Opinion: Women’s Rights, Guns, and Reforming the Supreme Court
Strait of Juan de Fuca in Washington, State, USA. Photo: Russ Vernon-Jones
Love Justice And Climate Change
The overturning of Roe v Wade by the Supreme Court is a cruel blow to women’s rights. Not only does it remove a woman’s right to end an unwanted pregnancy, it sends a deeply offensive message to all females. As a woman friend of mine wrote after the decision, “It is a direct and clear attack on all females. It is a direct statement that our bodies are not our own. It is a sexist notion that our bodies belong to everyone else, our children, our male partners, our country, but not us.”
The Supreme Court’s action is an unprecedented removal of a constitutional right that women have had for almost 50 years. While it is not surprising, given the current composition of the Supreme Court, it is an outrage, nonetheless. Women should have control over their own bodies. Women and men alike should rally to support that right, and all reproductive rights for women. Polls show that a two-thirds majority of the population did not want Roe overturned.
The effects of the Dobbs v Jackson decision (the one that overturned Roe) will fall disproportionally on poor women who lack the means to travel to states where abortion is still legal, adding to its inequity. There are some indications that the Court’s decision also lays the groundwork for the Court to remove the right to access contraception and the right to same-sex marriage.
“Guns Have More Rights Than A Woman”
Earlier in the same week the Court imposed increased limitations on the ability of the states to control guns. They voided a 100-year-old New York law that placed limits on hand guns. This decision came down in the wake of the Buffalo and Uvalde mass shootings, with a sizable majority of the country favoring greater gun control. Taraji P. Henson, the “Hidden Figures” star actress, slammed “the fact that guns have more rights than a woman” as she opened the Black Entertainment Television Awards.
From Heather Cox Richardson
Historian and blogger Heather Cox Richardson writes that the effort by Donald Trump and his supporters to keep Trump in office despite his having lost the 2020 election, and the action of the Court to take a constitutional right away from the people, are two extraordinary and related events. Here’s an extensive quote from her June 24th post that I found quite illuminating:
“The current-day Republican Party has abandoned the idea of a democracy in which a majority of the people elect their government. Instead, its members have embraced minority rule.
The Dobbs decision marks the end of an era: the period in American history stretching from 1933 to 1981, the era in which the U.S. government worked to promote democracy. It tried to level the economic playing field between the rich and the poor by regulating business and working conditions. It provided a basic social safety net through programs like Social Security and Medicare and, later, through food and housing security programs. It promoted infrastructure like electricity and highways, and clean air and water, to try to maintain a basic standard of living for Americans. And it protected civil rights by using the Fourteenth Amendment, added to the U.S. Constitution in 1868, to stop states from denying their citizens the equal protection of the laws.
Now the Republicans are engaged in the process of dismantling that government. For forty years, the current Republican Party has worked to slash business regulations and the taxes that support social welfare programs, to privatize infrastructure projects, and to end the federal protection of civil rights by arguing for judicial “originalism” that claims to honor the original version of the Constitution rather than permitting the courts to protect rights through the Fourteenth Amendment.
But most Americans actually like the government to hold the economic and social playing field level. So, to win elections, Republicans since 1986 have suppressed votes, flooded the media with propaganda attacking those who like government action as dangerous socialists, gerrymandered congressional districts, abused the Senate filibuster to stop all Democratic legislation, and finally, when repeated losses in the popular vote made it clear their extremist ideology would never again command a majority, stacked the Supreme Court.”
The Supreme Court Must Be Reformed
In my view, achieving and protecting human rights, justice, and desperately needed climate action are not compatible with the current Supreme Court. With climate change threatening the livability of the earth and human civilization as we know it, we cannot wait for different justices to control the Court. The Court must be reformed. This will be difficult, but must be undertaken. Possible remedies include adding more justices, term limits for justices, requiring a 7-vote majority to invalidate legislation, or ending the right of the court to invalidate legislation at all. None of these remedies are prohibited by the Constitution.
A serious effort to reform the Court will include helping the public to better understand the situation. The Court is highly undemocratic. Democrats have won a majority of the popular vote in 7 out of the last 9 presidential elections, but have appointed only 3 of the 9 justices appointed during that period. With the exception of a brief period during the Warren Court in the 1950’s and 60’s the Court has historically been a defender of “class privilege, racial hierarchy, and misogyny,” as Louis Michael Seidman put it in The Nation recently. The Court has often been disastrously wrong: protecting slavery, maintaining Jim Crow, approving a forced sterilization of women program in 1927, and endorsing the internment of Japanese Americans during World War II, to name only a few of the many occasions. The Court is wrong again now. It must be redesigned.
