The current Roberts Court, with its so-called originalists, better named the far-right ideologues, has shown in its decisions its actual disdain for legal precedent and the Constitution, which it claims to believe, as some believe the Bible, literally. Rather it is working to increase states rights. The reason for this is because the far-right movement in the Republican party adopted a policy some years ago to focus on control of state governments. I’ll provide more data on this in the future, but here I want to look at the impact of three recent Supreme Court decisions and the Court’s ignorance of judicial precedent and U.S. history.
The Ninth Amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.[i]
The Tenth Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Oklahoma v Castro-Huerta [21-429, June 29, 2022
The 5-4 opinion of Oklahoma v Castro-Huerta threw out centuries of legal precedent about the sovereignty of Indian Country giving to states ‘rights’ that are wrong. Note that Indian country is the U.S. government term for all Indian reservations, and outside reservations all dependent Indian communities and trust and restricted allotments to Native Americans.[ii]
Justice Kavanaugh wrote the deciding opinion: “The jurisdictional dispute in this case arises because Oklahoma’s territory includes Indian country. In the early Republic, the Federal Government sometimes treated Indian country as separate from state territory. See Worcester v. Georgia, 6 Pet. 515. But that view has long since been abandoned…. Indian country is part of the State, not separate from the State. To be sure, under this Court’s precedents, federal law may preempt that state jurisdiction in certain circumstances. But otherwise, as a matter of state sovereignty, a State has jurisdiction over all of its territory, including Indian country.” [None of that is true. There are some cases that support that position if you cherry-pick them, but check out the dissenting opinion below.]
Ironically, the dissenting opinion was written by Justice Gorsuch, another Trump appointee and “originalist,” joined by Justices Breyer, Sotomayor, and Kagan. It states: “The decision [Worcester v. Georgia, 6 Pet. 515, 561 (1832)] established a foundational rule that would persist for over 200 years: Native American Tribes retain their sovereignty unless and until Congress ordains otherwise…. Where this Court once stood firm, today it wilts. After the Cherokee’s exile to what became Oklahoma, the federal government promised the Tribe that it would remain forever free from interference by state authorities.” So much for our federal government’s respect of Native American rights, and so much for Kavanaugh’s understanding of legal and historical law. [iii]
It’s interesting that Kavanaugh and Gorsuch, both “originalists,” would disagree on this key issue of states’ rights.
In 1831, Chief Justice John Marshall wrote in the 1831 Cherokee Nation v Georgia decision: “Though the Indians are acknowledged to have an unquestionable and, heretofore, unquestioned right to the lands they occupy until that right shall be extinguished by a voluntary cession to our government, yet it may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may more correctly, perhaps, be denominated domestic dependent nations.”[iv]
No, Indian Country is NOT part of a state’s jurisdiction.
Dobbs v Jackson Women’s Health Organization [19–1392 , June 24, 2022]
As Justice Alito wrote in the majority opinion of the now infamous Dobbs v Jackson Women’s Health Organization: “In interpreting what is meant by the Fourteenth Amendment’s reference to ‘liberty,’ we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy. That is why the Court has long been ‘reluctant’ to recognize rights that are not mentioned in the Constitution…. ‘Liberty’ is a capacious term…. Instead, guided by the history and tradition that map the essential components of our Nation’s concept of ordered liberty, we must ask what the Fourteenth Amendment means by the term ‘liberty.’[v]
So instead of using the Constitution as they claim to be the final word, they rely on history, but they don’t seem to know their history very well.
Justice Alito relied on mid-19th century US century laws and ‘majority’ thinking as obvious from his references. But what was majority thinking then? Well, first it was only the ‘thinking’ of white males, as neither women nor Blacks had the right to vote, own property, nor have much of a voice in public affairs.
As for women, this from the Harvard Business School, “During most of American history, women’s lives in most states were circumscribed by common law brought to North America by English colonists. These marriage and property laws, or ‘coverture,’ stipulated that a married woman did not have a separate legal existence from her husband. A married woman or feme covert was a dependent, like an underage child or a slave, and could not own property in her own name or control her own earnings, except under very specific circumstances.”[vi] Although there were rumblings about changes for women earlier, no significant changes happened until the late 19th and 20th centuries.
More on mid-19th century thinking: Presumably, Blacks could own property, but consider this succinct description about Black land ownership: “Black land loss – the loss of land ownership and rights – dates back to the mid-19th century, where in some states Black Americans were prohibited from owning land after the Civil War ended. Meanwhile, the Emancipation Proclamation freed slaves, but did not guarantee a right to land ownership. While the ‘40 acres and a mule’ promise would have been the first large-scale reparations attempt for newly freed slaves, it was promptly overturned by Andrew Johnson during the early months of his presidency.”[vii] Also, the Ku Klux Klan was formed in that period, 1865 to be exact, in Tennessee.
Mid-19th century history in the United States was not a period to be proud of nor to want to replicate. But that’s not even the entire issue. Consider the issue of abortion.
Kimberly Hamblin, Ph.D., a feminist scholar and professor of history and global and intercultural studies at Miami University in Oxford, Ohio, stated: ‘I think it’s important for people to know that this idea that fetuses somehow have rights is very new, and what’s even more new is the idea that somehow these so-called fetal rights should trump those of living, breathing women and girls.’
Before 1840, abortion was widespread and largely-stigma-free for American women. It was so commonplace that newspapers advertised abortion services to cure ‘obstructed menses’ with herbal remedies. When it came to abortion, the legal system used the quickening doctrine to decide on the legality of abortion. ‘Quickening’ is defined as the moment when the fetus’s movement can be detected, usually around weeks 22 to 24 of pregnancy.
