- David Colenational legal director of the American Civil Liberties Union and professor of law and public policy at Georgetown University Law Center.
As the Supreme Court ends its term, Justice Stephen Breyer is officially retiring, and Judge Ketanji Brown Jackson takes his place as the country’s first Black woman justice, joining a court dominated by conservatives. We speak to ACLU national legal director David Cole about what can be done in the face of lifetime judicial appointments to the nation’s highest court who often rule counter to majority opinion in the country. “This is a radical court that is intruding upon our liberties,” says Cole. “It’s doing it all in the name of a commitment to a historic vision of the Constitution as it was drafted, when it was drafted, and imposing that on the American people, notwithstanding the fact that two centuries have intervened and circumstances are dramatically different today.”
AMY GOODMAN: This is Democracy Now!, democracynow.org. I’m Amy Goodman, with Nermeen Shaikh.
The Supreme Court is expected to issue its final two rulings of its current term today, one on climate and the other on whether President Biden can end the Trump-era “Remain in Mexico” program, which has blocked asylum seekers from entering the United States.
On Wednesday, Justice Stephen Breyer informed President Biden he would formally retire at noon today. Judge Ketanji Brown Jackson will then be sworn in, becoming the nation’s first Black female justice.
Over the past month, the far-right court has issued a series of rulings which could reshape the nation, from overturning Roe v. Wade to vastly expanding Second Amendment gun rights to chipping away at the separation of church and state.
To look more at the Supreme Court’s rulings, we’re joined by David Cole, national legal director of the American Civil Liberties Union, his recent op-ed for the L.A. Times headlined “The Supreme Court is not accountable to the people. So what can check its power?”
Welcome back to Democracy Now!, David Cole. Can you start off by just assessing what has taken place, the decisions this court has made? And then we can talk about what you feel can check its power.
DAVID COLE: Sure. So, this has been a real radical turn to the right by the court this term. And if you compare it to last term, last term the court decided almost all of its most controversial cases on narrow grounds, achieving consensus, very few decisions decided 5-4 or 6-3, many of the decisions 8-1, unanimous, 7 to 2. They really were looking to try to achieve consensus. This term, they’ve thrown moderation out, thrown consensus out, and virtually every controversial decision has been decided by a 6-to-3 or 5-to-4 vote.
And the conservative majority has upended the religion clauses, so that where it used to be that there were strict limits on government aid to religious schools, and you couldn’t have prayer in schools, this term the court has ruled that the states are compelled to support private religious indoctrination if they also support private secular schools, and that a state high school was compelled to allow a football coach, its football coach, to pray at the 50-yard line at the end of every game. It overturned a 50-year-old precedent in Dobbs, the Roe v. Wade decision overturned, a right, and for the first time eliminated a right that was — is central to the equal status of half of this country, and struck down over a hundred-year-old New York law that restricted people carrying guns in public, and earlier in the term struck down President Biden’s vaccine requirement for businesses of over a hundred people.
So this is a radical court that is intruding upon our liberties, our safety, and it’s doing it all in the name of a sort of commitment to a historic vision of the Constitution as it was drafted, when it was drafted, and imposing that on the American people, notwithstanding the fact that two centuries have intervened and circumstances are dramatically different today.
NERMEEN SHAIKH: So, David Cole, could you elaborate on this point that you made that the court appears to be much less interested in reaching consensus on these decisions, and what you think explains that, and then the arguments that you make in your L.A. Times piece on how the Supreme Court’s power can be checked?
DAVID COLE: So, what explains the sort of abandonment of consensus, I think, is just that the five justices — and when I talk about the five, it is Justice Thomas, Justice Alito and Trump’s three appointments, Kavanaugh, Barrett and Gorsuch — and they’ve just decided to flex their muscle. And they’re no longer interested in reaching narrow resolution.
I mean, the abortion case is sort of a case in point. As Chief Justice Roberts wrote in his separate opinion in that case, in which he did not join the other five in seeking to overturn Roe, all that was required to decide that case was whether a 15-week ban on abortion was constitutional or not. That ban could be upheld consistent with upholding the notion that women have a right to make a decision about whether to terminate a pregnancy, and simply saying, as Chief Justice Roberts said, that 15 weeks is a reasonable time to allow women to make that choice. Now, I disagree with that view, but that is a view that would decide the case without upending 50 years of precedent. The majority reached out and nonetheless decided to take on Roe, take on Casey, and overturn 20-plus cases that the court has decided since Roe that have affirmed the notion that it is a core aspect of women’s liberty to be able to control their bodies, control their families, control their lives by deciding when and whether to have a child. The only reason that the court overturned Roe v. Wade was that five justices now have the power to do it. It’s not — there’s no principled basis upon which they justify that overturning. It’s an exercise of raw power.
