Comparing periods of our country’s history requires a greater in-depth knowledge than I have, but my more than a half-century involvement in the study and active participation in government causes me concern about where we are and where we are headed as a Nation. President Biden in a speech earlier this year that I have quoted in this column in the past expressed concern about the future of democracy. The threats to our democracy as I see them now are greater than at any other time in our history as I know it.
My fears have only increased as I have followed the decisions of the Supreme Court of the United States (SCOTUS) in recent years and most especially last week. Ignoring stare decisis, the following of precedent from previous decisions on the same subject, interjects an uncertainty into our legal framework and creates a fear by those most vulnerable in our society as to what SCOTUS, with a majority of very conservative justices with life terms, might do to reorder our legal system to their views on the world.
Over the centuries it has been the decisions of the United States Supreme Court that have done so much to enhance democracy in Virginia when the state legislature has refused to act. Likewise the Court has dealt with difficult issues that elected political bodies over time have not been able to resolve. Now the Court looks little different than politically motivated bodies taking huge gifts that influence their decisions while they follow a political ideology rather than the Constitution and legal precedent. Some have expressed that the Court is about remaking our society — and not in a way that is better.
With the decision to overturn Roe v. Wade, the Supreme Court whose members had generally expressed in their confirmation hearings that the issue of abortion was settled law overturned the decision, and for the first time in the history of the Court took away a right that had been in existence for more than fifty years. The Court has overturned Affirmative Action that has been such a centerpiece to the success of many citizens, including members of the Court, to be able to access education.
The Court whose responsibility it is to interpret the law found that the President had exceeded his authority to grant student loan relief and went about issuing a decision that I believe exceeds the authority of the Court. In the most incredible of the many questionable decisions of the Court, private businesses were given the authority in a hypothetical case to discriminate against those in same-sex weddings in the LGBTQ+ community and maybe more.
In the wedding website case, Justice Elena Kagan expressed the concern that many of us feel. She wrote in a dissent, “From the first page to the last, today’s opinion departs from the demands of judicial restraint … That is why the Court is supposed to stick to its business—to decide only cases and controversies, and to stay away from making this Nation’s policy … The Court exercises authority it does not have. It violates the Constitution.”