Bold, confident, conservative Supreme Court ready to move further right

This is not the Supreme Court most Americans are familiar with.

Since Chief Justice Earl Warren retired in 1969, ending an era of liberal activism, the Supreme Court has been dominated by moderates.

They included Lewis Powell, a soft-spoken Confederate attorney appointed by President Nixon, and Sandra Day O’Connor and Anthony Kennedy, both appointed by President Reagan.

They were not scholars and did not espouse any ideology or methodology for deciding cases. But they brought wisdom and practical experience to decide the toughest issues and, in O’Connor’s case, political know-how. She was the Republican chair of the Arizona Senate before becoming a judge, and she knew how to compromise.

Year after year they kept the court on a middle ground. Most terms ended with a mix of decisions, some cheering Conservatives and others encouraging Liberals.

That has all changed. There is no longer a moderate in the middle, as evidenced by three big conservative wins this week. Judges on Friday struck down Roe vs. Wade, the landmark 1973 opinion establishing a woman’s right to an abortion. That comes a day after they scrapped a centuries-old New York law restricting the carrying of concealed handguns on the street. On Tuesday, they overturned a Maine law that banned parents from using state subsidies to pay tuition fees at religious schools.

With the exception of Chief Justice John G. Roberts, the Supreme Court’s most conservative justices are not interested in finding a middle ground or clinging to the decisions of decades past. They believe the correct answer is to be found in the “original” history of the Constitution as written in the 18th or 19th centuries, an era when women and African Americans had no voice or voting rights.

The rulings on abortion, guns and religion reflect how far the court has moved.

In the fall of 1971, Lewis Powell had just arrived as the judiciary was considering the abortion issue. Years earlier, in his law office, he had counseled a troubled young man who confided in him that his girlfriend had died of a failed abortion. Men and women of his day knew such stories of tragic deaths.

To the surprise of his new colleagues, Powell said abortion laws needed to be changed and he would support a new right to abortion. The Constitution protects the right to liberty, he said in a 1979 interview, and that includes “the liberty to make certain very personal choices that are terribly important to people. It is difficult to imagine a decision more personal or important to a pregnant woman than whether or not she will have a child.”

After Powell spoke, it was clear that there was a majority within the court to rule that women have the right to choose to have an abortion. And that’s exactly what happened when the court ruled Roe vs. Wade 7-2.

Law can be like physics. Every action has an equal and opposite reaction. In this case, shortly after the Supreme Court’s decision, a powerful “right to life” movement emerged and found a home in the Republican Party.

Two decades later, the court had been transformed by judges appointed by Presidents Reagan and George HW Bush. And it seemed poised to overturn abortion rights.

But surprisingly, O’Connor and Kennedy agreed to uphold the law. Kennedy had agonized over the abortion issue. He was a Catholic who believed that abortion was immoral, but he also believed that the Constitution protected individual liberty from government dictates.

This decision in Planned Parenthood vs. Casey came as a shock to the conservative right-wing movement. The lesson they took from this was that future Republican candidates must be steadfastly conservative on pro-abortion. Influential conservative rights groups like the Federalist Society began scrubbing the backgrounds of potential Supreme Court justices to ensure they would not shy away from overthrowing Roe.

Among those who passed that test was Samuel A. Alito Jr., a federal appeals judge who, as a young attorney for the Reagan administration, said he looked forward to arguing for Roe vs. Wade’s reversal. He was appointed to the Court in 2006 by President George W. Bush.

Alito voted for a 5-4 majority in Friday’s decision in Dobbs vs. Jackson Women’s Health Organization. The Roe decision was “enormously wrong” from the start, he said, because the protections of liberty and equality in the 14th Amendment of 1868 could not be understood as creating an abortion right.

Towards the end of his 79-page op-ed, Alito said state legislatures have nearly unlimited powers to ban or criminalize abortion. The “legitimate interests of the state include the respect and preservation of prenatal life at all stages of development,” he said. Possible exceptions in cases of rape, incest or severe fetal malformation were not mentioned. Alito was joined by the court’s other most conservative justices – Clarence Thomas, Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett.

Chief Justice Roberts, perhaps modeling O’Connor and Kennedy, tried to suggest a middle ground. “I would take a more measured course,” he said, upholding Mississippi’s 15-week limit on abortions but not jettisoning Roe. He said the court’s precedents made it clear that women have a “right to choose” abortion, and that means they should have “a reasonable opportunity to choose.” At 15 weeks, women knew they were pregnant, he said, so the right “need not be extended any further.”

His proposal could have resulted in a moderately conservative verdict, in line with public opinion. Most Americans support early pregnancy abortion rights, but most say they oppose later abortions. A change by a judge could have changed the outcome, but none of his Conservative peers were willing to join the Chief Justice.

While the court gave states broad powers to limit abortion, its gun decision cast doubt on all sorts of state and local laws that restrict firearms.

There, too, the court moved away from a moderately conservative position that Kennedy had staked out.

For most of its history, the court ruled that the 2nd Amendment was intended to ensure that armed citizens could respond to a crisis as part of a “well-regulated militia” and give states wide latitude in regulating the ownership and possession of firearms admitted. In recent decades, gun rights advocates have pushed a different interpretation, centered on the closing words of the amendment that “the right of the people to possess and bear arms shall not be violated.”

In 2008, in a 5-4 decision, the court adopted this reasoning, ruling that the 2nd Amendment protects a person’s right to be armed in self-defense. His decision struck down an unusually strict ordinance in Washington, DC banning all private possession of handguns; Two years later, the Chicago court overturned a similar ordinance.

However, the impact of these judgments was minimal. Kennedy believed both that people had the right to have a gun in their home and that firearms were subject to proper regulation by cities and states. For a decade, the court dismissed gun rights challenges to laws and regulations, including several from California.

After Kennedy retired in 2018 and Kavanaugh and Barrett joined the court, the conservative bloc was poised to expand the scope of the 2nd Amendment.

“The constitutional right to bear arms in public in self-defense is not a second-class right,” Thomas wrote in the New York State Rifle & Pistol Assn. against Brno. The decision repealed laws in New York, California and four other states that make it difficult for gun owners to obtain concealed-carry licenses.

However, the ramifications of this ruling will not be known for years, and it raises many questions. Does that mean there is a constitutional right to carry a loaded gun when walking down 5th Avenue in New York? Or in the subway or in restaurants and bars? Does that also mean that an 18 year old has the right to buy and carry an automatic rifle? The court’s opinion does not attempt to answer these questions, but notes that guns are prohibited in courthouses.

The new court is also poised to overturn another compromise dating back to the 1970s on the role of affirmative action in college and university admissions.

In 1978, the court disagreed over whether to reject a University of California policy allowing multiple places for minority students at UC Davis Medical School. Four judges considered this an illegal quota and four others considered it appropriate affirmative action.

Powell was in the middle. He thought the suspensions were illegal, but he wrote appreciatively of an admissions policy that used a student’s race as a “plus” factor to create diversity on campus.

In Regents of the University of California vs. Bakke, Powell set the standard for admissions policy and was later upheld by O’Connor and Kennedy.

This fall, judges will take up antidiscrimination challenges to admissions policies at Harvard and the University of North Carolina. They will almost certainly decide that any use of race in registrations is illegal and unconstitutional.

The court’s three Trump appointees — Gorsuch, Kavanaugh and Barrett — are new, but they’ve already made a powerful impact. They are showing all the signs that they are ready to move forward with a conservative agenda as the middle-of-the-road philosophy of O’Connor and Kennedy slips further in the court’s rearview mirror.