When retiring Justice Stephen Breyer invoked Abraham Lincoln’s observation that the nation’s “popular government has often been called an experiment,” it could hardly have been lost on him that the nation was recently, and for the first time since the Civil War, subject to an attempt to void a democratically elected government by force.
Nor could it have been lost on him that the Supreme Court—now under the firm control of an extreme right-wing super-majority—is embarked on an increasingly brazen reactionary project.
At moments of national division and conflict, the power of the Supreme Court is often amplified, leaving its members with a choice to make. They can serve as a bulwark against extremism, as the Court did during the post-World War II era when it slapped back efforts by whites in the former Confederacy to preserve Jim Crow. Or they can promote division and conflict, as the Court did by issuing the Dred Scott decision in 1857, which incorporated the most radical of Southern slaveholders’ positions into the Constitution, including by denying Black Americans U.S. citizenship.
ADVERTISEMENT
The current Court majority is plainly taking the latter course—one that can, and has, led America to civil war and other divisions in the past.
Republican-controlled states are rushing to pass restrictive abortion laws in anticipation of the Court’s likely gutting of Roe v. Wade—which would be the first time it has terminated recognition of a fundamental constitutional right.
But, in a very real sense, the right to choose is already gone, since the Supreme Court’s right-wing majority has allowed the Texas abortion law—which brought legal abortions to a halt in that state—to remain in place, despite its patent unconstitutionality under the still purportedly valid Roe precedent.
That action reflects the utter lawlessness of a Court majority so eager to effectuate an extreme public policy agenda that it is willing to discard any pretense of judicial neutrality—and thus to risk compromising the Court's legitimacy to achieve its ideological and political ends.
This term alone, beyond likely gutting Roe, the Court is poised to issue rulings likely to, radically restrict the ability of states to regulate guns at a time of increasing gun violence, gut the Clean Air Act, and limit the ability of colleges to consider race at all when making admission decisions, undermining decades of progress in achieving diversity in higher education.
Few of these decisions are likely to be favored by the majority of Americans. By way of example, nearly 70 percent of the nation opposes the voiding of Roe. But the paralysis of Congress—worsened by gerrymandered House districts and the perpetuation of the filibuster in a Senate that already amplifies the power of right-of-center voters in small states—inevitably increases the power of the Court’s packed majority to impose its preferred policies on the nation, whether most of its citizens like it or not.
Most recently, the Court’s majority attacked what Justice Samuel Alito—in a speech before the Federalist Society address—decried as the dangerous growth of “more scientific” influence over public health during the pandemic.
During arguments on federal vaccine and testing mandates, Breyer repeatedly made a stark point: Thousands of people are dying avoidable deaths from COVID every single day and increased vaccination rates will limit the toll, including in workplaces. Accordingly, by stepping in to tie the government's hands during a national emergency, the Court would be, literally, consigning thousands of Americans to death.
Yet the Court's majority went ahead and did just that, voiding the workplace vaccination or testing rule imposed by the Occupational Safety and Health Administration with the majority grounding its ruling on the ridiculous proposition that, because COVID-19 is transmitted outside of workplaces as well as in them, requiring employees be vaccinated or tested is not a workplace regulation. If this reasoning is generalized, it would void OSHA’s ability to regulate a wide range of risks and dangers that exist both inside and outside of workplaces.
During his resignation appearance, Breyer quoted the Gettysburg address, which Lincoln delivered in 1863, as the Civil War was at the beginning of its end. But Lincoln did not call the United States an “experiment” at Gettysburg.. He did, however, do so in remarks he gave before Congress on July 4, 1861, during his first year in office, as well as the first year of the war.
After describing the nation’s “popular government” as an initially successful “experiment,” Lincoln stated that a new challenge loomed for America: The “successful maintenance [of democracy] against a formidable internal attempt to overthrow it.”
During his First Inaugural months earlier, Lincoln clearly held the Supreme Court responsible for the threat to democracy, through its Dred Scott decision.
When the Court takes such a profoundly wrong turn, Lincoln cautioned, as he entered office, citizens cannot “practically resign their Government into the hands of that eminent tribunal.” Indeed, his pursuit of the war effectively amounted to a rebuke of the Supreme Court’s attempt to use its position to institute slavery everywhere in the nation, one that would find fruition in the Emancipation Proclamation and the eventual enactment of the Thirteenth Amendment.
Breyer did not join in Lincoln’s open rebuke of the Supreme Court; and as a member of the Court, he might recoil upon hearing such an argument today. Yet, as Lincoln observed, when the Supreme Court becomes a partisan ally of forces of reaction, as it did in the 19th century—and again during the 1930s, when a majority of the Court attempted to nullify the New Deal—it falls upon leaders of the elected branches to push back against its overreaching.
We are in another such moment today, as an extremist super majority of the Court’s justices is determined to use its claimed authority as the arbiter of the Constitution to force an ideologically driven, and gravely reactionary, remaking of the nation. The responsibility we all bear, in Lincoln’s words, to maintain the “experiment” of “our popular government” against efforts to “overthrow it” requires pushing back against the Court’s GOP-installed majority.
