As the Supreme Court nears the end of its term, it is poised to hand down a string of decisions that carry a deeply disturbing theme. Much attention has appropriately been given to the stunning draft decision reported on Dobbs v. Jackson Women’s Health Organization, which would overturn Roe v. Wade. Yet in other cases, too, Americans will likely see significant retrenchments of their rights, including those to clean air, religious freedom, effective governance, and to live safe from the scourge of gun violence. Dobbs will not be an isolated case of overreach nor of attacks on cherished liberties. Instead, it offers a stark preview of the plans the court’s radical majority has for the future.
Simply put, the current majority on the court is anything but conservative. These unelected justices—who, as recently as two years ago, promised to respect foundational Supreme Court precedents—are advancing their own extreme ideological vision that is out of step with most Americans. This will quite literally turn back the clock on our nation’s hard-fought progress. It should not go unnoticed that this is the first full term in which all three justices nominated by President Donald Trump are sitting together.* After decades of a more or less stable and relatively balanced—if conservative—membership, the court’s actions this term are the direct outcome of MAGA policies and tactics to wrest control of the Supreme Court at any cost. These actions lead one to wonder, as Transportation Secretary Pete Buttigieg recently asked, if we are seeing “the high-water mark of rights and freedoms in this country” before these civil rights are rescinded.
The Supreme Court’s path to expanding individual rights has not always been a straight line. Ample evidence exists of the court siding with prejudice or powerful actors over the people, before its missteps were corrected at a later date. Dred Scott v. Sanford held that African Americans were not to be recognized as citizens. Nearly a century later, Korematsu v. United States upheld the forced internment of Japanese Americans. Plessy v. Ferguson blessed state segregation laws as legal under the infamous “separate but equal” doctrine. And Lochner v. New York invalidated a state law regulating acceptable working conditions under a contract. Today, the original, flawed findings would prove shocking and unacceptable to most Americans. Fortunately, in each of these cases, the Supreme Court—or, in one case, a constitutional amendment—expanded our notion of the rights guaranteed in our society.
What is different about the Supreme Court’s hard pivot in this term is that, in each case, the court may seek to reopen and undermine precedents, compromises, or laws that have long since been settled and safeguarded the rights of everyday people. Beyond the most direct effect of harming Americans and their rights, this extremist brand of judicial activism has also eroded trust in the Supreme Court as a critical national institution. Although there are no quick solutions, there are three potential actions that may help protect our democracy:
First, the current majority on the Supreme Court must recognize that its continued radical activism has the potential to destabilize its very institution and the broad respect granted to it and its decisions by the populace—and show restraint.
Second, Congress must consider significant reforms to the court including term limits, new binding ethical restrictions, increased transparency, and fast-track procedures to ensure open seats do not go unfilled for political or ideological reasons.
Third, Congress and executive branch agencies must write laws and regulations in a way that accounts for the court’s activism in order to avoid improper intrusion by the court in these laws’ appropriate implementation.
For sure, none of these solutions will have the immediate impact of repairing the significant damage likely to be caused by the Supreme Court’s majority in the coming days. But any effective response most basically necessitates understanding the undeniable throughline that connects these cases—and what it suggests about the direction of the court.
Upcoming decisions
Taking a look at five cases awaiting decision this month—and the court’s likely trajectory in resolving them—demonstrates the lengths to which its majority will go in reversing long-standing precedents and laws to achieve their ideological aims.
Dobbs v. Jackson Women’s Health Organization
While Dobbs v. Jackson ostensibly questions the constitutionality of a Mississippi law banning almost all abortion after 15 weeks, the state has directly requested the court to use the case as a vehicle to overturn Roe v. Wade in full. The Dobbs case catapulted into national headlines in early May when Politico released a draft of the Supreme Court’s decision on the case, revealing an audacious holding that would fully overturn the nearly half-century long precedent of Roe v. Wade and the 30-year-long precedent of Planned Parenthood of Southeastern Pennsylvania v. Casey.
If the draft as leaked is finalized and Roe is fully reversed—or even if the Mississippi law is more narrowly upheld in contravention of the precedents set out in Roe and Planned Parenthood—it would be a quintessential example of extreme judicial activism, spurred by the appointment of Trump-era justices who now constitute the bulk of the court’s extreme-right majority. It would upend nearly 50 years of settled law, with multiple justices reversing course after having attested in their nomination hearings that Roe v. Wade was “an important precedent” and subject to the principle of “stare decisis” (the court’s doctrine to show strong deference to past decisions). In one decision, millions of Americans would lose their constitutional right to safe and accessible abortion. Meanwhile, more than half of states are poised to ban abortion if Roe falls, including the 13 states ready to carry out near-complete abortion bans under “trigger laws” designed to become effective once Roe is overturned as well as the additional states with extreme bans still in state code passed before Roe.
