Activist court remakes U.S. against public will

It had been a half-century since Mitch Stahl last had to advocate for abortion rights. A half-century since that right had been constitutionally guaranteed. A half-century of it being upheld, time and again. A half-century, some would say, of progress toward gender equality under the austere eye of the state.

That half-century ended last month. In a ruling that was as unsurprising as it was galling, the Supreme Court overturned Roe v. Wade on the grounds that it was not “deeply rooted in this Nation’s history and tradition.” Now, a right that millions of women were born into no longer exists. A right that millions of women, activists like Boulder’s Stahl, fought for a half-century ago, must be fought for again.

This court, though, and its conservative majority, is very familiar with activism. In the same session during which they struck down Roe — a decision one Republican lawmaker called a “victory for white life” — the court threw out a century-old gun control measure, affirmed a (Christian) high school football coach’s right to publicly pray on school property during school events, hobbled the EPA in its fight against climate change and all but voided Miranda Rights.

Each ruling individually stands as a testament to the conservative ideology that now has a chokehold on the nation’s highest court. But taken together they are the actions of an activist element on a mission to remake the country in their own image — and in the face of the popular will.

Sixty-one percent of Americans believe abortion should be legal in all or most cases, while just 37% believe it should be outlawed. In fact, according to a recent Pew Research poll, there are only two identifying traits that correlate with the belief that abortion should be illegal: white evangelicals and conservative Republicans. There is no ethnicity, age group or gender that does not believe abortion should be legal in at least some cases.

The same holds true for the other recent rulings. Only three in 10 Americans believe prayer should happen in public schools. Sixty-five percent of Americans believe the government is doing about climate change (63% say they can already see some effects of climate change in their community). Fifty-seven percent want stricter gun control measures. And 66% believe civilians need to have more power to sue the police for misconduct.

But, before this Supreme Court, public will means nothing.

However, many would argue that the Supreme Court is merely doing its job: ensuring that laws are upheld as they were written. But a theme among these cases is that the court ruled against a previously set precedent. And while the court has overruled itself on many occasions, looking through history it is easy to see that reversing a precedent is typically done to rights to citizens, not take them away. In this harsh light of historical perspective and public opinion, there is little to do but acknowledge the court’s status as an activist body.

Another theme that threads together these rulings — besides how neatly they correlate with the ideology of the small minority of conservative evangelical Christians — is a lack of foresight. Decades of energy and work have been put into overturning Roe. But what has been done to prepare for a post-roe future? What political planning has been done to turn a court ruling into a panacea for perceived societal ills?

Leaving states to outlaw abortions and practice what can only be called “forced birth,” will hardly ensure that children are brought into this world with comforts, resources and love. States like Texas have made disingenuous claims about supporting mothers and children, while zeal and energy have gone into drafting bills that would allow citizens to sue mothers who seek an abortion in a nearby state — such as Colorado. A conservative majority in Washington and a national abortion ban would lead to an even more uncertain and contentious future.

Worse still is the vision that the court’s most radical justice, Clarence Thomas, laid out in his opinion of an America with no right to contraception, same-sex intimacy or same-sex marriage. While no one else signed onto Thomas’ egregious treatise, in the aftermath of the court’s most recent spree, it is easy to imagine more constitutional rights toppling.

In light of the past few weeks, it is hard not to ask questions about the very nature of a partisan, politically aligned court, about the separation of powers, about whose country America is versus whose country it’s supposed to be.

One thing, though, has been made painfully clear — clear to millions of women like Mitch Stahl; clear to millions who believe freedom religion is freedom religion; clear to millions who can’t, for so many reasons, trust the police; and clear to the vocal majority who support swift, decisive action on climate change. In the eyes of this activist, originalist court, the Founders — those mostly wealthy, mostly white, mostly slave-holding men who lived and died and wrote laws two long centuries ago — are still the only people who know what’s best for the diverse, inclusive and tolerant nation we are today. Or, at least, that we should be striving to become.