America vs. the Supreme Court

Posted November 4, 2023

Categories: Articles, Featured, US Domestic Policy


After last year’s NATO summit, Joe Biden talked to reporters about the war in Ukraine, U.S. military assistance to the government in Kyiv, the invitations to Sweden and Finland to join NATO, and the global economy.

The message that the U.S. president emphasized, on all of these issues, was that “America is back.” After the isolationist rhetoric of the Trump years, the United States was once again participating in multilateral initiatives and shouldering its share of alliance burdens. It was the defining message of his presidency from day one.

But the first question Biden fielded at the press conference was not about foreign policy at all. It was about the Supreme Court, which had recently overturned constitutional protections for abortion, and the perception both domestically and internationally that the United States was not back, but backwards.

Biden’s answer was telling. He insisted that America was indeed moving forward. “America is better positioned to lead the world than we ever have been,” he said. “We have the strongest economy in the world.  Our inflation rates are lower than other nations in the world.”

But then the U.S. president pivoted: “The one thing that has been destabilizing is the outrageous behavior of the Supreme Court of the United States on overruling not only Roe v. Wade, but essentially challenging the right to privacy.”

Over the last year, the Supreme Court has continued to drag the United States backwards on a number of issues. The implications for global affairs are enormous.

Nine justices sit on the Supreme Court. Though he served only one term in office, Donald Trump had the unusual opportunity to appoint three of these justices. One of those openings should have been filled by his predecessor, Barack Obama, but Republicans in the Senate blocked the appointment. Trump persuaded the moderate Anthony Kennedy to retire. And the third opening came when the liberal Ruth Bader Ginsburg died.

All three of Trump’s appointments—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett— occupy the far right of the judicial spectrum. As a result, a relatively balanced Supreme Court now tilts dangerously in the direction of extremism, with only three liberal members alongside one conservative and five ultra-conservative justices. Given the relative youth of Trump’s appointees, they could shape the decisions of the Court for decades.

They have already made their mark. In addition to undermining the legality of abortion, the Court ruled that Americans have the constitutional right to carry a gun in public, restricted the Environmental Protection Agency’s (EPA) ability to regulate the energy sector, and blurred the separation of church and state by allowing prayer at public school sporting events and religious schools to receive state funding,

Then, this summer, the Court delivered three bombshell decisions. It reversed affirmative action, namely the use of race in college admissions to redress historic injustices. It blocked the Biden administration’s effort to forgive student debt. And it upheld the right of businesses to discriminate against LGBT customers.

Over the last two years, the Supreme Court’s decisions have not all been illiberal. The Court rejected a Trump-inspired effort to give state legislatures the right to determine the rules for federal elections. It also supported the Biden administration’s effort to overturn the Trump-era policy of forcing asylum seekers to “remain in Mexico.”

But in general, the current Supreme Court has been instrumental in reversing decades of legal and political progress. The ultraconservative justices have been assisted by Trump appointees throughout the court system (in his four years, Trump appointed nearly as many powerful federal appeals court judges as Obama did in eight years). As a result, women and minorities face renewed threats to their lives and their privacy. Even as gun violence has increased in the United States, guns have become more prevalent in public spaces. And the Court has made it more difficult for federal agencies like the EPA to take action to arrest climate change.

All of these decisions complicate the Biden administration’s efforts to present the United States as a force for good in the world. When the administration tries to uphold women’s rights abroad, critics can point to the Supreme Court’s ruling on abortion and accuse Biden of hypocrisy. Efforts to promote LGBT rights are undercut by Court decisions in support of discrimination.

But perhaps the most far-reaching decisions, at least at a global level, concern climate change.

In 2015, the Obama administration implemented a Clean Power Plan that for the first time set nationwide limits on carbon emissions at power plants. Power plants are the largest source of carbon emissions in the United States. The Obama policy has been the cornerstone of U.S. efforts to meet its Paris Agreement commitments to achieve carbon neutrality by 2050.

The Supreme Court, however, ruled that the EPA, which has been responsible for implementing the Clean Power Plan, exceeded its regulatory mandate. Led by its ultra-conservative majority, the Court has been attempting to roll back the growth of the “administrative state.” But the only way the United States will be able to address climate change effectively is through just such an administrative state. Industries will not regulate themselves, and the free market has proven incapable of responding with sufficient urgency to the crisis.

As a result, according to the Council on Foreign Relations, “The regulations that the Biden administration plans to roll out in 2023 must now fit within the narrower confines of this ruling. The EPA will face greater restrictions on its ability to drive a national transition to renewable energy.”

So, how can the United States lead the global campaign to bring down carbon emissions and facilitate a clean energy transition when it can’t even push through regulations on its own power plants? The Republican Party has made it difficult for the Biden administration to meet its environmental promises, but at least the administration was able to push through Congress the clean energy provisions in the Inflation Reduction Act. And the executive branch has considerable leeway to enact important policy shifts, as it did when Biden rejoined the Paris accord and canceled the permit for the Keystone XL pipeline as his first major acts as president in 2021.

The Supreme Court is another matter. It is not elected. It (theoretically) can’t be lobbied. The ultraconservative majority wants to reduce the ability of the state to regulate the environment and guns and yet increase the state’s control over women’s lives. These justices are determined to transform America. Equally troubling, they want to change the way America interacts with the world. Forget about leading by example or even leading from behind. The Supreme Court is intent on showing the world how to upend public efforts to address discrimination, gun violence, and climate change.

Hankyoreh, June 25, 2023

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