Farrah Hassen human rights Politics

There Is Only One Thing Left to Do With the Supreme Court

Unelected judges shouldn’t have the power to take away rights most Americans support.
[Victoria Pickering / CC BY-NC-ND 2.0]

By Farrah Hassen | OtherWords

Regardless of anyone’s views on abortion, the Supreme Court’s decision in Dobbs v. Jackson took away a reproductive right that a half-century of hard-fought judicial precedent had determined was constitutionally protected.

In doing so, the court set a dangerous precedent — that a person’s rights can be taken away.

Overturning Roe v. Wade was a triumph of politics and ideology over constitutional principles. It diminished the power and equality of women, along with transgender men and non-binary people, to make informed decisions about their own bodies without fear of government intrusion.

The opinion itself fails as an application of long-standing constitutional law. The justices arbitrarily discarded precedents they opposed, like Roe and Planned Parenthood v. Casey, threatening the role of precedent in ensuring legal stability.

They selectively reasoned in Dobbs that abortion law should be left to the states, but conveniently did not grant that same level of deference when they declared a New York law unconstitutional for limiting concealed weapons.

This is hardly the first time that the ideologies of Supreme Court justices have shaped their decisions.

Preeminent constitutional law scholar Erwin Chemerinsky noted in his June 24 Los Angeles Times column, “From the 1890s until 1936, the court had a very conservative majority and declared unconstitutional over 200 federal, state, and local laws protecting workers and consumers.”

By contrast, the Warren court from 1954 until 1969 had the court’s only liberal majority, and “its decisions were progressive in a way never otherwise seen in American history.”

The Warren court famously overturned Plessy v. Ferguson with its Brown v. Board of Education decision, thus ending discriminatory “separate but equal” laws. But unlike Dobbs, the court in Brown overturned precedent to expand rights, not take them away.

Millions of people across the country are already experiencing the ramifications of Dobbs as Republican-controlled states systemically outlaw reproductive rights. Around 26 states, most in the Midwest and South, are expected to ban or severely restrict access to abortion.

In this strange, post-Roe America, accessing guns and controlling women’s bodies take priority over health care, housing, paid leave, and other rights needed to truly protect a “right to life.”

Even worse, the Dobbs decision that overturned Roe could signal a rollback of the fundamental right to privacy.

This right protects the use of contraceptives under Griswold v. Connecticut and same-sex marriage under Obergefell v. Hodges, among other protections. Although the Dobbs majority opinion ostensibly applied to abortion, this would not stop the current or a future court from reconsidering these precedents as well.

A strong majority of Americans support keeping abortion legal, according to Gallup and other polls. Gallup also found in 2021 that only 25 percent of the American public have confidence in the Supreme Court — the lowest approval rating in history for the court’s nine unelected, lifetime members.

Congress also shares blame. Democrats were quick to fundraise on the abortion issue for upcoming elections but they have not prioritized reproductive rights in the past. Meanwhile, Republicans are imposing conservative religious views on a country founded on the separation of church and state.

The Supreme Court may have the power to interpret the Constitution, but it is not above it. Congress has the authority to place a much-needed check on an increasingly unbalanced court such as by imposing term limits, adopting an ethics code, and impeaching justices to ensure accountability.

The end of Roe should also foster a larger discussion on the imperfections of our political system and the dire need for greater democracy. These structural cracks transcend any individual Supreme Court decision or president.

The Constitution begins with “We the People of the United States,” because we are ultimately responsible for realizing its promise. A right that can be revoked isn’t a right. It takes the sustained action of people to attain that more perfect and just union.

Farrah Hassen

Farrah Hassen

Farrah Hassen, J.D., is a writer, policy analyst, and adjunct professor in the Department of Political Science at Cal Poly Pomona. This op-ed was distributed by OtherWords.org.

27 comments

  1. I have no respect for this court either, but the court is not waging a war (although they will support it) on Russia and China. Priorities, please. We get nowhere with any rights if this insane bipartisan quest for world domination continues.

  2. This government has always been part of the dictatorship of capital: the lie that wage labor is free to choose its fate. The whole apparatus is one big prison to keep the working class from overthrowing the class that claws profit from the labor of the working class. Without the dictatorship of profit and capital the working class would be able to construct society so that it could use its capacity to serve only itself and the rest of the life world. The real goal is “how do we discard capitalism and its state power.”

  3. Why the sudden interest in the Supreme Court in protecting constitutional rights? The Supreme Court has long been obeisant to the national security state with its bombing of pregnant Muslim women without a congressional declaration of war.

  4. Man, I can just see Farrah supporting Hillary to the hilt. Here, the Main Lining Media, propping up that war criminal for 2024. We’ll see Noam and Jeff Sachs and a slew of folk pumping their firsts for Killary. The state of America.

    Headline: “Now more than ever, Democrats need Hillary Clinton”

    https://www.msn.com/en-us/news/politics/now-more-than-ever-democrats-need-hillary-clinton/ar-AAZ9dvB?ocid=msedgntp&cvid=ad974d9512504660948e61b2d3d7479d

    Trotting this corporate whore out again proves how sick and messed (effed up) up this country and its political system has become.

    1. There’s no way in hell I’m voting for Clinton. Surely the DNC can’t be that stupid (again). Oh well…

  5. Thanks, Farrah.

    So, how do we make the SC more accountable to the people?