And, you know, they seek to justify it in the name of what they call originalism, this notion that the Constitution should only protect what it was understood to protect at the time it was adopted. Well, if you took that approach, which is the approach they took in Dobbs, not only would there not be a right to abortion, but there wouldn’t be a right to contraception. There wouldn’t be a right to marry someone of a different race or of the same sex. There wouldn’t be a right against forced sterilization. There wouldn’t be equal protection for women, because when the Equal Protection Clause was adopted in 1868, there was no suggestion that women were protected by it. Women didn’t even have the right to vote. And segregation would be legal again. We would have to overturn Brown v. Board of Education and resurrect Plessy v. Ferguson, because when the 14th Amendment was adopted, it was voted upon by a segregated Congress, and no one suggested that the segregation that was rampant around the country at that time was hereby being declared unconstitutional.
And so, this is a truly radical ideology. It’s held by five justices, maybe five-and-a- half, because sometimes Chief Justice Roberts joins it, but other times he doesn’t. And that’s enough to have a majority today on the Supreme Court. But when you look over the course of the history of the court, there have been about 116 justices. About six of them have been originalists, have taken this rigid view that the Constitution doesn’t evolve over time. The other hundred-plus justices have all taken the view that, no, the Constitution applies, like any other law, through the application of principles to new circumstances, recognizing changing conditions, so that it can govern the nation for centuries, which is what it has done. If you take an originalist sort of blindered historical approach to the Constitution, you would have to upend virtually everything that the court has decided over the last 200 years. And they — you know, they seem ready to do that, at least in certain cases of this term.
AMY GOODMAN: And so, can you talk today about what it means that Breyer is stepping down, Justice Breyer, and, most significantly, that the first Black woman will become a justice of the Supreme Court today, Ketanji Brown Jackson?
DAVID COLE: Well, you know, it’s about time on the first Black woman on the court, that’s for sure. I don’t think it’s going to change all that much, in truth, with respect to how the court rules. Justice Jackson will be, I think, a reliable and consistent voice for the vulnerable and for civil rights and civil liberties. Justice Breyer was, as well. There will still be a 6-to-3 partisan divide on the court.
So, I think what will change the court, if anything changes the court, is public reaction. If the public sort of sits back and says, “Oh my god! There’s nothing we can do. The court — you know, Trump’s justices have taken over. It’s hopeless. There’s no point,” then they’ll continue on their road of remaking constitutional law in a vision that rejects what virtually every other justice before them has taken. If, on the other hand, Americans stand up for the values and principles that we believe in, for values like the right of every woman to have an abortion if she doesn’t choose to bring a pregnancy to term, the right of states and local governments to protect our public safety by limiting guns, the right of all of us to keep church and state separate — if we stand up for those rights, if we organize for those rights, if we vote on the basis of those rights, those rights will be protected. And I think the court, if it sees that kind of response, might have some hesitation about continuing on its path. Courts — the Supreme Court rarely departs very far from where the country is. And when it does, there’s often a public reaction that sort of pushes the court back into its proper place. The court has departed very far from where the country is on both abortion and guns in its decisions this term. The question is whether we will push back.
NERMEEN SHAIKH: Briefly, The New York Times published the result of recent surveys carried out by Harvard, Stanford and the University of Texas on where precisely the public stands on all of these issues that the court has already ruled on. And with the exception of overturning Roe v. Wade, it seems as though the public is almost evenly divided. In other words, there are some cases in which 50 to 53% of the public agree with the court’s decision, and others in which the reverse is true. In other words, the difference is very minor. And given that, what can the public do? I mean, what would it mean for the public to act?
DAVID COLE: Yeah. So, that is true about some of the cases that the court decided this term that are not the ones we’re talking about today. But that is not true when it comes to the right to abortion. The polls have consistently shown that Americans believe that Roe should have been upheld, not overturned. It is not true when —
NERMEEN SHAIKH: Oh, yes, absolutely, in that case, yes.
DAVID COLE: Yes, well, and that —
NERMEEN SHAIKH: In the case of Roe —
DAVID COLE: Yes, and it is also not true with respect to the New York gun law. The polls consistently show people support gun control, reasonable gun control, support restrictions on the public carrying of weapons. I think that the polls show that New Yorkers, something like 85% of New Yorkers supported the law that the court struck down. So these are not close calls. This is a court that has really departed from where the country stands.
And, you know, I think the abortion case is really — it is the central decision, the most important decision, I think the worst decision, the court has issued in this century thus far. And it is the first time in the history of the court that it has wholly eliminated a constitutional right enjoyed by half of the country. It has overturned precedent in the past, but generally to expand rights, not to eliminate them altogether. And so, this is really a watershed.
AMY GOODMAN: We have 10 seconds.
DAVID COLE: And the question is: How do we respond? And we have to respond by standing up and fighting back.
AMY GOODMAN: David Cole, I want to thank you for being with us, ACLU national legal director. We’ll link to your Los Angeles Times op-ed, “The Supreme Court is not accountable to the people. So what can check its power?”
Next up, Michigan’s Supreme Court threw out charges against former Michigan Governor Rick Snyder and other officials for their role in the poisoning of an American city, the Flint water crisis. We’ll go to Flint to get response. Stay with us.