A Narrowing Vision of America
The Supreme Court's recent rulings and the "Great American State Fair" reflect twin Trumpian visions of who belongs in America.
When the Supreme Court legalized gay marriage 11 years ago last month, the reaction was sheer jubilation. Couples flocked to courthouses to formalize their unions. Thousands rallied in community celebrations. The White House glowed with rainbow lights (I know, it’s unfathomable today).
The Court’s ruling in Obergefell v. Hodges extended marriage equality to a group of Americans whose rights had previously been in doubt. Writing for the majority, Justice Anthony Kennedy’s interpretation of the Fourteenth Amendment was generous and inclusive:
“The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”
Same-sex couples, the Court concluded, deserved that liberty: “They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
Last week, however, the Supreme Court offered a starkly different vision of who in America deserves freedom and the protection of law. It ruled that Title IX and the Equal Protection Clause do not shield trans athletes from transphobic discrimination. It gave the Trump administration sweeping powers to end the legal status of Haitian, Syrian and other refugees fleeing disasters and violence in their homelands. More than one million people now face the risk of mass deportation. Earlier this term, the Supreme Court gutted the Voting Rights Act, effectively empowering the disenfranchisement of Black voters in the South.
Granted, the Court also reaffirmed birthright citizenship, a win for millions of Americans born of immigrants (including me). But as Monthly Legal Affairs Editor Garrett Epps points out, the Court could hardly rule otherwise, given the weight of history, precedent, and the plain language of the Constitution. The Court’s ruling was less cause for celebration than relief—like when a Category Five hurricane swipes the coast before heading back out to sea.
Taken together, the Court’s rulings this session enable a Trumpian America that’s bigoted, mean and monochromatic (i.e., white): America not as a “melting pot” but as a cauldron of racial resentment. Especially appalling were Justice Samuel Alito’s weak protestations that Trump’s animus toward Haitians was not “overtly racial”—a characterization that Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson decisively punctured in their dissent. Trump’s remarks, they write, were “so repellent and racially inflected that the majority declines to put them in print.” The dissenters had no such reservations. Reciting a long list of Trump’s most hateful slurs, their dissent exposed the president’s racism, the majority’s hypocrisy—and just how the far the Court has fallen since the lofty days of Obergefell.
More Supreme Court coverage from the Monthly….
Justice Alito—election denier? The Supreme Court’s decision this week allowing the acceptance of absentee ballots after Election Day (provided they’re postmarked on time) was good news for voters and state election officials. But voting rights expert Josh Douglas notes a troubling concern: Justice Samuel Alito’s seeming belief in widespread voter fraud. “Justice Alito’s constant acceptance of the myth of voter fraud, without evidence… should raise citizens’ alarms,” he writes, and this belief could justify more restrictive voting rules in the future. Read here.
An imperial presidency. An imperial Court. Though overshadowed by other rulings this week, the Supreme Court’s decision allowing the firing of Federal Trade Commissioner Rebecca Slaughter might be its “biggest and most consequential” this term, writes Peter Shane. The Court not only grants the executive unprecedented power, it usurps power for itself as well. “Trump v. Slaughter arrogates to the Supreme Court power that the Constitution vests in Congress, not the judiciary,” Peter writes. For one thing, Peter argues, the end of agency independence could mean the end of administrative courts. Read his reasoning here.
Ideology over science. With its ruling in West Virginia in B.P.J., the Supreme Court threw open the doors to transphobic legislation, all the while disregardng science, evidence, and its own prior reasoning, argues University of Oregon professor Allison Gash. Among the facts that the Court ignored: neither of the plaintiffs, both trans women, experienced any advantage over cisgender female athletes. Read here.
Salon mailing list
Salon@listserve.com
https://mlm2.listserve.net/mailman/listinfo/salon