On a wild horse - David Cole in NYRB:

‘In several of its most controversial decisions, including those on abortion, gun control, and prayer, the Court invoked originalism to overturn long-standing law and precedent. That approach, if applied consistently, would upend virtually all of constitutional law. Because so few justices throughout American history have been originalists, constitutional law as it stands today, especially with respect to its open-ended guarantees of liberty, equality, and due process, bears little resemblance to how it was originally understood. To revert to that understanding would be plainly unacceptable; it would mean, for example, reviving “separate but equal” and depriving women of equal protection. For better or worse, even the most committed originalists don’t apply originalism consistently, so it’s unlikely that the Court will resurrect Plessy v. Ferguson, the 1896 decision upholding segregation. But this term, the new majority applied originalism to disastrous effect, and only they know how far they will go.’

(…)

‘On June 24 the Court followed through: in Dobbs, those five justices (Alito, Thomas, Gorsuch, Kavanaugh, and Barrett) declared Roe v. Wade “egregiously wrong” and overruled it, leaving the intensely personal decision to terminate a pregnancy a matter for politicians, not the pregnant woman herself. Chief Justice Roberts also voted to uphold the Mississippi law in question, which banned abortion after fifteen weeks, but he would have done so without overruling Roeand by holding instead that fifteen weeks affords women a reasonable opportunity to exercise their right to terminate their pregnancy. Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented.
What made Roe “egregiously wrong” in the eyes of the majority? Justice Alito reasoned that Roe’s error was its failure to identify laws in 1868, when the Fourteenth Amendment was adopted, that protected the right to abortion. The Fourteenth Amendment prohibits states from depriving persons of “liberty” without “due process of law,” which the Court has long interpreted as protecting from state interference both “bodily integrity” and highly personal decisions about reproduction, sexual intimacy, and family—such as deciding whether to use contraception or whom to marry. But because “abortion” is not mentioned in the Fourteenth Amendment, Alito maintained, the right to abortion could not exist without a firm foundation in “history and tradition.” And because abortion was widely prohibited in the late nineteenth century, the Fourteenth Amendment’s reference to “liberty” cannot have been understood to encompass it.’

(…)

‘If “liberty” in the Fourteenth Amendment is now to be strictly confined to specific rights that that provision was understood to protect in 1868, by contrast, most of the Court’s due process jurisprudence would be overturned. In 1868 there was no history of protecting the rights to contraception, same-sex marriage or intimacy, or interracial marriage. Justice Alito insisted that the decision to overturn Roe did not affect those other rights, although Justice Thomas in a concurrence welcomed revisiting all but the last of those rights as well.’

(…)

‘The Second Amendment did not even protect an individual right to own a gun until the Court’s District of Columbia v. Heller decision in 2008. Before then, the courts, the Justice Department, and historians had long viewed the Second Amendment as protecting only the rights of states to field a militia, as a check on federal tyranny.’

(…)

‘The Eighth Amendment prohibits not just punishments deemed “cruel and unusual” as of 1791, when the provision was adopted, but those that have come to be seen as cruel and unusual with the passage of time, such as mandatory life sentences for juveniles. And the procedures guaranteed by the Fifth Amendment’s due process clause are not confined to eighteenth-century rules but call for a balancing of the government’s interests against the individual’s interests. In each of these areas, courts applying constitutional review assess government needs and individual interests today, not just a couple hundred years ago.’

(…)

‘Administrative agencies are an established and necessary feature of our federal system. Even when it was not as dysfunctional as it is today, Congress couldn’t possibly regulate with the specificity and expertise needed to take on the nation’s environmental, health, energy, security, and economic problems. Recognizing that, Congress long ago created administrative agencies, set out general guidelines for them, and relied on the agencies to fill in the details, implement its goals, and monitor compliance. But many conservatives (and few more vehemently than Justice Gorsuch) object that such agencies were not foreseen by the Founders, exercise too much power, and have too much independence. That view prevailed in two of the most important cases of the term.
In National Federation of Independent Business v. Department of Labor, the Court blocked a Biden administration regulation that would have required businesses with more than one hundred employees to either impose Covid vaccine requirements or institute testing and masking. The agency estimated that this rule would save 6,500 lives. The Court accepted that estimate but blocked the regulation anyway. Invoking an unprecedented and vague “major questions doctrine,” the Court’s six conservatives ruled that the Occupational Safety and Health Administration (OSHA) could not impose the regulation because Congress had not authorized it to do so with sufficient specificity.
In fact, the regulation fell squarely within the responsibility Congress delegated to OSHA when it authorized the agency to adopt emergency measures where “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards.” Covid-19 was plainly a “new hazard” and, absent protective measures, workers would be exposed to the hazard at work, and many would get sick and die. Adopting language from last year’s decision striking down the CDC’s temporary ban on evictions during the pandemic, the Court declared that “we expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance,” and then found Congress’s grant of authority insufficiently “clear.” This test, which allows the Court to override the plain text of a statute by deeming it insufficiently specific, finds no support in the history and tradition that the Court invoked in cases like Dobbs, Bruen, and Bremerton. And it is highly manipulable. There is no standard for what is “clear” enough, or what constitutes a power “of vast economic and political significance.” Congress’s authorization for OSHA to act didn’t specify that it applied to Covid-19 because the law was enacted in 1970. What Congress did foresee, however, was that emergency measures would be necessary from time to time to counter “grave danger” from “new hazards” in the nation’s workplaces—and it specifically directed OSHA to respond. No more should be required.’

(…)

‘Next term the Court takes up the constitutionality of affirmative action, racial discrimination in redistricting, a sweeping challenge to the Indian Child Welfare Act, a claim that “expressive” businesses have a First Amendment right to discriminate against gay couples seeking to celebrate their weddings, and an unprecedented and dangerous claim that state courts cannot police their legislatures when they gerrymander congressional districts. Whether the Court will continue its headstrong approach to all that has gone before it is likely to depend on how we as citizens respond to its initial salvos. If Americans mobilize, demonstrate, and vote on issues like abortion, gun control, and climate change, the Court will at some point have to take heed. But if we sit back and allow it to take away our rights and safety without a fight, there’s no telling how far the five justices who now exercise majority control will go.’

Read the article here.

Mobilize, demonstrate and vote in order to rein in the court that according to this article, and I happen to agree, has become a wild and dangerous horse.

We will know in November how the voters will respond. Since the voters, and the not very fair American electoral system, gave us Donald T. I’m slightly skeptical.

But who knows, maybe suburban women will save us, for the time being at least.

If that’s the case, we are reminded once again that the Messiah can come in very strange disguises.