How the Supreme Court failed

In the 1850s, the United States was roiled over the issue of slavery.  Many looked to the courts for resolution of the issue.  The Supreme Court's Dred Scott decision "settled" the issue by stating that, since slavery was permitted under the U.S. Constitution, slaves had no inherent civil rights that anyone was bound to respect.  The plaintiff in the case, the slave Dred Scott, could therefore not obtain his freedom.  Was the slavery issue settled?  Of course not, as the Civil War, four years into the future, so amply proved.

Going forward to 1973, the Supreme Court, by a 7-2 margin, issued the momentous Roe v. Wade decision.  Abortion is now deemed legal throughout the nation, restrictions already placed upon the procedure by various states notwithstanding.  Any turmoil that surrounded this issue prior to 1973 was dwarfed by the political and social contentions that ensued.  The issue divided the country, to say the least.  So what could have provided legal clarity to the issue in 1973 instead catapulted the nation into political and social upheaval that has not diminished up until the present day. 

I would suggest that the court adjudicated a case it never should have heard in the first place.  Abortion, a matter of conscience on both sides of the issue, should best be a matter for state legislatures, where people's consciences will be reflected through legislation and where legislators are more directly accountable to their constituents.  But instead, the court inserted itself in a matter that violated the consciences of those who now could never have recourse through their elected legislatures.  It arrogantly usurped the role of the legislative branch by, in effect, passing its own legislation.  As Justice Byron White stated in his dissent at the time: what the court did was nothing more than "an exercise of raw judicial power."

Last week, the Supreme Court issued a decision, Bostock vs. Clayton County, making it illegal to fire people based on their gender identity.  The decision was based on the 1964 Civil Rights law that prohibited discrimination based on sex, but "sex" in 1964 was not meant by legislators to mean the sex one chose to identify with — be it lesbian, gay, bisexual, or transgender.  The Supreme Court merely chose to go back in time and insert gender identity as part of the original statute, which forbade discrimination on the basis of sex, the meaning at the time being one's biological makeup.  Legislators at the time had no intention of expanding this definition of sex.  In his dissent, Justice Samuel Alito labeled what the court had done as nothing more than legislation.  It had substituted its meaning, "gender identity," for that of the "sex" of the original legislators.  It was an act of judicial arrogance, pure and simple, as it usurped the right of the people to express their consciences via their elected representatives.

It matters not if the decision had gone 6-3 in the other direction.  Just like what happened in 1857 and 1973, the Supreme Court, in its attempt to shape politics will ultimately be unable to resist cultural trends in the United States.  (If anything, anti-abortion sentiment has grown since 1973.)  The Supreme Court may indeed continue to arrogantly legislate, but ultimately, it will face a losing battle: American cultural norms will prevail.