Supreme Discontent: Regressive Justices Take Their Toll
I made a new year's resolution not to talk about politics in 2025. Trump is obviously making that very difficult. Not for me. For Jennifer and many others I speak with. Everybody has an opinion about politics and wants to share their perspective. I just smile and tell them I am taking a “political vacation” this year. That disappoints them. It sounds to them like a cop-out, and extravagance they can't afford. Where Jennifer is concerned anyway, it is difficult for her not to share her frustrations with me. And I get that.
Years ago, I was a political animal. I worked on numerous campaigns at all levels of government. Most of late involvement was at the county level – commissioners and sheriffs, positions like that. I don't ignore politics even today. I am aware of the bull in the china shop where our “president” is concerned. But I just don't discuss it or I talk about any more than is absolutely necessary. Even then I try to take a “wider” view of the situation. That is helpful. Get out of the heat of the moment and take a long look at political activity across decades.
Taking that broader view got me to looking at politics on a different level. For example, I see the present debacle as a great test of what the Founding Fathers called “checks and balances” in our government. Will what they envisioned actually keep the Executive Branch from being a loose cannon? It is an interesting, non-hypothetical question, the answer to which will tell us about the very foundations of our constitution. After all, the Executive, Legislative and Judicial Branches of power are designed to get in each others way, prevent dictatorships, one-party (or one agenda) rule.
Another aspect of the wider view of politics has gripped my attention of late. As I have said before, I am for a liberal Supreme Court and regret that things have turned out badly in that regard. Nevertheless, it got me to pondering decisions made by the Court this century and what they may or may not say about America across these past 25 years an beyond.
As previous posts attest, I've been watching the Court closely for years. In its time, I thought the decision regarding the Affordable Care Mandate might be the most important so far this century. But, upon further, broader, reflection, three different decisions from this century stand out as monumental revelations of what amounts to regressive activism: District of Columbia v. Heller (2008), Citizens United v. Federal Election Commission (2010), and Dobbs v. Jackson Women's Health Organization (2022).
I find these three particularly infuriating today. It's not just that they're wrong—though they are. It's the sheer disingenuous nature of their reasoning. Under the guise of "originalism" and "textualism," the conservative justices are engaging in astonishing selective readings of the Constitution, inventing doctrines out of thin air while claiming fidelity to text and history. The gap between what they claim they're doing and what they're actually doing would be laughable if the consequences weren't so devastating.
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." These are the 27 words that make up the Second Amendment to the Constitution.
This amendment's structure is unique in the Constitution. Unlike every other amendment, it contains a prefatory clause explicitly stating its purpose. Why? Because the Framers wanted to make crystal clear what the right was for. The militia clause isn't window dressing—it's the entire reason the right exists.
Look at the capitalization. "Militia," "State," and "Arms" are capitalized. "People" isn't. In 18th-century legal writing, that matters. The text is practically screaming that this amendment is about well-regulated state militias, not individuals stockpiling weapons for personal use.
And what were these militias for? Article I, Section 8 tells us directly: militias exist to "execute the Laws of the Union, suppress Insurrections and repel Invasions." They were organized state entities with specific governmental purposes. The exact opposite of how gun rights advocates portray them today.
Scalia's Heller opinion revealed that his vaunted "textualism" is a matter of convenience. The text vanishes the moment the it didn't give him the outcome he wanted. His "operative clause stands alone" argument is intellectually disingenuous. No serious reader of English could look at the Second Amendment and decide that its first half simply doesn't matter. But that's exactly what Scalia did. He performed textual gymnastics to separate "the right of the people to keep and bear Arms, shall not be infringed" from the militia context that gives it meaning.
This man built his reputation claiming to care deeply about constitutional text and original meaning. But when the Framers wrote a prefatory clause—the only one in the entire Bill of Rights—Scalia decided they were just wasting ink. Apparently, they accidentally included all that militia business when what they really meant was "people can have guns for any reason whatsoever."
