GOP senators grilling Ketanji Brown Jackson this week have been critical of what they deem to be her “activist” tendencies ― while simultaneously advocating for the Supreme Court to overturn historic decisions to shift the country back decades in a more conservative direction.
At top of mind for both liberals and conservatives is Roe v. Wade, the landmark 1973 ruling that ensured women have access to abortion. It could be overturned as early as this spring, as the 6-3 conservative majority on the Supreme Court considers a Mississippi law that bans abortion at 15 weeks.
Despite all their talk against judicial activism, Republicans have made clear they’re rooting for the court to strike down Roe v. Wade. But what’s been new in the past week has been GOP senators starting to talk about other landmark cases they’d like to see overturned ― outcomes that would radically restrict Americans’ rights.
Over the weekend, Sen. Marsha Blackburn (R-Tenn.) criticized the 1965 ruling Griswold v. Connecticut, which legalized access to contraception. She called it “constitutionally unsound.”
On Tuesday, Sen. John Cornyn (R-Texas) was skeptical of Obergefell v. Hodges, the case that legalized marriage equality in 2015. He called it an “edict” and said he was uncomfortable with it because allowing same-sex people to get married was something that creates a conflict “between what people may believe as a matter of their religious doctrine or faith and what the federal government says is the law of the land.”
“That is the nature of a right,” Jackson replied. “When there is a right, it means that there are limitations on regulation, even if people are regulating pursuant to their sincerely held religious beliefs.”
And in a call with Indiana reporters on Tuesday, Sen. Mike Braun (R-Ind.) similarly expressed support for limiting the marriage rights of certain people, saying he backed the Supreme Court overturning Loving v. Virginia, the 1967 case legalizing interracial marriage.
“So you would be OK with the Supreme Court leaving the question of interracial marriage to the states?” reporter Dan Carden of The Times of Northwest Indiana asked Braun.
“Yes,” the senator replied, later adding, “If you want that diversity to shine within our federal system, there are going to be rules and proceedings that are going to be out of synch maybe with what other states would do. That’s the beauty of the system.”
Braun later walked back his comments, saying he “misunderstood a line of questioning that ended up being about interracial marriage.”
“[T]here is no question the Constitution prohibits discrimination of any kind based on race, that is not something that is even up for debate, and I condemn racism in any form, at all levels and by any states, entities, or individuals,” he said in his statement provided to HuffPost.
So to summarize: This week alone, Republicans have advocated for a country where interracial marriage, same-sex marriage, contraception access and abortion could very well be denied, depending on the state someone lives in. In other words, the federal government would not recognize a marriage between a Black woman and a white man, and they would be denied all accompanying benefits.
On Wednesday, Jackson said the Supreme Court looks at several factors when deciding whether to overturn a precedent: whether the precedent was “egregiously wrong,” whether there has been “reliance on that prior precedent,” whether the precedent has been “workable” and whether there have been new facts that have questioned the foundation the precedent was set on.
“It is important that the court take into account all of those factors because stare decisis, meaning letting the precedent stand, is a very important pillar of the rule of law,” she said.
The culture war being waged by the GOP isn’t limited to what senators are pushing for with the Supreme Court. At the state level, dozens of legislatures have introduced bills to police what teachers can say about race and history, to restrict abortion access and to target transgender children.