Abortion rights, affirmative action and same-sex marriage protections have faced or are likely to face significant challenges in the conservative-leaning US Supreme Court.
It began with Dobbs v. Jackson in late June, which overturned the right to abortion established in Roe v. Wade. The justices in the majority said they ruled so that power could be returned to the states, leaving some laws outlawing abortion.
“It’s so disingenuous because people overwhelmingly support abortion rights,” said Tom Prohl, former president of the New Jersey State Bar Association.
In his concurring opinion in Dobbs, Justice Clarence Thomas said other Supreme Court cases that have extended the 14th Amendment’s equal protection clause to people’s right to access contraception, the right to same-sex intimacy and equal protection for same-sex marriage should be reconsidered. Thomas did not mention the right to interracial marriage, which is also enshrined in the 14th Amendment; he himself is in an interracial marriage. Thomas opined that Obergefell v. Hodges – which extended 14thousand Equal Protection Amendment Clause for Same-Sex Marriage – The wrong decision was made. Jurists accused him of demonstrating his bias, which cases he paid attention to in his opinion.
“It rightly struck fear in the hearts of many people. And I think it was a really painful reminder that many of us from marginalized communities rely in this country on a Constitution that was not created for us and that, in many ways, was never created to protect us ,” said Kim Matcherson. associate dean of Rutgers Law School.
Latest signals
After Dobbs’ decision in June, cases about voting rights, affirmative action, student loan debt forgiveness or anti-discrimination against LGBTQ couples are headed to the Supreme Court. Legal scholars and advocates fear a conservative 6-3 majority could erase protections and justice for marginalized communities.
During oral arguments Mondayconservative Supreme Court justices appeared to side with a Colorado web designer who believes her state is infringing on her free speech because anti-discrimination laws prohibit her from refusing to work for LGBT couples.
And during arguments in two affirmative action cases in late October, the same judges seemed balanced eliminate race-based university admissions.
‘there‘there’s really no reason to think that any of the cases that have been so heavily criticized … by any of the justices currently sitting on the Supreme Court are particularly safe on this pointt…’ – Kim Matcherson, Rutgers School of Law
Mutcherson, referring to the court’s directive, said the Supreme Court was in “cut and fire mode.”
“I feel like we’re in a very precarious situation where we live with what I very conveniently describe as a rogue United States Supreme Court. And the damage they can do and seem poised to do is significant,” Matcherson said. “And while this is not irreparable damage, it could have consequences for decades to come and for millions of people.”
Is the “settled law” no longer settled?
Both Mutcherson and Prohl noted that conservative justices called Roe v. Wade “settled law” in their Senate confirmation hearings, only to walk away from what they said. Therefore, any law passed can be subject to discussion.
“There is really no reason to believe that any of the cases that are subject to deep criticism … any of the justices currently sitting on the Supreme Court is particularly safe at this point, especially anything involving the interpretation of the Constitution,” Matcherson said.
Both Mutcherson and Prohl mentioned in previous interviews with NJ Spotlight News that it’s only a matter of time before cases challenging protections for marginalized communities make their way to the Supreme Court.
And Republican-majority states know this, continuing to use the US Supreme Court to their advantage. Dobbs v. Jackson was a lawsuit brought by the Mississippi Health Commissioner. Texas is tough of the Biden administration’s immigration policies and has been accused by lawyers and immigrant advocates of picking a sympathetic court to rule in her favor. That case went to the Supreme Court in November, and Justice Elena Kagan noted that the courts have been used as a way to stop immigration policies.
Termination of administration policy
“Immigration policy should be the zenith of the federal government and should be the zenith of the executive branch. And instead, we’re creating a system where a combination of states and courts can stop immigration policy,” Kagan said during oral arguments in the case.
The courts have also stopped other democratic policies. Student loan debt forgiveness, which advocates say will help advance racial equity, has been put on hold as states have gone to court to challenge the policy. The Supreme Court will hear the case early next year. The Deferred Action for Childhood Arrivals, or DACA, program is also no longer accepting new applicants since the Fifth Circuit Court of Appeals ruled the program unconstitutional in October, sending the case back to lower courts. It was a case also brought by Republican-majority states such as Texas, Alabama, Arkansas, Louisiana, Nebraska, South Carolina, West Virginia, Kansas and Mississippi.
Mutcherson said the “one light” is that people recognize their political power. She noted that since the Dobbs decision, November elections in Kansas and Kentucky have proposed amendments to restrict access to abortion, and majorities in both states voted against the proposals.
“I really think there’s an opportunity here for people to, on the one hand, stop being complacent and stop thinking, ‘Oh, well, you know, that if we have a right under the Constitution, it simply remains our right.’ This is simply not true. And secondly, to really think about how they mobilize and use power at the state level to create the kind of country they want to live in,” Matcherson said.
