Political Matters – July 2022


By Mordecai Specktor

SCOTUS out of control
It’s becoming clear that the Republican partisans are trying to kill us.

A radical, right-wing faction in thrall to Trump has taken control of the GOP. By supporting Trump, the amoral, sexual predator, they got three appointments to the Supreme Court (SCOTUS); and it has become clear that the new supermajority is taking a wrecking ball to what’s left of democracy in the United States. Several recent decisions combine to paint a troubling picture of a high court out of control.

On June 24, the Supremes, in a 6-3 decision in Dobbs v. Jackson, overturned Roe v. Wade, the 1973 decision that affirmed the right to abortion across the U.S. The precedent stood for nearly 50 years, and now the nation has been plunged into uncertainty about the legality of abortion, especially as several states passed “trigger laws” that immediately (or within 30 days) ban abortion procedures when the Supreme Court overturns Roe.

The U.S., or parts thereof, will soon resemble the Republic of Gilead, the military dictatorship in Margaret Atwood’s novel The Handmaid’s Tale, where women are subjugated and assigned to produce children for ruling class men. Fortunately, Minnesota is the lone state in the Upper Midwest where abortion will remain legal – unless the Republicans can take over the Legislature and the governor’s office.

(An excellent documentary, “The Janes,” streaming on HBO Max, tells the story of a feminist collective in Chicago that provided illegal abortions to girls and women from 1968 to 1973. The film couldn’t be more topical, as it provides a look at the bad old days, pre-Roe, when desperate women took their lives in their hands to get abortions.)

The right-wing justices were just getting warmed up with Dobbs. On June 29, in a 5-4 vote, the high court justices took a whack at tribal sovereignty in Oklahoma v. Castro-Huerta. The Washington Post reported that the decision “blunts the effects of the court’s 2020 ruling in McGirt v. Oklahoma, which reinforced that much of Oklahoma was, legally, Indian country, where many crimes were beyond the reach of the state and its laws. With its new, sweeping ruling, the court reinstates a piece of Oklahoma’s pre-McGirt power over this territory by upending the law on reservations throughout the country.”

The court decision, according to the newspaper, “held … that all states have, as a matter of state sovereignty, the power to prosecute non-Indian crimes within Native lands. And in a bold claim that departs from centuries of federal Indian law precedent, Justice Brett M. Kavanaugh wrote for the majority, ‘Indian country is part of the State, not separate from the State.’” Apparently, Kavanaugh went to a kegger and missed a crucial federal Indian law class explaining how treaties work.

“The Supreme Court’s decision to rule in favor of an anti-Native administration [in Oklahoma] is infuriating, but not at all shocking,” wrote Crystal Echo Hawk (Pawnee Nation), founder and executive director of IllumiNative. “There has never been a Native justice on the bench of the highest court in the land, and their lack of understanding of tribal sovereignty is clear. Nothing has changed in 244 years – white supremacy continues to be a cornerstone of the United States government.”

Finally, on June 30, the court’s super majority ruled in West Virginia v. EPA that the Environmental Protection Agency does not have the power to regulate greenhouse gases. This is a bad decision for anyone who breathes. Of course, the decision provided Republicans and coal company owners with a moment to celebrate.

According to SCOTUS Blog (scotusblog.com), the justices decided that the U.S. Court of Appeals for the District of Columbia Circuit “was wrong when it interpreted the Clean Air Act to give the EPA expansive power over carbon emissions. The decision, written by Chief Justice John Roberts, was handed down on the final opinion day of the 2021-22 term.”

SCOTUS Blog added that “Roberts wrote that the EPA’s effort to regulate greenhouse gases by making industry-wide changes violated the ‘major-questions’ doctrine – the idea that if Congress wants to give an administrative agency the power to make ‘decisions of vast economic and political significance,’ it must say so clearly.”

Some observers see this decision as extending to other actions by federal agencies and potentially crippling government efforts to remediate environmental harms.
Justice Elena Kagan dissented in the EPA decision, “in an opinion joined by Justices Stephen Breyer and Sonia Sotomayor,” as per SCOTUS Blog.

Kagan wrote that [the June 30] ruling “prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions. The Court appoints itself – instead of Congress or the expert agency – the decision-maker on climate policy. I cannot think of many things more frightening.”