The Supreme Court ended Roe v. Wade.
When the court finally got around to issuing the reprehensible 5-4 shadow docket decision on Texas’s bounty-hunting, 2-week abortion ban, which had already gone into effect and is spreading to other states, the utter dereliction of duty and disregard for the Constitution was breathtaking. But so was the hypocrisy.
Justices Kavanaugh, Barrett, Thomas, Alito, and Gorsuch swore an oath on the Bible to uphold the Constitution, but have been acting like it was the other way around. They violated that oath, putting their personal religious beliefs above the Constitution and reverse-engineering a craven, unintelligible one-paragraph opinion that honors their personal gods, not their sworn oath.
Cast your mind back to April of this year. Covid cases were rising again after a March dip and, though down from its mid-January high, the virus was raging. Those of us who hadn’t politicized a lethal pandemic were eagerly getting vaccinated. California had thousands of daily Covid cases and a hundred or so deaths a day and had implemented a responsive rule meant to maximize freedom and limit transmission by adjusting measures according to infection rates.
Depending on infection rates, one of four tiers of restrictions applied to an area. In-home gatherings were either banned or limited to a percentage of capacity or, for private homes, limited to “three households.” Importantly, this applied to all gatherings in private homes whatever their purpose. Secular gathering in a private home? Three households. Religious gathering in a private home? Three households. Everyone was treated equally. But to some Christians equality is persecution.
A full-time pastor in Santa Clara challenged the rule because studying the Bible is more important than other people’s lives. He’d been meeting once a week with 8-10 people for an in-home bible study. A woman who has hosted a rotating bible study with six couples every two weeks also challenged the rule. They claimed the rule violated their “religious freedom” because it hampered their Bible study. There was no burden on their religion. They all could have met virtually. They could have studied the Bible on their own. But the pandemic was politicized and they were out to claim their Christian privilege.
A three-judge panel—two W. appointees and a Trump appointee—ruled 2-1 that the rule was valid because it treated religion fairly and equally.
But equality is not the goal for the activist justices: Kavanaugh, Barrett, Thomas, Alito, and Gorsuch. They’re out to protect Christian privilege. So those five justices—the same who struck down Roe—went out of their way to decide this case when they didn’t need to.
By the time this case got to the Supreme Court, even on the expedited shadow docket, the state had announced that a new rule would take effect on April 15. The justices knew about this new rule. It allowed “Bible studies, prayer meetings, and worship services at their homes” with 25 people indoors in Santa Clara County. In other words, those challenging the rule would have been able to have their Bible study. It’s possible the new rule would have been in place by the next Bible study.
But this court wants to decide cases in favor of Christian Nationalist interests. It’s eager to. So, ignoring procedure and long standing judicial principle, the court jumped in on April 9, 2021 with a midnight ruling. Just six days (five, really, given how late the decision dropped) before the rule change, the court rushed to decide a case it didn’t need to decide. The five crusading justices (and yes, I use the word “crusading” intentionally) rewrote the First Amendment using the shadow docket and an opinion that was only nine paragraphs long.
Steven Vladeck, a law professor and leading expert on the court’s use of the shadow docket, noted at the time that this “ruling was the seventh time since October that the justices have issued an emergency injunction—all of which have blocked Covid restrictions in blue states on religious exercise grounds. Before these rulings, the court had gone five years without issuing a single injunction pending appeal.” For these justices, religion deserves special treatment.
Several studies have convincingly shown that this activism only applies to “religious freedom” cases. The court didn’t overturn any public health laws for other First Amendment rights, like free assembly and free speech. The religion of the justices also seems to play a decisive role in these decisions. According to the abstract of one study, for example:
The Roberts Court has ruled in favor of religious organizations far more frequently than its predecessors—over 81% of the time, compared to about 50% for all previous eras since 1953. In most of these cases, the winning religion was a mainstream Christian organization, whereas in the past pro-religion outcomes more frequently favored minority or marginal religious organizations. A statistical analysis suggests that this transformation is largely the result of changes in the Court’s personnel: a majority of Roberts Court justices are ideologically conservative and religiously devout—a significant break from the past.
Once Barrett was on the court, the brakes Chief Justice Roberts had applied to maintain judicial legitimacy were off. (Chief Justice Roberts almost certainly agrees with gutting Roe, but understands that preserving the legitimacy of the court—its only currency—requires incremental changes and following procedure. He’s no liberal, he just would have done this differently.) Once Trump and McConnell forced Barrett onto the court (and country), the five Covid justices began rewriting the law using the shadow docket.
And that’s what it just did to gut Roe v. Wade. It used this emergency procedure which has minimal briefing and no argument to rob Texans of their bodily autonomy and institute a vicious mob rule that harkens back to some of the worst imagery in American history. The five justices of the judicial apocalypse eagerly ignored procedure and precedent to privilege the Bible-perusing pastor, but did nothing to protect the constitutional right to an abortion for Texans. Did nothing while a clearly, deliberately unconstitutional law went into effect. As law professor Mary Ziegler explained, “Saying nothing suggests that there was no emergency—and that a massive shift in abortion law in one of the nation’s largest states is a matter of no particular import.” But missing a single, in-person Bible study despite a plethora of alternatives? That could not be countenanced.
When the justices finally acted on the Texas law late last night, they allowed a law that was created to be unconstitutional to go into effect. They killed Roe. They stole a hallowed constitutional right from all of us.
And they did so in a single paragraph; a textual shrug, a jurisprudential “meh.”
Any attempt to read into that paragraph some sort of legal principle or jurisprudential consistency is a fool’s errand. This was unprincipled in every sense of the word. Five people had the power to consummate a divine mission. So they did.
One paragraph to overturn the Constitution and relegate half the country to second-class status. After a nine-paragraph opinion a few months ago to privilege Christians. That’s ten short paragraphs that have entirely rewritten American constitutional law. The enormity of this theft cannot be overstated. Nor can the hypocrisy.
The hypocrisy of the Supreme Court since Barrett was foisted on the nation has made one thing clear: This court is not a court of law or justice. This is a court driven by partisan politics and Christian supremacy.
And it’s only just getting started.
This article is adapted from an early draft manuscript of the author’s new book, Weaponizing Religious Freedom, due out next year.