Lambda Legal: The Supreme Court’s Erasure of Essential Rights Demands Urgent Corrective Action

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July 1, 2022

Lambda Legal today underscored its joint demand with GLBTQ Legal Advocates & Defenders, the National Center for Lesbian Rights, and the Transgender Law Center for expanding the U.S. Supreme Court and requiring Supreme Court justices to abide by a code of ethics, along with lifting the filibuster and passing voting rights legislation, by citing numerous specific examples of the Court’s legally unsound and devastating upending of long-settled precedents, heedless of the harmful impacts on the American people, all issued in recent weeks.

From Lambda Legal:

“Building upon prior decisions gutting voting rights protections and other democracy safeguards, the Court’s current majority, deliberately constituted to accomplish radical doctrinal and government-systems change, has eliminated and threatened fundamental personal rights that are at the core of the liberty and equality promised to all by our Constitution. Generations of Americans have relied on these bedrock constitutional protections in ordering their lives.

“To justify its elimination of some protections and substantial constriction of others, this Court has employed ahistorical readings of American history, and a bizarre mode of analysis that limits essential rights exclusively to those that ostensibly were recognized and enjoyed by the people who had full legal status a century or two ago, thus excluding any specific legal needs of women, people of color, and LGBTQ+ people, among others.

“Past Courts have rejected this error repeatedly because it ignores the core understanding that we have a constitution, not a code or catalog. It was and is intended to remain relevant for future generations. The original Founders and those who adopted the post-Civil War amendments shared this understanding, and thus wrote broad protective principles into the Constitution to safeguard the rights and freedoms of all over time, not just the original, powerful few.

“Now, a jurisprudentially extreme Supreme Court majority rejects this understanding. In its current form, the Court presents a clear and present danger to our democratic system of government, the rule of law, and the welfare of the American public. 

“As just a few examples, in this term alone, the new, radically activist Supreme Court majority has:

  • Eliminated the freedom to decide to end a pregnancy, even in its earliest days and even in cases of personal violations and health emergencies, disdaining the liberty and equality rights of all persons who can become pregnant and using reasoning that could similarly eliminate many other fundamental personal and family rights;
  • Required taxpayer funding of religious education and approved religious worship activity by public school employees while in their official roles, disregarding the Establishment Clause’s requirement of separation of church and state;
  • Undermined the Miranda rules that have offered basic protections against coercive police interrogations, limited death row prisoners’ ability to challenge unconstitutional state court convictions, and restricted prisoners’ ability to present ineffective assistance of counsel claims;
  • Constricted the doctrine which has allowed those injured during violation of their constitutional rights by government agents to recover compensation, stating that Congress instead should provide any compensation rights and deeming Court recognition of such rights “a disfavored judicial activity”;
  • Struck down a provision of the Bipartisan Campaign Reform Act of 2002, holding that the rule governing how candidates may reimburse themselves for funds they loaned to their own campaigns violated Senator Ted Cruz’s First Amendment rights of free speech;
  • Blocked lower federal court orders that had directed the Louisiana legislature to revise its new congressional maps due to probable violation of the Voting Rights Act, meaning that the evidently discriminatory maps very likely will remain in place until 2023;
  • Erased the authority of the Environmental Protection Agency under the Clean Air Act to balance competing economic and other factors, and develop limits on power plants’ carbon dioxide emissions designed to incentivize cleaner energy production, ruling that Congress must provide such authority more specifically; and
  • Inflated individual rights of gun possession, expanding on the prior, mistaken reading of the Second Amendment at the expense of public safety, through a disingenuous cherry-picking of historical precedent.   

“Numerous additional problems have further eroded public confidence in the integrity of the Court.  These include: the manipulation of the Senate confirmation process to destroy any semblance of Court balance; the hearing process being rendered a sham by improperly rushed, incomplete investigations and intentionally misleading assurances instead of nominees declining to address issues anticipated to come before the Court; and the specter of justices refusing to recuse in situations presenting blatant conflicts of interest.  

“Recent confirmation processes especially have flouted public expectations of openness and fairness, and the lack of enforceable ethics rules for confirmed justices leaves them unaccountable for actions considered unethical when committed by other federal judges. As a result of the Senate’s process failures and the now-overwhelming record of the Court erasing critical legal protections via legally unsound, results-driven reasoning, public confidence in the Court’s integrity is lost. To regain a measure of balance and restore confidence in the Court and the rule of law, we call on Congress to take the following minimal essential steps:

  • Lift the filibuster at least to allow Senate consideration of Supreme Court reform and voting rights restoration.
  • Pass the Judiciary Act of 2021, H.R. 2584 and S. 1141, to expand the number of seats on the Court to equal the number of circuits in the federal judiciary.
  • Pass the For the People Act of 2021, H.R. 1 and S. 1; the John R. Lewis Voting Rights Advancement Act of 2021, H.R. 4 and S. 4; and the Washington, D.C. Admission Act, H.R. 51 and S. 51.
  • Adopt an enforceable ethics code for the Supreme Court. 

Note that Lambda Legal previously has called on the Senate immediately to pass the Women’s Health Protection Act, S. 1975, and joins President Biden in renewing that call now as well.”