By Harlan Garbell
“Ethics is based on well-founded standards of right and wrong that prescribe what humans ought to do, usually in terms of rights, obligations, benefits to society, fairness, or specific virtues.”
— Markkula Center for Applied Ethics
“In civilized life, law floats in a sea of ethics.”
— Earl Warren, Chief Justice of the United States Supreme Court (1953-1969)
As many of you know, Earl Warren was instrumental in leading the Supreme Court to a new era where a broader interpretation of the Constitution served to increase the rights of many people in this country previously discriminated against or otherwise left behind. For example: decisions ending segregation, eliminating official school prayer in public schools, establishing a constitutional right to privacy, and mandating that a person arrested for a crime has a right to remain silent.
These decisions benefited many people who had been historically ignored or mistreated in this country, including women, minorities, the unjustly accused, and the poor.
Growing up during the 50’s and early 60’s in a liberal household, and preternaturally curious about politics and governmental affairs, I came to see the Supreme Court of that era as the champion of ordinary people. That, for example, no matter how venal and corrupt Dixiecrats and powerful corporations could be, the Supreme Court would always make things right in the end. That the arc of justice always moved in a forward, progressive direction with the presumption that there was an ethical core motivating the justices — unlike among the hypocritical (and often corrupt) maneuvering politicians in the other branches of government.
Unfortunately, history has proven me wrong — as history often does. Unless you have been living on an ashram in the Himalayas, you know that the Supreme Court, with some exceptions, has dramatically reversed course since Warren’s time. Over the past several decades it has moved haltingly, but decisively, in the opposite direction of my quaint ideas about the arc of justice. What happened?amon
What I grossly underestimated was the perverse and substantial financial and political power of two of the most highly organized conservative forces in America: (1) evangelical Protestant and Catholic Churches, and their affiliated lobbying organizations, e.g. the Moral Majority, and (2) large corporations, especially in extractive industries such as oil and mining, and their lobbying arms, e.g. the American Petroleum Institute.
These powerful political lobbies, as well as several foundations and trusts, were instrumental in funding and organizing movements and groups (like the Federalist Society) that doggedly sought to reverse the progressive trend in constitutional law that served to protect many previously powerless people and the environment. In many cases, according to polling data, these lobbies did not represent the will of the large majority of the population. This legal “counterrevolution” left in tatters my earlier idyllic vision of a courageous Supreme Court leading a virtuous, ethical crusade against injustice and for the ordinary person. The “arc of history” had shifted into reverse.
Although the Court has issued dozens of disturbing rulings over the past several years, I will focus on what could be the three most egregious ones since Earl Warren retired in 1969. Disturbingly, these decisions were handed down in just the past two years. Plainly, the Supreme Court’s counterrevolutionary agenda has now gone into hyperdrive since former President Trump was able to nominate three arch-conservatives to the Court during his one term in office.
The first decision was Dobbs v. Jackson Women’s Health Organization (2022). In overturning Roe v. Wade (1973), the Court abandoned nearly a half century of precedent that a woman, within prescribed limits, had a constitutional right to an abortion. This was the first time in Court history that a fundamental constitutional right, previously established, had been taken back.
The second was West Virginia v. Environmental Protection Agency (2022), where the Court held that Congress did not grant the EPA the authority to devise emission caps in accordance with its Clean Power Plan. This case sets a precedent that will likely limit future rulings from the EPA in its efforts to protect the environment without express Congressional authorization. Moreover, this precedent may also serve to limit other federal rule-making agencies, like the Food and Drug Administration, in their efforts to protect people from harm.
The third was the Court’s recent decision in 303 Creative LLC v. Elenis (2023) that held that a web designer (Lorie Smith) could not be compelled by Colorado’s Anti-Discrimination Act to create a wedding website for a same-sex couple. In his majority opinion, Justice Gorsuch elaborated that the law could not serve to violate the designer’s beliefs (i.e. her Christian beliefs) and her First Amendment right to free speech in the design of these websites. This decision will become, in my view, a “slippery slope” that could enable businesses to discriminate against gay people, nonbelievers, and others on religious grounds or their presumed right of free speech, notwithstanding the Civil Rights Act (1964) and decades-old state public accommodation laws. More than any other decision of the past half century, this ruling could serve to unravel the legacy of the Warren Court.
For humanists, each of these decisions may set back the hopes, perhaps irreversibly, that most of us share regarding: (1) equality of the sexes, (2) a person’s right to make decisions regarding their own health, (3) protection of the environment, (4) protection of the rights of all people under the law, and (5) critically for the humanist movement itself, the separation of religion and government.
My own, perhaps idiosyncratic, view is that these reversals in constitutional rights and protections can be traced back to a collapse in societal ethics due to the corrupting influence of money in politics.
The Supreme Court decision in Citizens United v. Federal Election Commission (2010) lifted financial restrictions on corporations and other special interest groups and opened the floodgates of “dark money” into the electoral process. Shadowy organizations, many funded by undisclosed right-wing billionaires, have proliferated and have had an outsized influence on elections ever since. This unsavory combination of unlimited money and secrecy has served to further corrupt politics, just as the liberal justices who dissented in that case predicted.
Personal corruption has also apparently spread to the Supreme Court. According to recent revelations, Clarence Thomas and Samuel Alito, the two most vigorous defenders of “freedom of religion” in recent decisions, have been recipients of lavish vacations secretly financed by billionaire conservatives. Thomas and Alito have shrugged these reports off, as have their political supporters on the right. Other reports highlight lucrative book deals entered into by justices that may not have been fully disclosed in a timely manner in their required annual financial disclosure forms. Sadly, another report suggested that a liberal Justice (Sotomayor) may have used her government-paid staffers to prod colleges and libraries to buy her books.
Unsettlingly, many of us have learned through these revelations that the Supreme Court does not have a written code of ethics, unlike other state and federal courts. So what we have witnessed since the Warren era is not only the Court’s ethical failure to protect the most vulnerable people in our society and the environment, but also the personal failure of individual members to live up to the standards expected of them as the ultimate arbiters of law and justice in a democratic society.
“We the people” deserve better than this.