THE US SUPREME COURT IN A FOUR LETTER WORD - BORK
©Wendell Griffen, 2022
In
recent days, the Supreme Court of the United States (SCOTUS) has issued several
landmark decisions.
· In Dobbs v. Jackson
Women’s Health Organization, six of the nine justices decided to overrule
the Court’s 1973 landmark decision in Roe v. Wade which held that a
woman has a fundamental right under the US Constitution to terminate her pregnancy,
and its 1992 decision in Planned Parenthood v. Casey which upheld the Roe
ruling. Justice Samuel Alito, author of the majority opinion, wrote,
“We hold that Roe and Casey must be overruled.
The Constitution makes no reference to abortion, and no such right is
implicitly protected by any constitutional provision, including the one on
which the defenders of Roe and Casey now chiefly rely — the Due Process Clause
of the Fourteenth Amendment.”
· In New York State Rifle & Pistol
Association v. Bruen, the same six-justice majority struck down a New York law that required anyone wanting to carry a
handgun in public to prove that they had a “proper cause” to do so, holding
that the law violated the right to bear arms guaranteed by the Second Amendment
and the Fourteenth Amendment, which made the Second Amendment applicable to the
States. In the majority opinion, Justice Clarence Thomas wrote: “Apart from a few late-19th-century outlier
jurisdictions, American governments simply have not broadly prohibited the
public carry of commonly used firearms for personal defense. Nor have they
generally required law-abiding, responsible citizens to ‘demonstrate a special
need for self-protection distinguishable from that of the general community’ to
carry arms in public.” Justice Thomas made that assertion in the face of more than a century
of state regulation – in New York and elsewhere throughout the United States – concerning
who can carry firearms in public and for what purposes.
· In West
Virginia v. Environmental Protection Agency, the six-justice majority declared
that the Environmental Protection Agency does not have authority to promulgate a
rule to regulate carbon dioxide emission standards under Section 111 of the federal
Clean Air Act. The EPA issued a Clean Power Plan regulation in 2015 during the
Obama Administration. Its implementation was stayed (meaning prevented from taking
effect) by SCOTUS in 2016. During the Trump administration, the EPA repealed the
Clean Power Plan in 2019 and promulgated a different regulation called the
Affordable Clean Energy (ACE) rule. When the Trump-era repeal and ACE rule was
challenged in federal court by several states and private parties, the U.S.
Court of Appeals for the DC Circuit vacated the Trump-administration repeal of
the Clean Power Plan and the ACE rule and remanded the case to the EPA for
further consideration. After the Biden administration entered office, the EPA
asked – and no other party objected – that the court mandate regarding the
Clean Power Plan be stayed while the EPA considered whether to issue a new rule
regulating carbon dioxide emission limits. Despite the fact that the Court of
Appeals granted the motion to stay its ruling vacating the Clean Power Plan and
despite the EPA’s explicit declaration that it would not enforce the Clean
Power Plan but would craft a different regulation, Chief Justice John Roberts
and five other Justices (Thomas, Alito, Gorsuch, Kavanaugh, and Barrett) held
that Congress did not authorize the EPA in the Clean Air Act to determine “the
best system of emission reduction” identified in the Clean Power Plan. In doing
so, the justices decided the EPA lacked authority to regulate carbon dioxide
emission reduction even though there was no existing controversy.
· And as the Guardian
newspaper correctly reported, on June 27, the same six-justice majority overturned
decades of constitutional law concerning the separation of church and state and achieved one of the most long-standing goals of the Christian
right: the return of official Christian prayer to public schools by its
decision in Kennedy v Bremerton School District. As with
the West Virginia v. EPA decision, this case had a strange path to the
supreme court. It was filed in 2015 by Joseph Kennedy who formerly worked as a
public high school football coach from a Seattle suburb. Kennedy sued the school
district that once employed him and alleged that he was subjected to religious
discrimination after the school objected to his habit of making public, ostentatious
Christian prayers on the 50-yard line at football games, surrounded by young
athletes. Kennedy lost at the district and circuit levels. He moved to Florida
in 2019. That would ordinarily have rendered his case moot. However, SCOTUS agreed
to hear his case anyway. Then six of the nine justices ruled in his favor.
