Please excuse your family, friends, neighbors and colleagues if they are confused by the Supreme Court.
One day, the Court that Trump Built says states cannot decide for themselves whether to let guns proliferate in public. The Constitution, apparently, says virtually all Americans can take them to the streets.
The next day, the same conservative justices say the Constitution does not protect a woman’s right to choose an abortion. That decision should be left up to the states.
Never mind that in the case of guns, the Second Amendment gives people the right to “keep and bear arms” because the fledgling nation of 1791 needed a “well-regulated militia.” It wasn’t to protect every 18-year-old’s right to shoot up an elementary school, supermarket or church with an AR-15.
And never mind that when it comes to abortion, the 14th Amendment forbids laws that “deprive any person of life, liberty or property.” The liberty of women to control their own bodies apparently doesn’t merit inclusion, which in turn will endanger many of their lives.
Most of the court’s conservatives like to tie themselves in straitjackets when it comes to decisions like these. Follow the Founders, they say. Stick to the text of the Constitution. So what if muskets were the weapons of choice in the 18th century, and women lacked the right to vote until the 20th.
Honor precedent. Or not.
Americans’ confusion might stem from the justices’ confirmation hearings, when they pledged to honor the court’s precedents. Of Roe v. Wade (1973), Justice Neil Gorsuch said, “It has been reaffirmed many times.” Of Planned Parenthood v. Casey (1992), Justice Brett Kavanaugh called it “precedent on precedent.” Of the traditional regard for such precedents, Justice Amy Coney Barrett pledged to “follow the rules of stare decisis.”
Roe v. Wade is gone. Now, it’s citizens who will decide.
Except when they don’t.
You’ve got to hand it to the conservatives, however, when it comes to sticking to their beliefs. Unlike the lawmakers who inhabit the other two branches, the justices weren’t influenced by politics the past two days; their rulings on guns and abortion are likely to galvanize Democrats and liberals. Nor did they kowtow to current events, choosing instead to broaden gun rights on the heels of several mass shootings.
More Opinion on abortion:
Up next term: affirmative action in university admissions. Look for the court to reverse rulings from the past two decades that upheld the limited use of racial preferences.
Also on the chopping block: state laws prohibiting discrimination against LGBTQ customers in the marketplace. The court appears likely to side with merchants who refuse to serve same-sex weddings.
How did we get here? Senate Republicans blocked President Barack Obama’s third Supreme Court nominee in 2016, leading to Gorsuch’s confirmation a year later. Associate Justice Anthony Kennedy, a Ronald Reagan nominee who nonetheless defended abortion, affirmative action and LGBTQ rights, retired in 2018 and was replaced by Kavanaugh. Associate Justice Ruth Bader Ginsburg died in 2020 and was replaced by Barrett.
My mom had an abortion almost 50 years ago. My family is finally talking about her decision.
Trump’s three judges all were born during or shortly after Lyndon Johnson’s Great Society, when liberals ruled the roost. In all likelihood, they will be on the high court for another 30 years or more. That does not bode well for progressives.
Nor does it bode well for the reputation of the court, at least until now the most popular of the nation’s three branches of government. Consider: In the case of guns, it decided that New York has had an unconstitutional law on its books for the past 111 years. In the case of abortion, it said a mere 49 years had passed since the justices’ predecessors issued a ruling that was “egregiously wrong,” with “exceptionally weak” reasoning.
History, tradition and confusion
Instead, the Court that Trump Built said, guns should be regulated – or not – based on the nation’s history and tradition. Ah, things were so much simpler in 1791.
And when it comes to abortion, Kavanaugh in particular stressed that the court should be “neutral” by putting its thumb on the side of political state legislators, rather than, say, women.
So off they go, these conservatives, to hide behind their interpretation of what the Founders said in the 18th century and what it means today. Liberal Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan referred to it as a “pinched view of how to read our Constitution.”
The rest of us might just call it confusing.
Richard Wolf reported on the Supreme Court, the White House and Congress during a 45-year career in journalism. Follow him on Twitter: @richardjwolf