The Supreme Court is Wildly Out of Touch with North Carolinians

By Whitney Ross Manzo

Last week, the Supreme Court of the United States began
issuing its most controversial decisions of the 2021-2022 term. They do this
every year around the end of June into early July, which is traditionally their ‘end of the term’ before going into their
“vacation” until the 2022-2023 term starts on the first Monday in October. (During this break,
justices do some work of reviewing petitions and preparing for the next term.
However, they are not nearly as active as during the term, such as hearing oral arguments and releasing opinions, so that they can disappear to
Austria,
if they like.)

For people who study and teach on the Court, like Michael Bitzer and
I do, words cannot adequately express how unprecedented and radical last week’s
decisions were. We are used to teaching students about how the Court relies on
stare decisis (literally “to stand by things decided”) in order to promote
stability and consistency in law. We explain how justices must use sound legal
reasoning in order for their decisions to be respected and upheld by the other
branches of government, and ultimately by the public at large.

Last week’s decisions took a giant wrecking ball to
basically every lecture I have on the Supreme Court, because they illuminate
how none of these things are actually true. Justices don’t rely on stare
decisis unless it suits them. Justices don’t have to use sound legal reasoning
because, honestly, who’s going to stop them? They are the final say on the
Constitution, after all.

But should they be?

After all, the Constitution says nothing about judicial review. The Supreme Court took this power for
themselves all the way back in 1803, and somehow are still permitted to
keep it. This idea is even more hilarious juxtaposed next to the current
Court’s insistence that we should only follow governmental institutions and
processes that the Founding Fathers would have wanted, since at least one of
the Founding
Fathers promised that the Court would never have this much power.

Additionally–and perhaps most importantly–some of the most recent Supreme
Court decisions demonstrate how wildly out of step they are with the views of most
North Carolinians.

Case #1: Dobbs v.
Jackson Women’s Health Organization

If you’ve heard of any of the decisions of this term, it’s
almost certainly the Dobbs decision. That’s because it overturned the legal precedent of Roe v. Wade (1973) and the case that
reaffirmed it, Planned Parenthood v. Casey (1992). We have been waiting for the official version of this
decision to come down ever since the draft version was leaked in early May, and
it is just as devastating as pro-reproductive rights activists feared.

So what did the Court rule?

In a 6-3 vote, the Supreme Court held that the US
Constitution does not confer a right to an abortion, saying that “The Constitution makes no
reference to abortion, and no such right is implicitly protected by any
constitutional provision.” Therefore, the precedents of Roe and Casey are
overturned, and the right to decide what to do on abortion falls to each
individual state. The decision also implies that there is no right to privacy when it comes to “a woman’s decision whether or not to terminate her pregnancy”–and remember, the word “privacy” does not appear in the Constitution either–but
does not come out and say that explicitly.

What do North Carolinians think?

As we found in the April 2022 Meredith Poll, only 10 percent of North Carolinians favor making abortion totally
illegal. Everyone else believes abortion should be legal in at least some
cases, with the most chosen response to “maintain the spirit of Roe v. Wade”
at 27 percent. The second most chosen response was to expand Roe at 25.6 percent. 

This
indicates that the majority of North Carolinians were fine with the way things
were prior to the Dobbs decision, because the plurality liked Roe as it was and
the second largest group of respondents could fight to have Roe expanded in the
state of North Carolina via the General Assembly, as several other states have
done.

As the chart below shows, Republicans were the group most
unhappy with Roe. However, their preferred option is not to make abortion
totally illegal, but instead to limit it by either making abortion illegal
earlier in the pregnancy or by limiting abortion to only cases of rape, incest,
or threatening the health of the mother. These limitations to Roe could have
been accomplished without overturning Roe completely, because Planned
Parenthood v. Casey described situations in which states could constitutionally
limit abortion.

Again, the plurality of North Carolinians were fine with
Roe, which alone suggests it shouldn’t have been overturned. This result is
even more convincing when paired with the pre-Dobbs reality that those who
wanted a little more or a little less than Roe could accomplish their goals via
their state legislature. 

