There has been a lot of speculation and ill temper over the current state of the court. With leftist pundits and media shouting from on high that The Supreme Court is somehow damaged because there currently exists within it, a conservative majority. With calls to pack the court by adding a number of justices and filling those vacancies with liberal and/or far leftist justices. But is the court really broken?
First, we need to take a look at what has brought about the cause for alarm and see if those concerns even justify the assertions that have been made. The root cause for all this public debate has been three cases, and they are:
New York State Rifle & Pistol Assn., Inc. v. Bruen
In the case of New York State Rifle & Pistol Assn., Inc. v. Bruen, the court ruled that the provision in New York’s 1911 Sullivan Act which requires a person to show “proper cause” for obtaining a concealed carry permit, was unconstitutional. The leftist media, in the wake of two mass shootings, rushed to condemn the decision, stating that the court was going to turn the country into the “wild west”. But what does the decision really mean?
The second amendment is very specific in that it states our right to bear arms “shall not be infringed”. The Sullivan Act, rather than creating an agency that will issue a concealed carry permit if the appropriate criteria are met, instead allows for the subjective opinion of a single bureaucrat to deny such a request for any reason they choose. In this ruling the court held that the ability to carry a firearm was constitutionally protected under the second amendment. As such the requirement to show “proper cause” could not be used as part of the application process, and the state must issue permits to anyone who can meet a clearly defined set of criteria, such as a background check.
Does this ruling take us back to the “wild west”? No. Instead it requires the State of New York to apply their permit law equally and without subjective judgement.
Dobbs v. Jackson Women’s Health Organization
This case above all others within the last decade has caused the most uproar. Simply because it overturns two previous cases that removed the right of the state to create laws governing pregnancy abortion. The first reaction from the left was a call for violence against the court and the justices who voted in favor of it. Shouting that they had made abortion illegal and taken away women’s rights. Did they?
The two decisions that were overturned were Roe v Wade and Planned Parenthood v Casey. Both of these cases reinforce each other and hold that abortions are protected under The Constitution. In their decision to overturn these cases, the court held that abortion did not meet the requirements to be considered an unenumerated right under the 9th amendment, nor was there any reasonable connection with abortion to the 14th amendment via a perceived right to privacy. In short these earlier decisions were flawed and in so deciding, the court had overreached and violated the separation of powers by enacting law. By overturning these rulings the court removed itself from the legislative process.
So what does that mean, and did the court make abortion illegal? The short answer to that question is, no. The court did not make abortion illegal. In point of fact, the court removed itself from the discussion all together, and remanded such decisions to the states themselves. In the wake of that decision, some of the states enacted laws, or had so-called “trigger laws” on the books that either restricted abortions, or made them illegal in all but the most dire circumstances, i.e. a woman’s health.
So does this take away women’s “right to abortion”. No. Since constitutionally there is no “right to abortion” to begin with, the court took nothing away.
West Virginia v. EPA
In this case the EPA attempted to force existing fossil fuel power plants to curtail their own production of energy and instead fund or otherwise create “clean energy” production via wind or solar. The court held that the EPA has no mandate in either its charter nor the current available legislation on the books to regulate existing power plants by forcing them to shift technology, nor do they have any mandate to curtail emissions of carbon dioxide. The left and the media, as in the previous cases rushed to judgement, and stated that the court had ”gutted the EPA”. Did it?
Again, the answer is no. The court did not “gut the EPA”. Instead the court simply stated that in order for the EPA to create and enforce such regulation, it would need a clearly defined mandate from the federal government in the form of new legislation to give it that power. All of it’s current mandates remain in force and the EPA can continue to regulate power production emissions based on it’s current statues.
Ok so what does all this mean?
In these three decisions, the court is sending a message. For the last several decades The Supreme Court has been seen by the left as a kind of rubber stamp for expanding or even creating power that doesn’t exist anywhere in The Constitution. Congress especially has used the court to keep from getting involved so legislators who want to get re-elected can simply throw up their hands and say “That’s a SCOTUS problem.” when asked how they plan to deal with a particular issue. Or worse, use decisions that rest on a poor foundation, to enrage their voters by suggesting a conservative President will “take away their rights” by appointing justices who would overturn such rulings. Since the justices are not elected but rather appointed for life, it shifts the responsibility unconstitutionally, and creates divisive rhetoric regarding the court where none should even exist.
The court has clearly had enough with these types of cases, and essentially told The Congress and The President, that it will no longer be participating in the legislative process. Congress must do the job that it is constitutionally tasked with and not abuse the judicial process. Nor may the Executive branch skirt the legislative process by instructing the litany of alphabet agencies to enforce laws that do not exist.
In short, if the people wish to create new law, The Congress or their state legislatures will have to be the ones to do it.
The Supreme Court has not been damaged. Actually, it is returning to the role for which it was intended. To interpret The Constitution and make rulings based on the constitutional merit of the arguments before it rather than using the prevailing sentiment at the time to create new law for which there is no constitutional provision.