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Supreme Court Preview: Equal Protection on the Docket

The exterior of the US Supreme Court Building.
In its new term, the court will hear several cases that, if overturned, could set efforts to protect vulnerable groups back decades.
The exterior of the US Supreme Court Building.
David Cole,
ACLU Legal Director
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October 3, 2022

At least three times in its history, the Supreme Court has invoked the Constitution in order to frustrate efforts to protect the vulnerable. In the infamous Dred Scott case of 1857, the court declared that the Constitution prohibited federal efforts to free slaves because doing so would violate their owners’ property rights — a decision that invalidated the Missouri Compromise and helped bring about the Civil War.

In the early twentieth century, the court repeatedly struck down state and federal protections for workers and consumers, deeming them violations of business owners’ constitutional rights of contract. The decisions were so unpopular that President Franklin Delano Roosevelt proposed packing the court. And in 2013 the court gutted the Voting Rights Act, removing its requirement that states with a history of discriminatory voter suppression submit voting rules and redistricting plans for administrative approval before implementing them. Runaway gerrymandering and voter suppression followed, eroding the integrity of our democracy.

In its new term, which begins today, the court has chosen to hear a series of cases that likewise invoke the Constitution as an obstacle to protecting equal rights, even as the country continues to reckon with its many legacies of discrimination. While the decision to overrule Roe v. Wade was, as I have written, egregiously wrong, it still allows the political branches to protect abortion. This term the court is poised to go even further, by not only eliminating court-enforced constitutional protections, but interpreting the Constitution as a barrier to other institutions’ efforts to achieve equality.

This is an excerpt from The New York Review of Books. You can read the rest of the article here.

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