We Can Be Grounded In Love And Solidarity
I want to end this post with a reminder of a position this blog has taken consistently. We will need to be strong and persistent in our pursuit of a livable planet and of a just society that works for everyone. Powerful forces are pushing a different vision based on white supremacy and the interests of the wealthy elite. While we may be angry, it will be important that we not slip into hate or bitterness. Our own spiritual health, and the vitality of our movement, depend on our being grounded in love – love for all people and love for the earth. This love and our solidarity with each other are powerful.
Russ Vernon-Jones was principal of Fort River School 1990-2008 and is currently a member of the Steering Committee of Climate Action Now-Western Massachusetts. He blogs regularly on climate justice at www.russvernonjones.org.
Russ– Great commentary. Summarizes situaltion perfectly. Jeff Lee got me reading Amherst Indy– a terrific contribution to the town. Best regards, Bob Weiner
The Judiciary Procedures Reform Act of 1937 would have let the President appoint as many as 6 additional Associate Supreme Court Justices, one for each incumbent Associate Justice over 70 years of age. Newspaperman Edward Rumely invented the slam of “court-packing” for this attempt by Franklin Delano Roosevelt to save his New Deal legislation from a 9-member Supreme Court whose majority was striking down, as unconstitutional, law after law after law.
FDR’s Reform Act however went nowhere. Nonetheless, a Supreme Court that found New York’s minimum wage law unconstitutional by 5-4 in 1936, in 1937 found as constitutional the minimum wage law of Washington State, again 5-4. The Court then went on to uphold the Social Security tax, the National Labor Relations Act, and additional New Deal measures that helped ordinary Americans survive the Great Depression’s extraordinary deprivations.
Yet “court-packing” must be one of the most successful PR memes ever. Even though FDR failed at it, this denigration of the idea of increasing the number of Justices lives still nearly a century later. “Court-packing” came up this week in discussion with non-lawyer friends about the current Supreme Court’s blitzkrieg abolition of a constitutional right to abortion, abolition of a century-old New York gun control law, support for a coach’s public exercise of his religion at a tax-supported public event, and kneecapping of the EPA’s authority to protect us all from lethal air pollution. For more than 35 years I have been a member of the U.S. Supreme Court Bar. I feel betrayed not only as a U.S. citizen, but as an American attorney.
The salient objection to increasing the number of Justices seems to be this: if Democrats add (and appoint) 4 Associate Justices, for a total Court of 13, of which a majority will uphold civil rights and legislation that benefits the American public and environment, then Republicans might later again increase the number of Justices in order to do the opposite. It’s the dreaded slippery slope. Yet this is pure speculation. Moreover, this Court’s precedent-flouting majority is well on its way down that slope already.
The damage it has just done will cost the lives of girls and women imminently and continually. It will cost the lives of thousands more of us who die needlessly of heart attacks and other pollution-exacerbated disease. The possibility of another, Republican-spurred increase in the Court is vanishingly remote. I cannot accord it any heft when weighed against the girls’ and women’s lives and, indeed, everyone’s lives, which this Court has seen fit to exact right now. That is not speculative. It is fact.
In addition, the 6-Justice majority on this Court is just getting started. Any right derived from the right to privacy, except for inter-racial marriage, is in its crosshairs. So are election law, and more.
In my view, Russ Vernon-Jones correctly lays out why we must reform the Supreme Court, and must do it now. We cannot afford simply to hope for something like whatever tipped the Court in 1937 from anti- to pro- New Deal, or to wait for replacements for the present majority — and, with respect to them, still to hope. “[A]chieving and protecting human rights, justice, and desperately needed climate action are not compatible with the current Supreme Court. With climate change threatening the livability of the earth and human civilization as we know it, we cannot wait for different justices to control the Court.” Russ is right.
The Judiciary Act of 2021 could be one key. It is Senate bill 1141. It’s succinct and sweet: “Section 1 of title 28, United States Code, is amended by striking “a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum” and inserting “a Chief Justice of the United States and twelve associate justices, any eight of whom shall constitute a quorum”. That’s it.
Senator Ed Markey introduced this Judiciary Act last April. Co-sponsors are Senator Elizabeth Warren – no surprise here – and Senator Tina Smith (Democrat of Minnesota). That, shockingly, is all. The bill is now before the 22 members of the Senate Committee on the Judiciary. https://www.senate.gov/general/committee_membership/committee_memberships_SSJU.htm. And there it sits. The election this November must be a full court press, so to speak, to keep the House, gain seats in the Senate, and do whatever it takes to get a Supreme Court such as We the People want and deserve.
I greatly appreciate also what Russ says about “being grounded in love – love for all people and love for the earth,” even as we fight to regain rights that we’d long ago won. We cannot afford to return hatred for the devastation that this Court’s majority intends for the American people. Though I’ve no illusions. This will take more than one strategy. It will doubtless take a while. And there are no guarantees.