This is what an unconstrained right-wing Supreme Court looks like

This is what an unconstrained right-wing Supreme Court looks like

Opinion by 

Paul Waldman

Columnist

Today at 12:48 p.m. EDT

It is perfectly accurate to react to the Supreme Court’s validation of the Texas law banning nearly all abortions by saying, “That’s it. Roe v. Wade is done for.” That is almost certainly true. But the court’s action is even more frightening than that. The legal future that those who were dismissed as alarmists warned about is upon us, and it goes way beyond abortion.

We’ve now gotten a glimpse of how disturbing America’s future looks from what just happened in Texas, and what five conservative justices on the Supreme Court just did in response to it.

A newly passed Texas law, S.B. 8, prohibits abortion after six weeks from a woman’s last menstrual period — when many women don’t even know they’re pregnant. This alone is a blatant violation of Roe v. Wade and Planned Parenthood v. Casey, the two cases that set the parameters of abortion law.

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When presented with such a clearly unconstitutional state law, the Supreme Court would ordinarily issue a stay that prevents the law from taking effect while the legal questions are resolved. Instead, the five most conservative justices — which didn’t include Chief Justice John G. Roberts Jr., who sided with the three liberals — allowed the law to take effect, all but shutting down abortion in Texas.

The reed on which they hung their decision was a bit of legislative legerdemain: Instead of having the state itself enforce S.B. 8, Texas allows any person in America to sue anyone they believe “aids or abets” someone getting an abortion after six weeks. The person bringing the lawsuit could be entitled to at least $10,000 in damages.

This vigilante enforcement system is not only horrifying as a practical matter; it was also a clear attempt by the legislature to circumvent judicial review. Ordinarily, challenges to a law are brought against officials charged with enforcing it, such as an attorney general or a government department. But Texas now says there isn’t anyone that can be sued to challenge the law, because officials aren’t the ones enforcing it.

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Five conservatives on the court essentially said, Good one there; you really got us with that maneuver. The law can take effect. Or as they put it in their brief order, the case “presents complex and novel antecedent procedural questions.”

Try to imagine that a Democratic state legislature had performed a similar legal somersault to force a Christian organization to respect the rights of gay people, or to restrict gun rights. The idea that the court would allow such a law to take effect is laughable. As Justice Sonia Sotomayor wrote in a blistering dissent, “It cannot be the case that a State can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry.”

But apparently it can. There is little remaining doubt that the court will overturn Roe, and even before it gets around to this, it will give a nod to any restriction on women’s rights that a far-right state legislature can devise.

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That is the next stage, one that has surely already begun. Around the country, Republican legislators are no doubt brainstorming to come up with their own creative ways not just to restrict abortion but also to accomplish all kinds of goals. This vigilante strategy could be very useful. How about, as Norm Ornstein suggests, a law allowing anyone to sue local election officials for $10,000 if they think there was fraud in an election? The possibilities are endless.

What’s so important about the Supreme Court allowing S.B. 8 to take effect isn’t only the practical impact on women’s rights; it’s also what it says about the liberation of the court’s conservatives. They’re going to do what they want, and they’re clearly unconcerned about precedent, procedure, fundamental rights or what anyone thinks about it.

Political actors are always constrained by what they believe the public will tolerate; go too far and your party may be punished at the polls. But Republicans have structured their edifice of minority rule precisely to insulate themselves from public accountability. If, for instance, you’ve gerrymandered your state so thoroughly that even when more people vote for the other party you still control the legislature, what’s to stop you from letting your fantasies run wild?

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The Supreme Court’s conservatives — at least five of them — now seem to see things in the same way. They ask themselves: What’s to stop us? And with a 6-to-3 supermajority, the answer is: nothing.

Think ahead to the next few years. National legislation will be a grinding stalemate. Because of the ludicrous commitment to the filibuster to which a few of them cling, Democrats will likely pass just two more significant bills this year — the infrastructure and budget reconciliation bills — and no more.

That’s all we’ll get, and in 2022 there will be just one reconciliation bill. Then Republicans will likely take back one or more houses of Congress in the midterms, and there will be no more meaningful legislating for the remainder of President Biden’s first term.

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One can then easily imagine Biden being reelected in 2024 while Republicans control at least one house, enabling them to keep stymieing the Democratic agenda. Meanwhile, the Supreme Court will go further and further in refashioning America according to its far-right vision. It could wage a kind of revanchist crusade against not just liberalism but also modernity itself, striking down long-established national laws and rubber-stamping whatever radicalism emerges from red-state capitals.

And if most Americans don’t like it? Too bad. The court couldn’t care less.