Justice Stevens' dissent absolutely demolishes Scalia's reasoning. Stevens shows that "bear arms" predominantly carried military connotations when the amendment was written—exactly the opposite of what Scalia claimed. But facts don't matter when you've already decided the outcome you want. Scalia wasn't interpreting the Constitution; he was rewriting it to benefit the gun lobby.
The consequences of Scalia's distortion are written in blood. By severing the Second Amendment from its militia context, the Court has made it nearly impossible to address America's epidemic of gun violence, unless you think more guns will help everything. That's it, give everybody in America a lot more guns and hear freedom ring! Any meaningful regulation now faces nearly insurmountable constitutional obstacles.
Scalia, who never stopped lecturing about judicial restraint and deference to legislators, had no problem striking down State level gun laws. The same justice who championed states' rights suddenly discovered a federal power to override State gun regulations. The hypocrisy would be comical if it weren't so deadly.
Heller exposes the fraud at the heart of conservative "originalism." When the original meaning doesn't support their preferred policy outcomes, originalists suddenly become the most flexible interpreters imaginable. Yes, Trump won. Lots of Americans believe in unrestricted gun rights. But that doesn't make the interpretation any less wrong. And it gets worse.
In 2010, the Supreme Court issued a ruling so profoundly corrupt and destructive to democratic governance that it makes Heller look restrained by comparison. I commented on it at the time. Citizens United v. Federal Election Commission transformed American elections into auctions, giving the wealthy and corporations unprecedented power to drown out the voices of ordinary citizens.
Justice Kennedy's majority opinion in Citizens United struck down long-standing campaign finance restrictions by declaring that money is speech and corporations are effectively people. This isn't constitutional interpretation; it's the judicial equivalent of declaring that water is dry and the sky is made of cheese.
Search the First Amendment all you want—you won't find a single word about money, expenditures, or corporations. At least Scalia pretended to work with the actual text of the Second Amendment. Kennedy didn't even bother with that fiction. He simply invented a doctrine out of thin air, declaring that spending unlimited sums of money is constitutionally protected expression. This wasn't interpretation; it was fabrication for the benefit of the wealthy.
Justice Ruth Bader Ginsburg saw through this charade immediately. She called Citizens United "the most disappointing" ruling during her tenure on the Court and skewered the majority for being "way off the mark" in their understanding of political corruption. With piercing clarity, she pointed out the absurdity of treating corporations—legal fictions created to generate profit and shield owners from liability—as if they were flesh-and-blood citizens with constitutional rights. She warned that the decision would flood our politics with dark money and corrupt the democratic process. History has proven her tragically correct.
Citizens United may be the most dehumanizing Supreme Court ruling of all time. It reduces speech—perhaps the most fundamentally human capacity—into a commodity that can be bought and sold by corporations. It transforms the First Amendment from a protection of human expression into a weapon for wealth of legal entities.
This is preverse logic. If money equals speech, then those with more money inherently have more speech. A billionaire now "speaks" with the volume of millions of ordinary citizens combined (to some extent this has always been the case where speech was supposedly “free” but here was an opportunity to change that). Corporate interests can (and have since the ruling) flood the airwaves with their messaging, letting freedom ring cha-ching, cha-ching.
The decision grants a human right to the corporate world. Living, breathing citizens—you know, the ones who can vote, serve in the military, and actually have thoughts and feelings—now have less practical political influence (a clearly lower volume of speech) than artificial entities created by legal paperwork.
The aftermath of Citizens United has been exactly what its critics predicted: a tsunami of dark money corrupting our politics. Super PACs sprouted like toxic mushrooms, allowing billionaires and corporations to pump unlimited funds into elections without transparency or accountability.
Our political system now functions like a marketplace, with influence bought and sold to the highest bidder. Politicians spend more time at fundraisers with wealthy donors than listening to their actual constituents. Policy priorities reflect the interests of those who can afford to buy access and influence, while issues affecting ordinary Americans are ignored.
