as unconstitutional a law in effect in New York for more than 100 years. It took the majority and three of its six Justices 77 pages to explain why that 100 year old law was unconstitutional.
The Second Amendment is an abomination as a drafted statement. Maybe white men wrote the 27 words – A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not infringed – in the 1700s for a reason that does not involve militias. If they did, abomination let them off easy. If not, Justice Antonin Scalia used sophistry in Heller v. District of Columbia, No. 07-290, to get to a personal right to bear arms, disassociated from the militias we have not seen for at least two centuries.
So, we have a constitutional right to walk around with a concealed weapon, as of June 23, 2022. And this benefits our collective how? The noisemakers who makes their living supporting the gun manufacturing industry tell us this decision will make us safer. Right!
The majority and concurring opinions find in the Second Amendment a right to self defense, away from the home. The Second Amendment does not include those words. And for more than 200 years the Supreme Court has never identified such a right. (That the New York law existed for almost 100 years, uneventfully, seems to matter not at all, either.)
Abortion
In Dobbs v. Jackson Women’s Health Organization, No. 19-1392, the Court ended the Roe reign. Four white, Catholic men and a former law professor at Notre Dame decided, for women, that they have no right to control their reproductive health. More coming soon, too, for Justice Clarence Thomas has set his sights on the right to obtain contraceptives, same-sex marriage, and the right to engage in sex with a same sex partner. Don’t think any of this will happen? Recall that for more than 40 years the anti-abortion side demanded for states the right to make their own abortion laws. Now? Those same people want Congress to ban abortion in the United States of America. (Brevity, here, acknowledges the fact that many, many people have shared thoughts on this topic.)
Regulations
In West Virginia v. Environmental Protection Agency, No. 20-1530, another 6-3 majority – get used to it – held that Congress did not intend to delegate authority to the EPA to regulate greenhouse gases from existing coal and natural gas power plants aka stationary sources. The fact that the regulation had been withdrawn did not matter. The fact that Congress granted express authority to the EPA to regulate stationary sources that cause or contribute to air pollution that might endanger public health or welfare did not matter. The essence of the Court’s decision? Really big stuff here. Not for the EPA. Better let Congress do it on its own … as if Congress has the wherewithal to: (a) do anything; or (b) handle complicated matters involving science, if its structure allowed it to get things done. And if Congress did act? Well, gee, we did not have this problem when the Founders wrote the Constitution. Must be unconstitutional for some reason.
In fact, the West Virginia case does not change anything immediately. As noted, the regulation was withdrawn, which makes the opinion an advisory opinion. The Court says it does not provide advisory opinions. Obviously, it does, as it has done just that here. And that’s the rub: the Court tells us, with this opinion, that we don’t need no stinkin’ government telling us what to do, unless … see Dobbs.
Conclusion
The Right likes to talk about activist judges, but those judges never include their favorites. Here, we have three cases involving extreme judicial activism.
*In fact, and for all of the attention associated with the End-of-Term outrages, the Court decides many cases unanimously, or almost so, and decides many of them well.