George E. Harmon, M.D., president of the American Medical Association, has called the opinion a “dangerous intrusion into the practice of medicine…. As discussed in an amicus brief filed with the Court, the AMA and more than two dozen leading medical organizations believe abortion is safe medical care that is a decision to be made between the patient and the physician, subject to the physician’s clinical judgment, and the patient’s informed consent.”
ABC and the Washington Post conducted a poll…. It found that 54 percent of Americans think Roe v Wade should be upheld, while 28 percent said it should be overturned and 18 percent had no opinion. All respected polls on this topic show similar results, several indicating a higher percentage in favor of keeping Roe v Wade.”[viii]
Consider the 9th Amendment, abortion was a right enjoyed by the people in the majority of our history. Also, refer back to the last phrase in the 10th Amendment. The Supreme Court has just removed a right that the majority of the people want. Their decision essentially denies the people a right that should be theirs according to the Bill of Rights.
Those who advocate for complete liberty in terms of the 2nd Amendment and want such liberty in terms of owning assault rifles, no background checks in all gun purchase situations, and the like, might take umbrage with the concept of “ordered liberty.”
West Virginia v Environmental Protection Agency [20–1530, June 30, 2022][ix]
Chief Justice Roberts wrote the majority opinion: “Where the statute at issue is one that confers authority upon an administrative agency, that inquiry must be ‘shaped, at least in some measure, by the nature of the question presented’—whether Congress in fact meant to confer the power the agency has asserted.”
“Since the Clean Air Act was enacted 50 years ago, EPA has used its authority to ‘setting performance standards based on measures that would reduce pollution by causing plants to operate more cleanly. In 2015, however, EPA issued a new rule concluding that the ‘best system of emission reduction’ for existing coal-fired power plants included a requirement that such facilities reduce their own production of electricity, or subsidize increased generation by natural gas, wind, or solar sources. The question before us is whether this broader conception of EPA’s authority is within the power granted to it by the Clean Air Act…. We presume that ‘Congress intends to make major policy decisions itself, not leave those decisions to agencies.’ United States Telecom Assn. v. FCC, 855 F. 3d 381, 419 (CADC 2017).” [patently ludicrous in these times as Congress is stymied by inaction.] Back to Roberts: “…to attain the necessary ‘critical CO2 reductions,’ EPA adopted what it called a ‘broader, forward-thinking approach to the design’ of Section 111 regulations. Id., at 64703. Rather than focus on improving the performance of individual sources, it would ‘improve the overall power system by lowering the carbon intensity of power generation.’ Ibid. [Imagine EPA wanted to be ‘forward thinking’!]. And it would do that by forcing a shift throughout the power grid from one type of energy source to another…. We also find it ‘highly unlikely that Congress would leave’ to ‘agency discretion’ the decision of how much coal- based generation there should be over the coming decades.” [I’m sure there’s a smile on Sen. Manchin’s face with his coal mines and family fortune tied up with them.][x]
Justice Kagan joined by Justices Sotomayor and Breyer, wrote the dissenting opinion. The first sentence says it all, followed by extensive legal arguments, “Today, the Court strips the Environmental Protection Agency (EPA) of the power Congress gave it to respond to ‘the most pressing environmental challenge of our time…. Congress charged EPA with addressing those potentially catastrophic harms, including through regulation of fossil fuel-fired power plants. Section 111 of the Clean Air Act directs EPA to regulate stationary sources of any substance that ‘causes, or contributes significantly to, air pollution’ and that ‘may reasonably be anticipated to endanger public health or welfare…. The Court will not allow the Clean Air Act to work as Congress instructed. The Court, rather than Congress, will decide how much regulation is too much. The subject matter of the regulation here makes the Court’s intervention all the more troubling. Whatever else this Court may know about, it does not have a clue about how to address climate change. And let’s say the obvious: The stakes here are high. Yet the Court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions. The Court appoints itself—instead of Congress or the expert agency—the decisionmaker on climate policy. I cannot think of many things more frightening.’”[xi]
This case is an anti-Executive branch case and indirectly a states rights case. Without the EPA regulations and guidance, states can in many cases do whatever they want.
The Guardian said it clearly: “The theory of state supremacy, supposedly enshrined in the final [Tenth] amendment of the Bill of Rights, has a sordid history of white supremacy and reactionary politics.”[xii] Interesting how so many forget that last phrase: “…or to the people.”
LINKS
[i] All emphases that are mine are in bold. If the emphasis is made by the person quoted or within the original document, it is in italic and quotation marks.
[ii] www.acf.hhs.gov/ana/fact-sheet/american-indians-and-alaska-natives-indian-country-and-reservations
[iii] www.supremecourt.gov/search.aspx?Search=Oklahoma+v+Castro-Huerta&type=Site
[iv] https://iowaculture.gov/history/education/educator-resources/primary-source-sets/american-indian-removal-and-relocation/us-supreme-court#:~:text=Marshall%20and%20the%20U.S.%20Supreme,bring%20action%20in%20U.S.%20courts
[v] www.supremecourt.gov/search.aspx?Search=Dobbs+v+Jackson&type=Site
[vi] www.library.hbs.edu/hc/wes/collections/women_law/
[vi] www.supremecourt.gov/search.aspx?Search=West+Virginia+v+EPA&type=Site
[vii] waterkeeperschesapeake.org/a-brief-history-of-black-land-ownership-in-the-u-s/#
[viii] www.healthline.com/health-news/the-history-of-abortion-rights-in-the-u-s#Overturning-Roe-v.-Wade-is-Highly-Unpopular
[ix] www.epa.gov/clean-air-act-overview/plain-english-guide-clean-air-act
[xi] www.theguardian.com/commentisfree/2022/jul/21/supreme-court-native-american-rights-target
Our newest Supreme Court Associate Justice, Ketanji Brown Jackson.
Very informative and well researched. Thanks!