One
word sums up these rulings, and the ominous mindset of the six conservative
justices whose thinking produced them: Bork, as in Robert Bork.
Robert Bork was a prominent Yale law professor who became Solicitor General of the United States in the Justice Department and was Solicitor General when the Watergate scandal was exposed. After Special Prosecutor Archibald Cox requested that President Richard Nixon produce the audio tapes of his Oval Office conversations, Nixon ordered U.S. Attorney General Elliot Richardson to fire Cox. Richardson refused to do so and resigned. His chief deputy, Deputy Attorney General William Ruckelshaus, also resigned because he considered Nixon’s order to fire Cox “fundamentally wrong.” Then Nixon ordered Bork, as Acting Attorney General, to fire Cox. Bork fired him, said he intended to resign after doing so, but that Nixon talked him out of resigning.
Bork later was nominated and confirmed as a federal judge on the U.S. Court of Appeals for the District of Columbia Circuit (the DC Circuit), where he served from 1982 to 1988. In 1987, President Ronald Reagan nominated Bork to the Supreme Court.
Bork’s nomination was opposed by civil rights groups based on his views on civil rights. As a law professor and as a federal appellate judge, Bork was a fierce critic of Supreme Court’s rulings on the First Amendment, the Fourteenth Amendment, and federal power. Bork opposed the right to privacy. He opposed the Roe v. Wade decision. During his nomination to become Solicitor General, Bork supported the rights of Southern states to impose a poll tax. He opposed passage of the Civil Rights Act of 1964 and criticized the 1965 Supreme Court decision in Griswold v. Connecticut, which struck down an 1873 Connecticut law that prohibited the use of contraceptives for married couples. Bork’s nomination was defeated in the US Senate by a vote of 42 to 58. He later resigned from the judiciary and spent the rest of his life as a law professor and leading conservative thinker.
Opponents to racial justice, women’s rights, First Amendment guarantees of separation of church and state and protection of the media and individuals from governmental censorship, right-wing Christian nationalists, and free market fundamentalists have been working since the Supreme Court’s 1954 landmark decision in Brown v. Board of Education for this moment. Robert Bork was nominated to begin to reverse the progress in civil rights that occurred during the era when Earl Warren was Chief Justice of SCOTUS. The defeat of his nomination led to what became the Federalist Society, and the current conservative majority on the SCOTUS reflects the legal and social philosophy of Bork. Since the time that Bork’s nomination was defeated, conservatives have worked to advance his thinking about the meaning of justice and the role of courts and judges. They were disappointed when Justice Anthony Kennedy voted to retain the Roe v. Wade decision and later when he upheld that ruling in Planned Parenthood c. Casey.
However, recent SCOTUS decisions show that Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barratt are cut from Bork’s mindset. They and other federal judges nominated by Presidents Reagan, George H. Bush, George W. Bush, and Donald Trump are Bork’s right-wing disciples in the Federalist Society.
Bork explains why Mitch McConnell blocked President Barack Obama's nomination of Merrick Garland to the SCOTUS following the death of Justice Antonin Scalia from being considered by the US Senate. They hoped the next president would be a Republican who would nominate someone like Bork.
Bork explains why so-called evangelical Christian conservatives supported a sociopath and idiot named Donald Trump with such enthusiasm in 2016.
Bork explains why McConnell rushed to get Amy Coney Barratt confirmed in the weeks leading up to the November 2020 presidential election.
These jurists have waited their entire careers to make court rulings that Bork would have made. Unless the present make-up of the Supreme Court undergoes a drastic change, they will use the coming years to continue doing so, much to the chagrin and misery of people who suffer from injustice.
Welcome to the Bork era.
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