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She just sit there as the night grows still


As Linda Greenhouse observes, the elections of 2014, 2016 and 2018 turned the Supreme Court into a Republican weapon that will be detonating for decades:

When the Supreme Court overturned a 41-year precedent three years ago and ruled that public employees have a right under the First Amendment’s free speech guarantee not to pay union dues, Justice Elena Kagan accused the 5-to-4 majority of “weaponizing the First Amendment” to serve its anti-labor agenda.

Her powerful dissenting opinion in Janus v. American Federation of State, County and Municipal Employees helped propel the “weaponizing” image into circulation as an apt description of how the court’s conservatives were hijacking the First Amendment and converting it into a tool of deregulation.

Now it’s the Supreme Court itself that has been weaponized.


The imminent evisceration of the constitutional right to abortion, clearly apparent from the Dec. 1 argument in the Mississippi abortion case, is only the beginning. The argument last month in a case from New York on how strictly a state can regulate the carrying of concealed weapons strongly suggested that the court will expand the boundaries of the Second Amendment well beyond the 2008 Heller decision, which found a right to keep a handgun at home for self-defense and was itself a transformation of the long- established understanding that the amendment protected a collective right rather than an individual one.

Last week’s argument in a religion case from Maine indicated that a decades-old understanding about the extent to which religious schools can lay claim to taxpayer support is similarly about to be shattered.

Further, the justices will soon decide whether to add affirmative action to the smoldering culture war that is the current Supreme Court term. The fact that the high-profile case against Harvard’s admission policies went down to defeat in two lower federal courts, and that it even lacks an actual plaintiff who can claim to have been injured by Harvard, is not likely to deter a bloc that finally — following the retirement of Justice Anthony Kennedy and the death of Justice Ruth Bader Ginsburg — has the votes to put an end to race consciousness in university admissions.

Individually, these cases have not lacked for public attention (although the religion case, Carson v. Makin, merits a good deal more than it has received, for reasons I’ll explain). But it’s putting them together, and understanding how they found their way to the court’s docket within months of Amy Coney Barrett’s confirmation, that tells the story. The New York gun case, the Mississippi abortion case and the religion case from Maine were each handpicked by the justices (an act that requires the votes of four of the nine) from among the thousands of cases the court receives each term — 5,227 in the last term, to be precise.

And this is just one term! And while the elections of 2020 avoided the worst they weren’t enough to provide any disincentive to the Court to do whatever it wants. It’s going to be very, very grim.

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