Indignity Vol. 2, No. 53: Crisis of conscience.
DEFERRED JUDGMENT DEP'T.
How Far Will the Supreme Court's Reversal of Rights Keep Going?
THE SUPREME COURT’S decision on Monday in Kennedy v. Bremerton School District, granting a public high school football coach the power to hold prayer sessions at the 50-yard line, sounded modest by the standards of the majority's current spree. Unlike the decisions just before it, overturning Roe v. Wade and drastically limiting longstanding gun-control measures in multiple states, the Kennedy opinion professed to be a simple application of existing law—in which the six justices of the court's right wing corrected the overreach of the school district and the misunderstandings of all the lower courts, to protect what Neil Gorsuch described as "a brief, quiet, personal religious observance."
As the three dissenting justices pointed out, Gorsuch and the majority were making this up. The coach's prayer gatherings were obvious public spectacles, injecting religious observance into the literal center of a school event, and when he was asked to tone them down, the coach responded by seeking out attention until, as the dissent described, "[m]embers of the public rushed the field to join Kennedy, jumping fences to access the field and knocking over student band members." The lower courts had already criticized Kennedy for falsely representing his actions, a factual documentary record that the Supreme Court majority simply lied about.
In practice, more often than not, this is what the collapse of the 20th century revolution in American rights—the liberal consensus the writer John Ganz called "the antifascist hegemony," which "was allowed to ossify and go undefended"—will look like. One day, everyone understood that the separation of church and state meant a football coach couldn't lead a weekly prayer under the lights; the next day, no one could understand what the separation of church and state might mean at all.
Even with the right-wing majority feeling rampant, most Supreme Court decisions aren't likely to be sweeping, epochal declarations of power like Dobbs v. Jackson Women's Health. They're going to be petty and disingenuous declarations of power, like Kennedy, or like Chief Justice John Roberts' serial dismantling of the Voting Rights Act. Why bother rejecting racial equality in voting, when you can simply strip away the provisions that have made equality possible, one by one?
On Tuesday night, in an unsigned order with the three liberals dissenting, the court reinstated a Republican-drawn congressional map in Louisiana, overruling a lower-court finding that the map was likely biased against Black voters. As in Kennedy, the majority ignored the facts of the case—this time, without even going to the trouble of offering an alternative set of facts.
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