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The unintended consequences of an unbalanced Supreme Court

Any good history–especially of the past decade–should have a section of each chapter labeled “unintended consequences.”

We’re fairly sure Russia planned on claiming Ukraine launched an attack, then sending 150,000 troops in and conquering the country before the European Union and the United States could initiate sanctions. Six hundred international companies leaving Russia and the European Union slashing imports of coal and gas are unintended consequences. Others predicted include increased respect for western democracies, a new bond between Russia and the Far East, and increasing fear of our nuclear arsenals.

The recent hearings concerning Justice Ketanji Brown Jackson’s appointment suggested unintended consequences from the Republicans having a 6-3 majority on the Supreme Court.

Intended consequences appear to be the strengthening of state’s rights–and lessening of federal power–concerning abortion, environmental pollution, and voting restrictions.

What the hearings revealed is that the federal powers in these diverse areas all rest upon the interpretation of section one of the 14th Amendment. “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Sen. Mike Braun (R-Indiana) told a reporter that he didn’t see abortion–and a number of other court-protected rights–as among the “privileges or immunities” of U.S. citizens. “Well, you can list a whole host of issues…but we’re better off having states manifest their points of view rather than homogenizing it across the country as Roe v. Wade did.”

Change for a “whole host of issues” could impair the lives of many Americans.

In 2015 a Supreme Court ruling made same-sex marriage legal throughout the land. Such marriages were still illegal in 13 states. In three states–Maine, Maryland, and Washington–same-sex marriage had been legalized by popular vote; in another 11, by legislation; and in 26 states, including Idaho, by court rulings.

Two months ago, however, 22 Idaho state representatives voted against a bill (HB 472) to align Idaho and federal tax laws. Rep. Ron Nate (R-Rexburg) opposed the bill because the federal definition of marriage includes “marriages that do not fit the one-man, one-woman category [of] marriage that we have committed to being the only recognized marriage in our state.”

Apparently, some Idahoans regard the states regaining the right to ban same-sex marriages as an intended consequence of Republicans’ capturing a solid majority of the court.

But what about civil rights nationalized under the 14th Amendment five decades ago?

States have had to allow interracial marriage since the Loving v. Virginia case in 1967. At that time 16 Southern states had laws banning such marriages. Idaho was one of 14 states that had already repealed similar laws.

In 1965 the Supreme Court ruled that a ban on contraceptives interfered with married couples' right to privacy. In 26 states, however, it remained a crime to provide an unmarried woman with a contraceptive; in Massachusetts the penalty could be 10 years in jail. Not until 1972 did the court rule that single women could buy contraceptives.

Today 99% of American women use birth control at some time in their lives.

Even Brown v. Board of Education, the 1954 case which outlawed school segregation by race, is based on the 14th Amendment.

I doubt the majority of anti-abortion activists want to see schools segregated or interracial marriages dissolved. Yet, once the court whittles away one civil right now guaranteed under the 14th Amendment, extremists will bring court cases on the others.


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