Legislating from the bench

The US Supreme Court continues to give a masterclass on what happens when the judiciary becomes politicised. In the last week alone, the nine-member court, which has a six to three conservative majority, has effectively given US states the right to ban abortion, including in cases of rape or to save the mother’s life. It has also stripped the requirement for police to inform an arrested person of their rights, and, perhaps of the greatest international significance, stripped the Environmental Protection Agency, the EPA, of the right to regulate greenhouse gas emissions from existing power plants.

Like the abortion ruling and other recent conservative-led rulings stripping rights from Native Americans and removing states’ rights to restrict gun ownership, the majority provided specious reasoning to back up their clearly partisan decision-making, selectively ignoring facts and inconsistently opting for constitutional originalism in some cases, textualism in others, and ignoring the text altogether in some.

In the EPA case, Republican-led states and coal mining companies sued to remove rules that Democrats wanted to strengthen. The majority ruled that the EPA — and most other federal agencies — can only enforce rules made by Congress and lacks the authority to make such rules, while the minority noted that the agency was explicitly empowered by Congress to make rules. The verdict means the EPA cannot issue any substantive rules regulating power plant emissions, which is necessary to fight climate change and encourage the setting up of clean energy facilities.

For a background on how and why this is happening, US Supreme Court appointments are for life, and former president Donald Trump was able to appoint three judges in a single term — the most in modern history — after Republicans gamed the rules late in the Obama era. All of these judges are conservative republicans, and we should also note that what passes for “conservative” in the US would actually be classified as far-right or even extreme-right in most of the world.

Given that the US is the world’s second-biggest polluter after China, we can safely say that six partisan American judges have chosen to poison the world to favour their political allies.

Published in The Express Tribune, July 2^nd, 2022.

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