The Supreme Court gone rogue

The Supreme Court is abetting a constitutional crisis by emitting purely political opinions that open war among the states. It did so in overturning Roe v. Wade by abolishing a national standard. On gun control, it also deepened the war among the states by doing the opposite – trying to impose measures that many states have regarded as dangerous for a century or more.  On both issues, the court is an outlier whose opinions do not reflect the preferences of most Americans.

When the dust settles from the decision to overturn Roe v. Wade, abortion is likely to be illegal or very restricted in at least 20 states that accounted for 250,000 abortions in 2020. It is painfully plain that clinics in those states will face prosecution if they continue to perform abortions. What is up for grabs – and illustrative of the conflicts among states to come in a loosening American federation – is what will happen to clinicians in blue states who offer telemedicine, including abortion pills, to women in states where doing so is against the law. Will they be sued, or arrested? 

In the words of three law professors: “In a post-Roe country, states will attempt to impose their local abortion policies as widely as possible, even across states line, and will battle one another over these choices. In other words, the interjurisdictional abortion wars are coming.”

Those wars will be all too reminiscent of the conflict two centuries ago over slave states’ constitutional right to recapture slaves who escaped to free states. Given this, it is all too easy to imagine that the next front in the war will focus on family choice (gay rights, interracial marriage), and gender-changing counseling and procedures. In July of this year, Rep. Marjorie Taylor Greene (R-Ga.) called non-biological parents “fake mom and fake dad.”

Last June, the court struck down a New York law, passed in 1911, that required anyone wanting to carry a handgun in public to prove that they had a “proper cause” to do so. President Biden said: “This ruling contradicts both common sense and the constitution and should deeply trouble us all.” Four in five New Yorkers wanted the law to be upheld, according to a Siena College poll. Already conflict between the states is almost built-in because people can travel easily from a state restricting purchases of guns to one where guns are easily acquired at a gun show. By pitting the states against each other, it has made it harder for states like New York and California to maintain their aspirations for some control. Small surprise that crime rates are higher in red states than blue: Oklahoma’s murder rate in 2020 was almost twice New York’s.

The bald partisanship of the court not only puts it out of step with the American public but also is diminishing public trust in the institution. Almost twice as many Americans thought Roe should be upheld as favored overturning it, in a May 2022 WashingtonPost/ABC News poll. Views about gun control are harder to parse, but a Marquette law school poll the same month found that only 19 percent of Americans favored unlicensed concealed carry of weapons. Unsurprisingly given the dissonance between the court’s partisanship and the public’s views, in a Pew Research Center poll in February 2022 only 54 percent of those polled had a favorable view of the Court, down from 70 percent in August 2020.

The Supreme Court is speaking out of its mouth in both ways, on one hand saying that for abortion there’s no national standard and, on the other, that for guns there must be, and one decreed by the court. Both are purely political, and both will produce a civil war among the states that surely will turn uncivil. 

Karen Treverton is former special assistant to the president of RAND, and manager of the RAND Terrorism Database.

Gregory F. Treverton was chair of the U.S. National Intelligence Council until January 2017.  He is now Professor of the Practice at Dornsife College, University of Southern California, chair of the Global TechnoPolitics Forum and executive advisor to SMA Corporation.