The Supreme Court threw normal America a few bones this term, since John Roberts knew the court’s, and his, reputation was down there in Elizabeth Holmes territory. Roberts and Brett Kavanaugh decided not to kill voting rights, and those two and Amy Coney Barrett rejected the independent state legislature theory. Then, as the term drew to a close, the court reverted to the mean by ending affirmative action in colleges and allowing business owners to discriminate against LGBTQ people.
Did they fool anybody? Maybe, to some extent. But the right-wing assault on freedom continues. We already know from California and a couple other states where affirmative action has been reversed that Black enrollment at prestige universities has gone down; a tool that Lyndon Johnson put in place nearly 60 years ago is now blunted.
In future terms, this conservative majority is going to do damage on all kinds of fronts. Already on the docket for the 2023–2024 term are cases that will revisit the question of racial gerrymandering; will consider an important point of criminal due process; will determine whether the funding mechanism for the Consumer Financial Protection Bureau, or CFPB, is constitutional; and most important of all, will seek to strike down “Chevron deference,” which grants executive agencies broad authority to interpret and implement laws passed by Congress. (Striking down the deference, which the conservative majority is widely expected to do, will vastly constrict the federal government’s ability to enforce aggressive regulatory laws.)
So imagine sitting here one year from today. It’s entirely possible, I’d say likely, that the court’s conservatives at the very least will have thrown the existence of the CFPB into doubt and opened the door to endless lawsuits from people and organizations looking to cut the federal government down to size. On the Chevron challenge, captioned Loper Bright Enterprises v. Raimondo, the right will benefit from the fact that Ketanji Brown Jackson has recused herself, as she did in this week’s Harvard affirmative action case, because she participated in earlier oral arguments in the case (some justices do have scruples).
And then, someday—and we can be sure that right-wing activists are already filing the lawsuits they hope will work their way up to the Supremes—we may be saying goodbye, same-sex marriage. Adieu, right to contraception. Auf Wiedersehen, one person, one vote. This last one, which gets a lot less press than the others, will functionally destroy democracy by allowing state legislatures to draw—legally—districts that give rural people far more representation in legislatures than urban people.
The usual liberal narrative here is that this six-member majority is a mighty frigate being skippered by the unstoppable Leonard Leo, former head of the Federal Society, and we are doomed to a generation of right-wing decisions that will take us back to the nineteenth century. That might well be right. But it is not inevitable. There is a crucial distinction between recognizing a likely reality and submitting to it. The former is fine and necessary and says we still have to fight because we never know what the future holds. The latter constitutes giving up.
Joe Biden and his administration are in the former camp. Biden has named more federal judges to the bench in his first 28 months than the previous three presidents—a total of 136 “Article III” judges (federal judges nominated by the president and confirmed by the Senate). And more meaningful than the number is the type, as two-thirds of those nominees are women and two-thirds are people of color. Many are from plainly progressive backgrounds in the law.
In just the last month or so, these judges are among those confirmed:
• Nusrat Choudhury, the first Muslim American woman (and first Bangladeshi woman) to be named to the federal bench; a civil rights lawyer with the ACLU
• Natasha Merle, an African American woman out of the NAACP Legal Defense and Education Fund
• Dale Ho, an Asian American voting rights attorney
• Casey Pitts, an openly LGBTQ labor lawyer
• Hernán Vera, a Latino former staff attorney at the Mexican American Legal Defense and Education Fund
Someday, the high court will have two or three people like this, and the decisions will start breaking our way again. In the meantime, momentum is building for changing the court—at least, say, ending lifetime appointments. Ending lifetime tenure polls well and is hardly the radical measure the right makes it out to be. And most of all, liberals are casting their presidential and congressional votes with the Supreme Court in mind. It took long enough, but after Dobbs, we’re here.
Finally, it’s worth remembering that a Supreme Court decision is not the end of a fight. In many ways, it’s the beginning. Since Dobbs, the states that have moved to restrict abortion rights have dominated the headlines, and quite rightly. But abortion rights are protected in some way, shape, or form in roughly half the states. Pro-choice organizations are active on a range of fronts, working to ensure that women from red states seeking abortions can get to “safe harbor” states. And support for abortion rights has shot up in the polls.
The modern right has achieved its successes knowing that it represents a minority of the country. This is why its leaders lie all the time about their true intent. Before Dobbs, they said overturning Roe and returning the question to the states was their goal. Now we see that that wasn’t true. They want a federal ban. The presidential contenders dance around the question, but it’s pretty obvious where the movement and the base stand—and point me to one high-profile instance where GOP elected officials have defied the wishes of their base.
Pro-choice Americans are the majority. So are Americans who want reasonable voting rights protections for minorities, a fair chance for labor unions to be active, a federal government that can implement laws Congress passes, and more. The iron-willed minority has won a lot of battles, and it will win more, and the consequences will sometimes be devastating. But Dobbs was a turning point. The people have woken up. Progressives are filling the federal bench. This isn’t a story of victory yet. But neither is it one of total despair.
This article first appeared in Fighting Words, a weekly TNR newsletter authored by editor Michael Tomasky. Sign up here.