As Chief Justice John Roberts wrote in his concurrence
to Dobbs, the Court did not have to go as far as they did, and probably should
not have done so if they want their decisions respected by the public: “The Court’s
decision to overrule Roe and Casey is a serious jolt to the legal
system—regardless of how you view those cases. A narrower decision rejecting
the misguided viability line would be markedly less unsettling, and nothing
more is needed to decide this case.”

Case #2: New York
State Rifle & Pistol Association, Inc. v. Bruen

The word on the street (read: law Twitter) is that the Court
held onto this decision and released it later than was originally scheduled due
to the tragedy in Uvalde, TX where a shooter with an AR-15 killed several
elementary students and their teachers. Evidently, the justices felt that this
decision was radical enough that it shouldn’t be issued directly following a
mass shooting, but not so radical that they should change anything in it to, I
don’t know, help ensure that future mass shootings are harder to pull off?

So what did the Court rule?

In another 6-3 decision, the Court held that an over
100-year old New York law was unconstitutional because it required that
citizens demonstrate a “special need” to carry a handgun in public, which, according to the Court’s majority, violates the 2^nd Amendment right to bear arms
and the 14^th Amendment’s requirement of equal protection of the laws. 

Similar to Dobbs, the Court went beyond the actual question at hand (was the
New York law constitutional?) by declaring that all laws related to guns must
be examined under strict scrutiny, which is the most exacting level of review by the courts. This will make passing any kind of gun
regulation much, much harder.

What do North Carolinians think?

As Pew
Research found in 2021, nearly three-quarters of Americans (72 percent) believe that gun
violence in the United States is a “big problem.” Democrats, urban dwellers,
and Black Americans are the most concerned about gun violence, while
Republicans, people who live in rural areas, and White Americans are the least
concerned about gun violence.

Pew also found that between 52-60 percent of Americans favor
stricter gun laws, while only 11-18 percent of Americans favor less strict gun laws. 

In a Meredith Poll conducted in October
2019, a full 76 percent of North Carolinians would support a law
that would take weapons away from someone that a judge has determined is
dangerous to themselves or others. Nearly four-out-of-ten, or 38.6 percent, of North Carolinians would be more
likely to vote for a candidate who supported an assault weapon buyback program, while 25.3 percent would be less likely to vote for that candidate.

The chart below shows that the likelihood of voting for a
candidate who would implement a gun regulation is conditioned strongly on
whether the respondent owns guns or not. However, about one-third of both gun
owners and non-gun owners said that this position would make no difference in
whether they voted for the candidate in question, suggesting that this might
not be the top priority for them.

As Justice Breyer notes in his dissent
to Bruen, already in 2022 there have been 277 mass shootings, which is more
than one per day. The United States is beaten only by Brazil in the number
of gun deaths each year (and these two are enormous outliers among the rest
of the world). This case concerned only one regulation that had been put in
place to limit gun violence, but many US states have passed other common-sense
gun regulations, like universal background checks and limitations on
high-capacity magazines, and the federal government banned military-style
weapons from 1994-2004. All of these regulations are evidently now questionable,
according to this Court, even though each of these regulations enjoys fairly
widespread support among the American public.

These two decisions not only mean that a few long-settled laws
in the United States are now overturned. They also paint a picture of a Supreme
Court that holds views entirely different from the average American citizen, which is damning enough even without going through all the reasons why these decisions, together, are logically inconsistent (very quickly: how can society not have abortion, because it isn’t explicitly mentioned in the Constitution, but can have unlimited bullets, which also aren’t mentioned and were not even invented yet?). 

The main point is this: if
the definition of a democracy is that The People have the final say, can we still
call ourselves a democracy when six unelected, unrepresentative judges are the ones having the
final say?

——————–

Dr. Whitney Ross Manzo is an associate professor of political science at Meredith College. She tweets at @whitneymnz.