In his majority opinion for Dobbs v. Jackson Women’s Health in 2022, Justice Samuel Alito made a deliberate effort to emphasize that permitting states to prohibit abortion does not lead to a disregard for other fundamental human rights. Justice Alito asserted that abortion is distinct due to its association with “potential life,” thereby distinguishing it from other rights recognized by the court, such as birth control or same-sex marriage. He further contended that the Dobbs case does not compromise any other rights in any manner.
At the time, hardly anyone believed him. This is largely due to the fact that Republican claims of being “pro-life” are often seen as a flimsy cover for their authoritarian fixation on controlling people’s sexual choices. Adding to the skepticism, Justice Clarence Thomas used his concurrence in Dobbs to urge Republican lawmakers to target other rights. He suggested that the Court should reexamine previous decisions that legalized contraception, homosexual sex, and same-sex marriage.
Even those who were most skeptical of Alito’s intentions could not have predicted just how much the Supreme Court would view the Dobbs case as an opportunity for red states to erode human rights. This past week, the Court made a concerning decision by declining to block two actions taken by the Texas government, actions that clearly infringe upon basic constitutional protections.
Last week, the Supreme Court granted permission to West Texas A&M University to enforce its ban on drag shows organized by on-campus groups, despite the fact that this decision goes against decades of First Amendment precedent. This week, the Supreme Court once again allowed Texas to temporarily proceed with an unconstitutional claim that state law takes precedence over federal jurisdiction in immigration matters. It is important to note that these decisions do not serve as the final verdict on whether Texas can openly disregard the constitutional order. However, the fact that they have been allowed to advance this far demonstrates the Supreme Court’s apparent willingness to support Governor Greg Abbott, a Republican, in his efforts to transform the state into a far-right dictatorship.
The Supreme Court has yet to make a definitive decision on the prohibition of drag, but they did permit the implementation of the existing campus ban while the case is ongoing. Legal reporter Ian Millhiser at Vox finds this to be outrageous since it is an obvious violation of free speech. According to Millhiser, by upholding the ban, even temporarily, “college students in North Texas are being deprived of their First Amendment rights indefinitely.”
The immigration decision is a highly complex issue, but it ultimately leads to the same outcome. The Supreme Court made the decision not to block a Texas law that blatantly disregards the Constitution and goes against established court precedent. Governor Abbott recently enacted a law that grants state law enforcement the power to detain and potentially deport immigrants, despite the fact that historically, the enforcement of immigration law has been the sole responsibility of the federal government. Abbott’s law is considered to be so extreme that even those who are skeptical of the far-right Supreme Court find it hard to believe that they would allow Texas to enforce it. Therefore, it came as quite a surprise when the Supreme Court allowed the law to take effect while it is still being argued in court.
Legal expert Mark Joseph Stern analyzes the intricate legal tactics employed by Republican-appointed justices on the Supreme Court and the Fifth Circuit Appeals Court. Despite their knowledge that the Texas law is unconstitutional, these justices, driven by partisan motives, refuse to intervene and prevent the tragic outcomes faced by child migrants. Stern reveals that they have resorted to manipulative procedural maneuvers to indefinitely protect Texas’ law from Supreme Court scrutiny.
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Jorge Dominguez, an immigration attorney in El Paso, Texas, expressed his concerns to the Washington Post, wondering if his ethnicity, ability to speak Spanish fluently, and appearance would make him susceptible to detention due to being mistaken for someone who crossed the Texas border illegally. He questioned whether being a U.S. citizen would be enough to protect him from such a situation.
The legal intricacies aside, another group of Fifth Circuit judges, seemingly less radical than the previous ones, had the opportunity to intervene and temporarily block the law. This is certainly a relief, but it doesn’t change the fundamental situation: The Supreme Court was willing to allow Texas to implement a law that they know cannot be justified legally, using “shameless gamesmanship” as a legal tactic. What’s even worse is that Republicans in other states are becoming more confident that the court will eventually disregard the constitution and grant states the right to do the same. According to the New York Times, Iowa has already passed a similar bill, and at least six other red states are contemplating following suit.
