It Took The Supreme Court Just 10 Days To Change America As We Know It

by | Jun 29, 2022 | Politics

This article is part of HuffPost’s biweekly politics newsletter. Click here to subscribe.The Supreme Court is allegedly the most passive, slowest-moving branch of government. But in a little more than one week’s time, the court may end up rewriting as much American law as any Congress or presidency in recent memory.Just consider what the court has done since last Tuesday:― It has invalidated gun restrictions in states that hold about one-fourth of the population and created a new constitutional standard for firearm restrictions that will make defending other limits (including parts of a new law that President Joe Biden signed last week) even more difficult.Advertisement― It has forced publicly funded school voucher programs to include religious establishments and required districts to allow coach-led, post-game prayers on the field, and in the process dispensed with a decades-old legal test designed to prevent official government endorsements of faith.― It has ended the right to an abortion, effectively allowing the procedure to be illegal or nearly illegal across a broad swath of the country, while also rejecting the constitutional foundation of privacy rights that protect same-sex marriage and use of contraception. To put things a bit differently, the court has gutted limits on gun possession, severely weakened the wall between church and state, and taken away a right that has existed for nearly 50 years ― reinterpreting the First, Second, Fifth, Ninth and 14th Amendments in the process. And it’s not done yet. The final batch of opinions due out Thursday includes a case about the Environmental Protection Agency and climate change that could, as HuffPost’s Paul Blumenthal wrote earlier this year, “crush the ability” of the federal government to regulate everything from toxins in the water to the safety of consumer products. AdvertisementAbout the only major issue on which the court isn’t writing new doctrine is race. And that will likely happen next year, when the justices take up cases that could end affirmative action and eviscerate what’s left of the Voting Rights Act.How you feel about these changes depends, obviously, on where you come down on issues like abortion, guns and school prayer. But it also depends on what role you think the Supreme Court should play in governing ― and more specifically, when it ought to be making the kind of sweeping changes it just unleashed.To answer that question, it helps to think about some key episodes in history and how they compare. In The 1930s and ’40s ― A New Understanding Of EconomicsOne is the 1930s, when Franklin Roosevelt was trying to get the country through the Great Depression and an aging conservative majority on the Supreme Court was striking down key parts of the New Deal. They’d been ruling that way since the early 20th century, when they were invalidating economic regulations from the Progressive Era ― most famously, in a case called Lochner v. New York that struck down a state limit on the number of hours a baker could work in a week. The Lochner Court, as it came to be known, believed the right of private parties to make contracts was sacrosanct and interpreted the federal power to regulate commerce in the narrowest possible way. When FDR became president, the conservatives started throwing out elements of his agenda with the same fervor they had struck down reforms from when his distant cousin Teddy was president.The individual elements of the New Deal weren’t all popular ― or successful. But FDR had deep reservoirs of support with the voters, who were desperate for muscular government action in the face of an unprecedented economic crisis, and that support extended to his anger with the Court, according to Jeff Shesol, a former White House speechwriter and author of “Supreme Power: Franklin Roosevelt v. The Supreme Court.” Advertisement“Roosevelt very much had the public on the side, whatever they might have thought about the [National Recovery Act] or whatever they might have thought about the [Agricultural Adjustment Act],” Shesol told HuffPost. “There was a mounting sense of crisis, and that the crisis was being created by the Supreme Court.” FDR was so frustrated he eventually proposed adding new justices to the Court, in what became known as his “court-packing” plan. Congress rejected the proposal resoundingly, but around the same time ― thanks to a change in sentiment by some justices and later some vacancies on the bench ― the court flipped and began recognizing much greater government authority to regulate the economy. In doing so, it was updating doctrine in a way that brought old ideas into line with new public values, rather than the other way around.In The 1950s and ’60s ― A New Understanding Of RightsSomething similar was happening in the 1950s and 1960s, when Earl Warren was the chief justice, and the Supreme Court began aggressively interpreting the Bill of Rights and Civil War amendments as providing guarantees of equality and liberty that previous courts had not recognized. The landmark ruling of that era, Brown v. Board of Education, prohibited racial discrimination in schools and was the first step towards fulfilling the century-old promise of equal protection for people of all races. It also had the support of a majority of voters from the get-go, according to Gallup’s polling. AdvertisementThe revolution in judicial thinking continued into the 1970s, a period that included Roe v. Wade, the decision recognizing a right to abortion. The polling on Roe and abortion more generally has always been complex, but the best evidence suggests most Americans thought then that abortion should be legal at least some of the time, which is what Roe allowed.“The Supreme Court has not been this out of step with public opinion since the New Deal Court-packing fight in 1937.”- Barry Friedman, New York University Law SchoolWhatever the specifics of the polling, the later 20th century rulings were another example of the Court rulings tracking broader, society-wide change in values ― in this case, growing recognition of racial minorities and women as deserving of the kind of fair treatment they hadn’t gotten before. And this is how most scholars have long understood the Supreme Court to operate ― by gradually, if haltingly, moving in tandem with changing public expectations. But the decisions this past week don’t fit that model. The decision on guns comes at a time when solid, consistent majorities want the government to do more to regulate firearms. The decision on abortion comes amid polling showing that large …

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