  6. How about if the regressive democrats actually passed a
    Federal statute regulating abortion on a national basis?
    Women have been completely betrayed by their so called
    liberal congressional representatives since Roe.
    Women must get off their knees and become full citizens
    of this benighted crapitalist imperium and realize their
    political power as peacemakers on our streets and in the
    Retraction of this funeral empire.
    The female gender must empower itself . The male gender
    Has proven itself over the entire history of America to be
    Incapable of making peace.
    So please get off the consumption and drudgery and start
    Demanding actual full citizenship.

    1. Totally agree. However, women can’t do it alone. We need to work together as human beings. Dividing by sex is what caused this problem in the first place, and is a tactic (among many others) used to keep us divided.

  7. Excellent article. Consider making your essays easy to post to other media like FB. You need to be heard by a larger audience. Thanks. -John

  8. Isn’t a major problem in dealing with the constitution whether to base law as an originalist would, as opposed to a living document, so that it is always open to interpretation?
    If so, how can this be resolved?

  9. Not a single substantive sentence countering the arguments the court made in Dobbs.

  10. has this idiot ever lived in a civilized nation—judges should never be chosen by peasants. the narrative here —mommy he won’t give me candy, can we kill him?

  11. “Legislating from the bench”
    It’s funny how the right accuses the left of what the right does – like a guilty conscious.

    There should be no problem impeaching “justices” appointed by the twice impeached president – “2 of them are liars”* after all

    *Jessie Ventura

  12. Farrah, while the protest sign reading “ABORT THE COURT” is topical, appropriate, cute, and most effectively rhymes — my demonstration sign is also brief and to the point, but also exposes the causal factor:

    GROW LOVE
    ABORT EMPIRE

    The double-sided version of which adds this:

    LOVE OVER
    MONEY, POWER
    HATE & EMPIRE

    IMHO, we need to focus, like an effin laser on the only winning “Strategic Advantage” [Michael Porter HBS] of exposing EMPIRE as the CAUSAL CANCER of this GLOBAL CAPITALIST EMPIRE — and employ LOVE as the solution to our entire “ailing social order” [Zygmunt Bauman]

    It doesn’t rhyme, but “If you build it, they will come” — to a democratic socialism “Field of dreams”

  13. You can try and blame it all on dems but you know the rules and the majority required, and while we’re at it, let’s not let the party of obstruction, the gop, off the hook since they are in complete defiance of all our rights, not just abortion.

  14. Roe v. Wade was a Supreme Court decision.

    The problem with its annulment is NOT a Supreme Court problem, but a conservative/Republican one.

    Left-ish Neo Progressive pundits, who sadly were instrumental in the current SC conservative majority (Bush and Trump were elected. partially, due to the left’s vivid hatred of the Clintons) don’t want you to acknowledge that simple fact because it doesn’t jive well with their delusional liberal-conservative similitude, but the fact remains that Trump’s and Bush’s SC picks is why we lost Roe v. Wade, not the Supreme Court as such.

    The same is true with the failure to legislate Abortion Right in Congress, where Democrats have been trying to pass Women’s Health Protection Act (or some version of similar women right’s bill) for a long time, only to be obstructed by Republican obstructions.

  15. Who and when was it decided that abortion should be a political issue when it is so obviously a private issue?….Will politicians next have the power to decide whether a person is allowed to have his/her appendix or tumor to be removed?

    1. And, will we allow government to tell us when we’re allowed to pee?

      Honestly, this is the ‘Land of the Free’??

  16. Very important points. also I thought that the Supreme Court is the ultimate decider of what’s constitutional and what is not. so if the court decides (as ultimate decider) that Abortion is a right , then how could the Court then decide that it’s NOT. In other words the ultimate decider is NOt really the ultimate decider. so Why have a SUPREME Court?

  17. Leaving abortion rights to the states is just as stupid and sadistic as leaving them to the federal govenment…..Neither should have the option to declare wht goes goes in or out of a woman’s body.

    1. This proves, Maxime, the paucity of our so-called ‘rule of law’. We pretend, and prance, and prance and pose, but in the end there’ s little of value and much to despise.

      The problem, of course, is the people that make the law. Not ordinary Americans (who have almost no voice), but the actual rulers of our condition. If we don’t get rid of them soon, it will be a new ‘Dark Age’.

      1. It’s 2022. No laws forcing people to carry fetuses. No laws forcing me to have prostate out. No laws forcing me to have a urine test for a job I do not even have. No laws to forced people on or off life support.

        We are a childish society, and the elites from Harvard, et al, are laughing all the way to their Star Chambers. Out medical community is sagging, no ambulances in many jurisdictions, lead in water, PFAS’s, and on and on, but the LAW, the Robed Freaks, determine what in 2022. So, any deaths for those who are forced to carry a fetus? Time to lay this on the entire system. I hate lawyers, and few are warriors, but time to lawyer up and sue the Robed Freaks for manslaughter and direct proportional damages for the death of the woman and the trauma of the family of that DEAD woman.

        Bastard and Bitches, that’s what they are, but we play this game and play nice. They are criminals. Rule of Law my ass. How many treaties have been broken for Native Tribes? 100 percent of them. May those robed ones die slow, painful deaths is what I say.

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