The "Dead Hand" on the Supreme Court

The supreme court has set itself on a collision course with the forces of change in an inexorably diversifying America.

The six Republican-appointed Supreme Court justices have been nominated and confirmed by GOP presidents and senators representing the voters least exposed, and often most hostile, to the demographic and cultural changes remaking 21st-century American life. Now the GOP Court majority is moving at an accelerating pace to impose that coalition’s preferences on issues such as abortion, voting rights, and affirmative action.

On all of these fronts, and others, the Republican justices are siding with what America has been—a mostly white, Christian, and heavily rural nation—over the urbanized, racially and religiously diverse country America is becoming.

“The Court seems to be pulling the United States back into a prior era without regard for changing notions and understandings of equity, equality, and fairness,” Sarah Warbelow, the legal director for the Human Rights Campaign, which advocates for LGBTQ rights, told me. “It is about almost trying to maintain a 1940s, 1950s view of what the United States is and what its obligations are to its citizens.”

In this backward-facing crusade, the majority may be risking the kind of political explosion that rocked the Court at two pivotal earlier moments in American history, the 1850s and 1930s. In each of those decades, a Supreme Court that also was nominated and confirmed primarily by a political coalition reflecting an earlier majority similarly positioned itself as a bulwark against the preferences of the emerging America. In the 1850s, the Court tried to block the new Republican Party’s agenda to stop the spread of slavery just as the Abraham Lincoln–era GOP was establishing itself as the dominant political force in the free states; in the 1930s, the Court sought to derail newly elected President Franklin D. Roosevelt’s agenda to manage the economy, regulate business, and expand the social safety net just as his New Deal electoral coalition was beginning decades of electoral dominance.