The “originalist” or “strict constructionist” view of jurisprudence made considerable gains on the U.S. Supreme Court during the Trump years, when Justice Brett Kavanaugh replaced Justice Anthony Kennedy — a right-wing Ronald Reagan appointee with libertarian views on abortion and gay rights — and Justice Amy Coney Barrett replaced the late liberal Justice Ruth Bader Ginsburg. The High Court, now dominated by social conservatives, appears to be on the verge of striking down Roe v. Wade. And liberal New York Times opinion writer Charles Blow, in his May 8 column, warns that the Court may be helping to bring about a “new age of oppression.”
Blow discusses Roe v. Wade in his column, noting a leaked majority draft opinion in which Justice Samuel Alito lays out an argument for striking down that landmark 1973 ruling. But Blow’s May 8 column is about much more than Roe. Blow stresses that the High Court often promoted “oppression” in the past and may be moving in that direction again now that it is dominated by “originalist” doctrine.
“There are no inviolable rules for those bent on oppression,” Blow warns. “There is only winning, at all costs, no matter the casualties. Conservatives would abide a boor like Donald Trump because he could give them the judges they wanted, the judges who are now poised to reverse federal abortion protections.”
Blow continues, “The Court is a product of the Framers of the Constitution, and for all their flashes of brilliance, they made some terribly flawed decisions about our government. That’s why originalists, those who believe that judgments by the Court must conform to how the Founders understood the Constitution when it was written, are so dangerous.”
The Times columnist argues that “originalist” thought was at the heart of many “oppressive” rulings that the Supreme Court made in the past.
“The originalists…. know the horrendous history of the Court, and they want it to rise again,” Blow writes. “It was the Court in 1857, in the Dred Scott case, that ruled that the Framers believed Black people were ‘beings of an inferior order’ and ‘so far inferior that they had no rights which the White man was bound to respect and that the Negro might justly and lawfully be reduced to slavery for his benefit.’”
Blow continues, “As Douglas A. Blackmon laid out in his brilliant book, ‘Slavery by Another Name,’ it was the Court that, in 1883, ‘ruled that the Civil Rights Act of 1875, the one federal law forcing Whites to comply with the provisions of the 14th and 15th Amendments — awarding voting and legal rights to Blacks — could be enforced only under the most rare circumstances.’ He wrote, ‘Civil rights was a local, not federal issue, the Court found.’ Alito used similar logic in the leaked draft of his decision that would overturn Roe.”
The columnist also notes that the High Court “sanctioned the architecture of Jim Crow” with its 1896 ruling in Plessy v. Ferguson.
“In 1927,” Blow recalls, “the Court upheld the forced sterilization of the disabled. In 1944, it upheld the internment of Japanese-Americans. In 1986, it upheld sodomy laws in Georgia. And now, the Court has signaled a willingness to revisit some of its previous rulings that increased equality and curbed oppression.”
Blow adds, “In 2013, the Court gutted the Voting Rights Act, and now, we are entering a new Jim Crow era, as conservative state legislatures adopt waves of voter restrictions. In just a few short weeks, the fundamental right enshrined in Roe nearly 50 years ago could disappear overnight for millions of American women. What’s next? Is anything truly safe? The answer is ‘no.’”
The High Court, Blow laments, “is not bound by public opinion, the will of the voters or changing mores.”
“The Court is a permanent council that answers to no one,” Blow writes. “It can behave as it chooses. The robes can go rogue. This is the power Republicans want — the power to overrule the will of the majority…. Republicans and their judges may well have just ushered in a new age of oppression.”