The window to force the issue of Constitutionality of the clearly currently unconstitutional Texas SB 8 is small and closing fast. Make no mistake, the Supreme Court is going to take away your ability and right to choose whether or not you have children. Regardless of your gender, religious beliefs, economic standing or race. An unelected body of 9 people, 3 of whom were appointed (installed?) by an authoritarian, coup plotting, insurrection leading wannabe demigod dictator. Clearly, as we’re having this discussion they’ve already done it, though the effects have yet to spill over into our daily lives across the rest of the States. But that’s all just a matter of time.
When it comes to the Constitution, it’s various amendments and where it’s silent it is incumbent upon the Supreme Court to take an expansive view that opens individual rights and liberties as opposed to limiting them to the benefit of the state. It is imperative that the Supreme Court interpret laws and regulations that reinforce Federal Supremacy, for without this paradigm the United States reverts to that fledgling nation that was a weak, ineffectual mess of a loose confederation. It is through Federal Supremacy that we have a real, cohesive nation. Without this legal doctrine we are nothing but a loose collection of 50 countries. This should be obvious to anyone who understands American history and the country’s founding, that it was and always has been the goal of our society to enhance an individual’s life by granting and recognizing an expanse of rights, privileges and liberties, even when not explicitly spelled out in the Constitution, its Amendments or federal law. However, knowing the history of the Court and the numerous, wrong-headed, illogical and outright regressive decisions it’s handed down, I don’t expect anything new or different with today’s Court. Whether or not the current makeup of SCOTUS reflects Trump’s, the Religious Right’s, or the Republican Party’s own image is neither here nor there. After all, a more balanced Court still gave us the Citizen’s United and Hobby Lobby decisions, further solidifying the rights of the wealthy and few above the rest of us. This is a constant fight, and one that FDR barely won, only because he threatened to expand the Court, a very real possibility given the 2/3 control of Congress Democrats enjoyed for six years after FDR’s election. Sadly, I don’t see such a threat as meaningful with today’s razor thin Democratic majority.
If the current Court wishes to remain relevant and looked upon as legitimate then it would be wise for the 6 conservative justices to remind themselves that, while the Judiciary, and especially the Supreme Court, has been the most conservative and stubborn to change branch of government, it too must recognize that times are changing and that, even though not directly elected, the Supreme Court serves the American people. While in many situations this stubbornness and slow coming around is a good thing for the stability of law and society. However, public and political opinion is clearly and actively against the erosion of our individual rights, be they reproductive, health, or otherwise. They would also be wise to remember that we are a nation in which the government, including the courts, derives its power from the governed. While this balance has been out of whack for quite some time (since the founding, if you ask me), too much further askew and I don’t believe the Supreme Court will survive in its current form. Reform of the Court for the benefit of the People is heavy on the wind, and I don’t see the gusts calming anytime soon.
What we, the electorate, need to remember is that the fight over reproductive rights isn’t one that lives in a bubble. It’s not a fight specifically over whether or not a woman, once pregnant, loses control of her body to the State, though those on the Right would want you to believe so. As in most things in life, it’s all connected and the implications spill and spread out into other areas of our lives that we’ve taken for granted. Areas of self-direction, choice and individual freedom to pursue our happiness. Everything from freedom of movement to who we love. From being able to mix and mingle regardless of our race, religion, sex or sexual orientation. So much of our modern life is not explicitly rooted in the Constitution or federal law, but is rather emergent from the laws we already have.
If the Supreme Court continues to reverse course on this decades long legal theory and logic that has become the bedrock foundation of American Law and Society it will ultimately damage the very fabric of what America has become to such a degree that in the best case scenario the Court becomes a laughing stock and loses relevance and legitimacy. The worst case scenario, of course, would be extreme social unrest and an ever growing hodgepodge patchwork of incompatible laws and regulations from State to State. In the most extreme case? Quite possibly the tipping point leading to yet another Civil War.
Of course, the President and Congress can do much to prevent the Supreme Court from shredding the very foundations of modern American life by passing laws that guarantee certain baseline rights, from voting rights to reproductive care, from civil rights to worker rights. At a bare minimum (and the right thing to do)? Enshrining the ERA into the Constitution.
While we as a Nation have made great strides there is still much, much work to be done. The fight over Reproductive Rights is a fight over all our Rights. If the Supreme Court can take one freedom away it can take others. The only legal paradigm needed to roll back 200 years of progress is simply that if it’s not explicitly, or even explicitly implicit, in the Constitution, it goes to the States to decide. If the Supreme Court is allowed to fully embrace such a legal doctrine that ultimately requires every individual freedom and right to be explicitly legally protected in the Constitution all of the gains we’ve made as a people and a nation will be unravelled before we know it. The fights for equality, whether in public accommodations, the workplace or at the alter, will be for naught.
The President and Congress have an opportunity to act, now. The solution, while seemingly simple, will be difficult for it encompasses multiple parts. First, Congress needs to impose term limits on the Justices and make them retroactive. Second, expanding the number of Justices from 9 to 13 will allow for a rebalance of the Court to reflect where America is at. Third, to make sure the Court is more in line with American Society, and in conjunction with term limits, each President should be allowed to appoint two Justices. Lastly, Congress, regardless of how close to an election, must be obligated by law to vote on confirmation of Supreme Court nominees.
The future of our country and the future of our democracy is contingent on a Supreme Court that above all else respects and upholds the principles of self-government, individual rights, and equality for all. If the 9 Justices are unwilling and unable to see the forest for the trees then Congress and the President must help them remove their blinders.