U.S. Senator Ben Cardin

Letters From Ben

October 8, 2022

Joy and Trepidation

Dear Fellow Marylanders, 

Since 1917, the Supreme Court of the United States has begun its term on the first Monday of October. This week was no exception. What made this year special was the presence of new associate justice, Ketanji Brown Jackson – the first Black woman to serve on the Court in its entire 233-year history.

Justice Jackson is one of the most qualified individuals ever nominated to this lifetime position. She also brings with her a unique perspective, not only as the first Black woman, but as the first public defender on the Supreme Court. Justice Jackson will be the first justice with any significant criminal defense experience since the retirement of Justice (and Marylander) Thurgood Marshall in 1991.

It was a joy to see Justice Jackson in her ceremonial black robe standing side-by-side with the other justices and then hear her actively participate in the oral arguments on her first day. This intense emotion and pride is matched only by the trepidation I feel about what is to come from the 6-3 conservative majority.

Justice Jackson is an inspired addition to the high court, but the conservatives, led by Clarence Thomas and bolstered by Trump appointees Gorsuch, Kavanaugh and Coney Barrett, have no incentive to reach any consensus with the progressive minority. We saw this with the Dobbs vs. Jackson ruling that obliterated 50 years of precedent by overturning Roe v. Wade, as well as Planned Parenthood v. Casey.

As I’ve said before – and will say over again – the Dobbs decision will go down as one of the worst decisions in the history of the Supreme Court. Yes, overturning precedent has its own precedent, including Brown v. Board of Education of Topeka overturning Plessy v. Ferguson’s “separate but equal” doctrine. Or Lawrence v. Texas overturned Bowers v. Hardwick to decriminalize same sex relations, among others.

Different from these historic cases, in the Dobbs decision, the Supreme Court acted to take away an individual right that it had recognized previously, leaving women today and in the future with less freedom than their mothers and grandmothers. This goes against the fundamental role of the high court, which is to expand rights. Individuals who are now facing potential health risks and life-changing options are forced to navigate a patchwork of increasingly restrictive state laws.

Sadly, the Dobbs decision was not based on a change in the law, only a change in the members of the Supreme Court.

This is the root cause of my trepidation. With an untethered conservative majority, what civil rights will be next to fall? Associate Justice Clarence Thomas’ concurrence in the Dobbs decision explicitly calls for the Court to reconsider precedent-setting cases that recognized rights to contraception, same-sex relationships and marriage equality. Translation: he would revoke these rights, too.

The first case argued before Justice Jackson was Sackett v. Environmental Protection Agency, about the proper test for determining whether wetlands are “waters of the United States.” Signed into law 50 years ago this month by Republican President Richard Nixon, the Clean Water Act upholds public health by reducing pollution to our nation’s rivers, streams, and wetlands in accordance with Congress’ intent that the landmark statute “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”

Clean, safe water is a right of every person in this country, but you would never know it from the constant attacks levied at the Clean Water Act from business interests who would prefer to dump and pollute with impunity. If the Supreme Court substantially guts the Clean Water Act, American taxpayers will lose money, and more, from increased health costs and lost resources like the Chesapeake Bay.

Free and fair elections are at stake in Moore v. Harper and Merrill v. Milligan. Both of these cases are tied to how states draw congressional districts after the decennial Census. Every 10 years, states use this data to redraw federal and state political districts to account for population changes. The Supreme Court’s 2013 Shelby County v. Holder decision gutted critical protections found in the Voting Rights Act, hamstringing the federal government’s ability to prevent discriminatory changes to state voting laws and procedures. The Shelby decision prompted a wave of voter suppression schemes that have systematically disenfranchised minority voters. Congress still need to take action to strengthen voting rights and reform the Electoral Count Act after the January 6 election.

Other cases being considered include challenges to affirmative action and anti-discrimination laws. In 303 Creative v. Elenis, the Court will decide whether state and federal public accommodation laws prohibiting discrimination can be trumped by religious beliefs in the case of services for same-sex weddings.

The more the conservative majority wades into political territory, the more our nation is at risk. Justice Kagan warned against this last month while speaking at an event at Northwestern University Law School. She said, “When courts become extensions of the political process, when people see them as extensions of the political process, when people see them as trying just to impose personal preferences on a society irrespective of the law, that’s when there’s a problem — and that’s when there ought to be a problem.”

The U.S. Constitution was established with three branches of government – legislative/Congress, executive/president, judiciary/courts – and a system of separation of powers and checks & balances to ensure no one branch could exert too much power. Currently, we have a minority in Congress deliberately blocking legislative action so that the Supreme Court can act unencumbered to decimate previous action by the Congress and executive branch – as well as the courts. This willful disregard for the rule of law is dangerous for all of us and needs to end.

I assure you that I will be keeping a close eye on the Supreme Court this session and, when Congress returns to session, I will be working with my colleagues in the Senate and the House of Representatives to restore the myriad of rights being stripped away by the Supreme Court.

Thank you for your time today. Please feel free to reply to this email with your thoughts on this and any other topic. Or use my website to share your opinion.  


Ben Cardin