June 22, 2023

Be Critical of the Court

Russ Feingold President

As we await and react to new Supreme Court decisions, June inevitably also brings the anniversaries of past decisions, both good and bad. June 24th will mark one year since the Court issued its devastating and unprecedented decision in Dobbs v. Jackson Women’s Health. Contrast that with June 26th, marking eight years since the Court’s landmark decision in support of marriage equality in Obergefell v. Hodges.

Let’s start with the good and commemorate Obergefell. Since it was first handed down, Obergefell has been about more than marriage equality. It served as solace, hope, and validation to LGBTQ+ folks who had spent decades fighting at the state and federal level for this right and recognition. The continued importance of this decision cannot be understated as we await the Supreme Court’s decision in 303 Creative LLC v. Elenis, which could see the Court punch a hole in non-discrimination protections for LGBTQ+ folks. The plethora of anti-trans and anti-LGBTQ+ bills being taken up by several state legislatures, with many enacted, is proof of the continuing threats to LGBTQ+ rights and lived equality. We cannot take Obergefell for granted or assume that it is written in stone.

In contrast, this weekend also marks one year since the Supreme Court, for the first time in our country’s history, wiped out a federal constitutional right. The Dobbs decision has proven just as catastrophic as we feared it would be. In the past year, as a result of that decision, fourteen states have banned most abortions, and in nine more states, bans are currently blocked by courts. One of the many results from all of this is confusion and uncertainty as more bills are taken up, some are enacted, and some are blocked by courts.

In spite of these challenges and setbacks, advocates have been able to secure important wins for abortion access in several key places. In response to Dobbs, many states have enacted or strengthened their state rights to abortion care and have taken proactive steps to provide this care, serving as a safe-haven to their own residents and to out-of-state patients. Since Dobbs, Vermont and California have added the right to abortion to their state constitutions, and Kansas voters affirmed their state constitution’s protection of abortion rights. In several states, state supreme courts have ruled that their state constitutions protect abortion rights.

The overall result is the tale of two countries. One in which abortion is legal and one in which it is not. That said, even before Dobbs, abortion access too often was limited by geography and income. That is all the more true now. People in states with abortion bans can still potentially access abortion services if they are physically able to travel and have the resources to seek care out of state. On the other hand, in states where abortion is legal, an overwhelmed healthcare system is struggling to provide care to those in need, and access still depends on many factors, including proximity to the nearest abortion provider, the ability to get time off work, and the resources to pay for the service.  Our collective pursuit of reproductive justice in this country will and must continue.

We are also reflecting on the ten years that have passed since the Supreme Court’s decision in Shelby County v. Holder and the Court’s relentless assault on the Voting Rights Act (VRA). The VRA is considered by many to be the most successful civil rights legislation enacted in this country’s history. Today, it is being held together with duct tape. In the decade since handing down Shelby County, the Supreme Court went on to greenlight partisan gerrymandering in Rucho v. Common Cause (2019) and to make it more difficult to challenge voter suppression laws that disproportionately impact voters of color under the VRA in Brnovich v. DNC (2021).

The Supreme Court’s recent decision in Allen v. Milligan was a welcomed win for Black voters in Alabama, and historically marginalized communities throughout the country seeking fair representation.  But let‘s be clear about this hard-won victory, this decision merely preserved a key provision of the Voting Rights Act. The VRA remains a shadow of its former self post-Shelby County, Rucho, and Brnovich. The Court has done significant damage to the VRA in the ten years following Shelby County and remains a threat to voting rights and the project of building a true multiracial democracy.

This is all a crushing reminder why we are relentless in saying: courts matter. So often, the executive branch and Congress consume the vast majority of oxygen and ink in the news. And yet, arguably, the Supreme Court is having a more profound impact on our lives right now, certainly on our fundamental freedoms, than either of the other branches. The Court is not a majestic beacon on a hill, meant to be observed and obeyed, and not criticized. This Court has proven itself every bit as political as the other branches, running roughshod over precedent and judicial norms in pursuit of partisan wins. It is ripe for critique! And critique it we will.