The concept of democratic self-governance has been gutted. Equal participation—supposedly a foundational principle of American democracy—has been replaced by plutocratic rule. One person, one vote? How about megadollars vs. one vote?
Then came total regression. The 2022 Dobbs v. Jackson Women's Health Organization decision represents something unprecedented in Supreme Court history: the explicit revocation of a fundamental constitutional right that Americans had relied on for nearly half a century. If Heller warped constitutional text and Citizens United invented doctrine out of thin air, Dobbs did something even more extraordinary—it told millions of American women that the constitutional protections they had built their lives around for 50 years had simply disappeared.
When Alito and his conservative colleagues overturned Roe v. Wade, they didn't just eliminate a single right—they took a sledgehammer to the principle of stare decisis that supposedly provides stability to our legal system. The Court effectively told Americans that their constitutional rights are provisional and can be revoked whenever five justices decide they've changed their minds.
Alito's opinion drips with the same selective "originalism" that characterized Scalia's Heller decision. He cherry-picked historical evidence about abortion regulation while conveniently ignoring centuries of common law that recognized abortion before "quickening." He casually dismissed not just Roe but also Casey v. Planned Parenthood and decades of jurisprudence that had firmly established abortion as part of a broader constitutional right to privacy and bodily autonomy.
By definition, taking back established rights is regression. This isn't conserving anything—it's actively rolling back the clock on women's freedom. Dobbs returned women's bodily autonomy to pre-1973 standards, an explicit rejection of five decades of progress toward gender equality.
Dobbs completes the Court's trifecta of privileging powerful institutions over individual Americans. Heller empowered the gun industry by fabricating an individual right to bear arms divorced from militia service. Citizens United empowered corporations and the wealthy by equating money with protected speech. Dobbs empowers state governments and religious institutions by transferring control over women's bodies from individual women to state legislatures.
It should be noted that most states have subsequently elected to offer some form of abortion. Currently, 12 states have a total ban on the medical procedure while 9 states and DC have no restrictions at all, reflecting that the cultural divide is slightly weighted against abortion. 7 states ban abortion at or before 18 weeks gestation while 22 states, easily the “norm,” ban abortion at some point after 18 weeks. While the extremes of the population favor a ban over no ban at all, broadly speaking, 31 states plus DC accommodate abortion while 19 states either oppose it or ban it entirely.
But stepping back a bit, each decision discussed here reveals the same pattern: the Court interprets (or invents) constitutional principles to shift power away from ordinary citizens and toward entities with greater political, economic, and institutional strength. This isn't coincidence—it's ideology.
Just as Citizens United dehumanized speech by treating it as a commodity, Dobbs dehumanizes women by treating their bodies as state property. The decision transforms intensely personal medical decisions about pregnancy into matters of government regulation, where mostly male legislators can dictate what women can and cannot do with their own bodies.
The same conservative justices who rail against "big government" in economic contexts have no problem hypocritically allowing that government to invade a woman's uterus. They see no contradiction in limiting the EPA's ability to regulate pollution while empowering states to regulate women's reproductive choices down to the cellular level. Apparently, "limited government" only applies to corporations, not to women's bodies.
The aftermath of Dobbs has been exactly what reproductive rights advocates predicted: a healthcare catastrophe. States rushed to implement draconian abortion bans, many without exceptions for rape or incest. Women now face death and disability from pregnancy complications that doctors are afraid to treat. Others are forced to travel hundreds of miles or continue unwanted pregnancies against their will.
The decision has hit marginalized communities hardest—poor women, women of color, and those in rural areas who lack resources to travel across state lines for healthcare. In practice, Dobbs has created a two-tiered system where constitutional rights depend on your zip code and bank account.
The Dobbs decision revealed that even our most fundamental rights can be erased by judicial fiat. The Court giveth, the Court taketh away. That five decades of precedent is meaningless to those who otherwise profess a preference for precedent is a bright light shining on a fundamentally regressive judiciary. Though liberalism has its victories in small respects, the trend is rightward, regressively so.
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