The current US Supreme Court is not constitutionally legitimate

Dobbs is a watershed attack that will come to be known as an infamous consolidation of an unrelenting extremist assault on this country's gains for equality and justice.

SOURCECommon Dreams

By Rev. Dr. William J. Barber II, Rev. Dr. Liz Theoharis, and Shailly Gupta Barnes

On Friday, June 24, an extremist majority of the U.S. Supreme Court overruled more than 50 years of legal precedent, taking away a previously recognized fundamental right for the first time in the court’s history. In doing so, it unleashed the full force of a regressive, coordinated state-by-state attack on the already perilously eroded right to access an abortion, on women’s rights, the human right to bodily autonomy, privacy, and control over our own lives and dignity, and to life-saving healthcare and freedoms.

Dobbs puts at risk any rights that were not already in place more than 150 years ago when the 14th Amendment was ratified.

We are not sounding a new alarm. The nation’s 140 million poor and low-income people, including 74 million women and girls, have been declaring this emergency in the face of an all-out-attack in courts and extremist legislatures across this country, particularly in the South. 

The immediate and long-term impact of this decision in Dobbs v. Jackson will be disproportionately felt by poor women, women of color, transgender, and gender non-confirming people, all of whom already face increased healthcare disparities and economic insecurity. In over 20 states today, women have lost or are likely to lose the right to control their bodies and reproductive health. In 13 states, abortion will be banned within 30 days, as “trigger bans” designed to take effect as soon as Roe was overturned are already in place [1]. In five states, courts have recently struck down legislation banning abortion; the Dobbs‘ decision means that legislation will likely take effect in mere weeks or months [2]. In another 10 states, the Washington Post has declared that “the fate of abortion rights remains uncertain” [3]. 

Even before this decision, states with more restrictive abortion laws had higher maternal mortality and infant mortality rates. Without adequate and universal healthcare available to all women, we can expect these disparities to climb even higher: experts are predicting at least a 21% increase in pregnancy-related deaths.

Once again, poor and low-income women, especially in the South and in states that did not expand Medicaid, raise the minimum wage, or otherwise enact laws and policies that ensure we can thrive outside the womb, will be hit first and worst by this decision. 

We understand Dobbs to be a watershed attack. It will come to be known as an infamous consolidation of an unrelenting extremist assault on this country’s gains for equality and justice. Indeed, Justice Alito’s comparison between Plessy v. Ferguson and Roe v. Wade is an audacious abomination of this country’s legal history. While Plessy was a racist restriction of the rights we are entitled to, Roe was an historic expansion of those rights. The parallel historical legal precedent to Dobbs is Dred Scott v. Sanford, which asserted that slaves born in this country had no rights that white men—and white supremacist systems of power—were bound to respect. This is the situation facing poor and low-income women, who account for most of the people who will be impacted by restrictions on abortion access, and will thereby suffer its most grievous consequences. 

Let us be clear, however, that the impact of Dobbs is not limited to these women or anyone whose health, security, and privacy are at greater risk because of this decision. They are just the frontlines of a broad-based assault on privacy that will impact how and when we decide to have children, who we can be in a relationship with and marry, how we raise our children, and how we die. Until this is rectified, the legal justification for our ability to have a stake in these life and death decisions no longer exists. It also means that the legal basis for protections from government or corporate intrusions on our privacy through surveillance, data mining, and making our private information public is also gone. 

In fact, Dobbs puts at risk any rights that were not already in place more than 150 years ago when the 14th Amendment was ratified. The ultimate consequences of the court’s decision to break from settled jurisprudence, the commands of the U.S. Constitution, and all legal norms reveal again an emergency in the highest court and federal recognition of equal protection under the law. When the Supreme Court directs people to elected officials to protect constitutional rights, while gutting and spitting on the right to vote through an unrelenting attack on the Voting Rights Act, our democracy is in acute crisis.  

The majority of this court is wielding authority stolen from the American people to implement an extremist political agenda that lies outside the Constitution.

This decision—in concert with a host of inconsistent, constitutionally indefensible, and regressive jurisprudence from the Court targeting voting rights protections, our safety from gun violence, the rights of immigrants, housing, public health, and protections from police violence and the coercive power of the criminal legal system—further confirms what the Poor People’s Campaign has already declared: the current U.S. Supreme Court is not a constitutionally legitimate body. 

Instead, the majority of this court is wielding authority stolen from the American people to implement an extremist political agenda that lies outside the Constitution. If the Supreme Court were truly concerned about the rights of people, it would use the full power of its position to make determinations required by our Constitution to protect against the rolling coup against democracy that has been gaining momentum across the country—unchecked by the courts or significant congressional action to guard against electoral subversion, voter suppression, and insurrection. The evidence before the American people today demonstrates that this Supreme Court, as it stands, appears to be in the opposite posture: captured by the same forces seeking to maneuver and erode the institutions of democracy. 

We also know that while the Supreme Court has great power, it is not the only power. We, too, have a power that can and will rise to this moment. Ours is the power of unity, forged across these attacks and lines of divisions, against the power structures, systems, laws, and policies that make life unlivable for 140 million people.

Just days ago, thousands upon thousands of people converged in our nation’s capital for the Mass Poor People’s and Low-Wage Workers’ Assembly and Moral March on Washington and to the Polls. Hundreds of national organizations, labor unions, and faith denominations joined thousands of poor and low-income people, together under the broad banner of the Poor People’s Campaign. Our response to this moment is to organize ourselves into a compelling force that will build the power to realize the rights and dignity of absolutely everybody. We will mobilize the most massive voter turnout among poor and low-income people in the history of the nation. We must vote in historic numbers for our ancestors, for our children, and for the generations to come. We must ensure that extremist members of Congress, in both houses, remain in the voting minority. 

Alongside this historic effort, we call on Congress to expeditiously and absolutely end the filibuster and take legislative action immediately to codify Roe v. Wade, ensure universal, single-payer healthcare, including the expansion of Medicaid in every state, and ensure the full protections of the Voting Rights Act in every election. We call on President Biden to take immediate action to guarantee reproductive freedoms and use the power of his executive authorities to unabashedly fight for the heart and soul of this country, especially the 140 million poor and low-income people. 

As Frederick Douglass said on the passage of the Dred Scott decision in 1857: “In one point of view, we, the abolitionists and colored people, should meet this decision, unlooked for and monstrous as it appears, in a cheerful spirit. This very attempt to blot out forever the hopes of an enslaved people may be one necessary link in the chain of events preparatory to the downfall and complete overthrow of the whole slave system. The whole history of the anti-slavery movement is studded with proof that all measures devised and executed with a view to ally and diminish the anti-slavery agitation, have only served to increase, intensify, and embolden that agitation.”

This is not the time to step back; it’s time to step up! Forward together, not one step back! 

1. The 13 states are Idaho, Utah, Wyoming, South Dakota, North Dakota, Missouri, Texas, Oklahoma, Louisiana, Mississippi, Arkansas, Tennessee, and Kentucky.

2. The five states are Alabama, Georgia, Iowa, Ohio, and South Carolina.

3. Those 10 states are Montana, Arizona, Nebraska, Kansas, Wisconsin, Michigan, Pennsylvania, Virginia, North Carolina, and Florida.


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