As the shock wears off from the U.S. Supreme Court’s overruling of Roe v. Wade, many are rationally asking whether the five conservative judges warped the rule of law into the rule of the religious right.
Why? Because Justices Samuel Alito, Neil Gorsuch, Thomas Kavanaugh, Clarence Thomas and Amy Coney Barrett simply don’t have that much power. The Supreme Court cannot wreck our lives in a single ruling, let alone single-handedly replace the rule of law with brutalist right wing politics.
Law changes as much as a perennial garden. You plant something, and it takes off or withers. Seeds blow in from your neighbor’s yard, and weeds always pop up. Only a novice or megalomaniac thinks that the garden is going to look just the same in June as it did the previous October, let alone the prior June. Each plant seeks its place in the sun or shade, its share of soil’s nutrients and water. We gardeners support the plants we want and weed out the destructive ones that try to take over.
No wonder Kate Schmidt, a 41-year-old South Dakota social studies teacher expressed her fury at the U.S. Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization with “rage weeding,” according to an article in the New York Times. Many, if not most, Americans are furious and fearful at the idea of losing even more fundamental rights to make life-defining decisions. Like a bindweed, the Gang of Five has invaded part — but not all — of the garden.
SCOTUS merely makes sure that federal constitution law works as a floor that states cannot go below. States can provide more protection for all kinds of rights — including reproductive freedom — than the Supreme Court interprets the federal Constitution to require.
The term “jurisdiction” is legalese for a particular court’s power to decide a particular issue. SCOTUS only has jurisdiction over questions involving the federal constitution and federal statutes and regulations. That power allows SCOTUS to review challenges to state laws — such as Mississippi’s abortion ban in Dobbs — to ensure that each state’s laws comply with the federal constitutional minimum. Just as you may plant more trees than your neighbor, states routinely provide more generous rights than the feds via state constitutions, state statues and state regulations. Fortunately, most of the law governing families, crime, contracts, injuries, work and business, is state law.
Another limit on SCOTUS’s reign of error is that the judiciary is just one branch of government. Legislatures, the president, agencies and governors all enact and shape law. So when the Court said on June 30 that the Clean Air Act does not authorize the EPA’s regulation of power plants’ carbon emissions, Congress can overrule the court by amending that statute to explicitly give the EPA that power and thus protect people and the planet.
In short, most of our lives are free from the Supreme Court’s meddling. We just talk about a Supreme Court’s opinion as if it’s “the” law because it sets a baseline for the whole country.
Yale Historian Timothy Snyder — a scholar of 20th century tragedies such as Nazism — provides a pithy list of ways ordinary people can counter the slide into despotism. Atop that list is “do not obey in advance,” and No. 2 is “defend an institution.” Recognizing the federal Supreme Court’s limited power and holding the Gang of Five within those limits does both.
Law is a conversation that includes all of us: individuals, companies, branches of government, states and the federal government. It’s a long back and forth, without definitive answers for all time. Conservatives are trying to return us to the white, Christian and male supremacist regimes of centuries past, but the law has built-in protections against that kind of malicious mischief.
Two core legal principles shape that conversation: voice and exit. Citizens can speak up to change the law, and vote with their feet by moving to a more friendly state if their voice is not heard. However, super PACs and lobbyists are especially loud, and exiting is not an option for those without resources to relocate.
Smart lawyers are already building fences to contain the court’s overreach by cultivating good law in the states, Congress and the executive branch. Everyone else who can should help elect legislators who protect our freedoms, and by funding travel and other expenses for millions of women who must now travel to exercise their fundamental rights.
Martha M. Ertman (firstname.lastname@example.org) is the Carole and Hanan Sibel Research Professor at the University of Maryland Carey Law School.