“You seem to consider the [Supreme Court] judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”
― Thomas Jefferson
A recent series of radically partisan judicial decisions by the United States Supreme Court heralds the first rollback of fundamental human rights since the Post-war era. The fact it was done in a country long respected internationally for its commitment to the rule of law and the protection of fundamental rights at the heart of its Constitution makes it all the more disturbing.
In a matter of days, these court decisions significantly eroded or outright obliterated human rights in the US concerning bodily autonomy, the separation of church and state, environmental rights, tribal rights, safety from gun violence, and abortion. All of this flies in the face of the Universal Declaration of Human Rights and the United Nations Charter which enshrined a principle of human rights centered on the dignity and worth of the human person, the equal rights of men and women, and the promotion of social progress. Those documents ushered in an international human rights revolution. What we see now is a judicially-spearheaded counterrevolution led by six unelected judges that undermines the human rights of the entire US population, threatens decades of hard-won protections, and calls into question the moral standing of the US in the world.
To be clear: on the legal front, this reversal potentially represents a new “Dark Age” of human rights in the US unlike anything the world has seen from a country traditionally respected as a “rule of law” leader. It is the direct result of five US Supreme Court decisions in particular: Dobbs v Jackson Women’s Health Authority (banning a federal right to abortion), West Virginia v EPA (essentially blocking most action by the EPA to address the climate crisis), Carson v Makin (undermining the Establishment Clause by saying states must fund religious schools), Kennedy v Bremerton School District (eroding the separation of church and state by allowing a coach to lead prayer on a football field after a public school game), and New York State Rifle & Pistol Association, Inc. v. Bruen (finding that states cannot restrict the carrying of guns outside the home). Each decision in its own way has contributed to the degradation of the very structure of American constitutional human rights after decades of security.
In earlier eras of US legal history, any revocation of a constitutional right had been within the domain of the legislative branches of government where the people had a say, for better or for worse. Not anymore. The very branch of government set up as the last defence to protect fundamental rights is now the sword that is slaying them. With the decision in Dobbs (reversing 50 years of abortion rights based on the 1972 Roe v Wade decision), we see for the first time in the entire legal history of the US that it is the unelected Supreme Court and not the legislature that has revoked a constitutional right that had previously been thought secure. The unprecedented and antidemocratic nature of this as a legal development cannot be understated. Beyond a violation of the separation of powers doctrine, it now means that the branch of government in which the people have the least voice is the one that has the most power over their lives and futures.
In West Virginia v. EPA, the Court strictly limited the government’s ability to combat greenhouse gas emissions. In Carson v Makin, the Court essentially authorized schools to discriminate based on religious and sexual affiliation in the student admissions process. In Kennedy v Bremerton School District, the Court pretty much did away with the long-used Lemon test, which prevented promoting a particular religion in the secular sphere. Finally, in New York Gun and Rifle Association, the Court ensured that guns have more rights than people in America. All of these are anti-majoritarian decisions that fly in the face of popular sentiment.Historically, much of the early struggle for human rights was confined to recognition and enforcement of rights already agreed to under international law in the Post-war era — and to the extension of new rights needed to better protect the most vulnerable. However, the rash of recent Supreme Court decisions marks a radical departure and signals a new era that limits human rights in the United States.
Previously, the majority of the negative Supreme Court jurisprudence concerned the denial of recognition of potential rights or the limitation of their scope. However, we are now in a new paradigm where the courts are more inclined to take away rights altogether rather than to expand them. In many ways, this represents the culmination of a decades-long process in American legal history that began with the decision in Bush v Gore to essentially interfere in the electoral process and determine the outcome of the 2000 national election and install George Bush as President even before all the votes were appropriately counted. In that case, even the court itself acknowledged discomfort with its role. Bush v Gore epitomized a blatant display of the Supreme Court’s anti-democratic powers and helped lay the groundwork for an era when women have lost control of their bodies, while guns and corporations are now granted more rights than people.
What then is the US Supreme Court’s next step regarding fundamental human rights? In his concurrence in the Dobbs decision outlawing a federal right to abortion, Justice Clarence Thomas provided a glimpse of even darker times ahead. Justice Thomas emphasized that the decisions in Obergefell v. Hodges, Griswold v Connecticut and Lawrence v Texas and other more recent fundamental rights decisions need to be revisited, implying they were decidedly incorrectly and should meet the same fate as Roe. It is a slippery slope from gay marriage and contraception to unlawful detention and voting rights.
Each of these rights was built on the hard work of citizens and courts around the world to extend fundamental rights and equality under the law. All human rights are indivisible and interdependent. It does not work to lose one fundamental right and keep the rest. You either have them all or have nothing. The Titanic sank in its entirety with one gaping hole.
Since its founding, the United States was warned that this day could come absent appropriate vigilance. As Jefferson recognized, the Supreme Court was unelected and unaccountable to the people yet it was the ultimate arbiter over the nature of rights granted by the Constitution. The prescient Jefferson considered this a major mistake. He noted: “The Constitution, on this hypothesis, is a mere thing of wax in the hands of the Judiciary, which they may twist and shape into any form they please.”
If recent days are any indication of the future, the US Supreme Court has abused its power and as a result fundamental rights are in peril. The court’s structure must be reformed to cure this problem and prevent it from going rogue on human rights in a way that threatens the entire US population and inspires increasingly autocratic approaches to the law globally.
Steven Donziger, BA, JD, is an American environmental advocate, writer and public speaker on human rights and corporate accountability. He was a lawyer on the team that won a historic $9.5 billion judgment against Chevron for their pollution of the Amazon rainforest. John F. Manderscheid BA, MA, LLB, LLM, is a Canadian legal historian and human rights advocate, currently completing his Articles of Clerkship. His current research focuses on the legal history of class and the history of socio-economic human rights.
The views expressed in this article are those of the authors, and do not necessarily reflect the views of their employers or of JURIST Legal News.
Suggested citation: Steven Donziger, John F. Manderscheid, The US Supreme Court Launches A Human Rights Counterrevolution, JURIST – Academic Commentary, July 13, 2022, https://www.jurist.org/commentary/2022/07/the-us-supreme-court-launches-a-human-rights-counterrevolution/.
This article was prepared for publication by Ingrid Burke-Friedman, Features & Commentary Editor. Please direct any questions or comments to [her] at commentary@jurist.org
