Where do we go from here?

Thinking about what the recent SCOTUS decisions mean for America.

Photo by Gayatri Malhotra on Unsplash

I don’t know where to begin.

From June 23-27, the Supreme Court of the United States issued a series of decisions that have left us with an America very different from the one we had only a week ago. Protection for women’s health has been decimated; protection for gun carrying has been expanded; freedom from religion in classrooms is no longer promised; Miranda rights have been restricted, but at least death row inmates can successfully petition for their preferred method of execution. It’s been a rough week in jurisprudence. 

I’m not going to spend time recapping these decisions - they have been discussed extensively in the media and anything I say will only be a restatement of what has already been said. Instead, I want to focus on what they say in combination, and what they mean more broadly. It is difficult not to make a moral judgment in discussing these decisions, and I think that’s because of the moral stance being imposed on the public by this series of cases. They follow a distinctive ideological trend, which perhaps is not surprising given that the current composition of the SCOTUS swings heavily to one side. I am also not an expert in American Constitutional law. I went to law school and am preparing for a career in Canada, where Constitutional rights, though often similar, are not exactly the same. A key difference is the idea of ‘textualism’ or ‘originalism’ that is invoked by members of the SCOTUS such as Justices Gorsuch, Barrett, Alito, and Thomas. This is the idea that the Constitution should be interpreted with a view to the intention of its drafters. While it makes little sense to me, especially coming from Justice Barrett, given the stance on female quality taken by 18th-century men, it is a major contributing factor to justifying decisions around gun control, among other things. In Canada, we employ something known as the ‘living tree’ doctrine, which views the Constitution as a living organism meant to be reinterpreted to accommodate social change. While this does not mean the Supreme Court of Canada doesn’t make bad law on occasion, it fundamentally changes how these foundational texts are viewed. Looking at Constitutional law through this lense, it is difficult to reconcile the way decisions were reached in several of these cases. While it is important to understand why certain provisions and amendments were included in foundational texts, it is also important to remember how little of the way our society works today could have been anticipated by their drafters.

My first major question from all of these cases, is whether the SCOTUS is making decisions that are aligned with the movement of American society. This question has been particularly prominent in my mind this week because of the way that, four of the decision, in particular, seem to be pushing the rules and beliefs of the social order of an earlier era or at the very least, one that can be directly tied to a particular religious worldview. The most recent polls show that 61% of Americans opposed overturning Roe v Wade, including 34% of Republican voters. In the gun control debate, 53% of Americans support stricter gun control laws (down from 60% in 2019), and 48% feel that gun violence is a major issue in the United States. The statistics indicate that on the question of abortion, the overturning of Roe v Wade and the trigger laws that have come into effect in the days since this happened is not a representation of what the majority of the American people want, but instead the realization ideas held by a small, dogmatic group. While the debate over gun control does not sway as heavily to one side, recent events in Buffalo and Uvalde, at the very least indicate that gun violence is a serious issue in America and that this might not be the moment to scale back restrictions on firearms. 

So if this isn’t the will or desire of the majority, what is going on? My impulsive response is that this is the tyranny of the minority. A relatively small group of legislators and judges, most of whom were appointed or elected under the last administration and who hold a significant amount of power over the United States, have been able to leverage that power to impose what can only be seen as their narrow morality on the majority. And for as much as these are decisions grounded in law, there is a moral component to them - one that several of the SCOTUS judges involved were incredibly open about prior the joining the court and since making the decisions - namely Justices Barrett, Alito, and Thomas. 

The line of decisions published this week makes the United States less safe. 

While there is so much that can be said about each of the decisions individually and in combination, the fundamental takeaway is that the United States is a more dangerous place to live than it was before. Already, stories are emerging of women put at high risk of fatality while doctors in States with trigger laws attempt to navigate whether they can abort an ectopic pregnancy with their legal team. The next school shooting will be made easier by this latest barrier to States legislating gun control. The comfort of students who belong to religious minorities to attend school without having majority religion imposed on them has now been called into question. 

I said at the outset that I don’t know where to begin. And that remains true. This is a dark moment in the history of jurisprudence. Wherever we go from here, let’s make sure that it is away from the direction where things seem to be headed.