In his 2022 majority opinion in Dobbs v. Jackson Women’s Health, Justice Samuel Alito went to considerable lengths to show that enabling states to outlaw abortion was not a slippery slope to undermining other human rights. Alito claimed that abortion is a “unique act” because of its “potential life,” distinguishing it from other court-established rights such as birth control or same-sex marriage, and that Dobbs “does not undermine” other rights “in any way.”
Almost no one believed him at the time, in part because Republican claims to be “pro-life” are a weak pretext for an authoritarian obsession with regulating people’s sexual lives. It didn’t help that Justice Clarence Thomas used his concurrence in Dobbs to urge Republican lawmakers to pursue additional rights. He contended that “in future cases, we should reconsider all of this Court’s” past rulings legalizing contraception and homosexual intercourse, as well as the decision to allow same-sex marriage.
Even Alito’s most ardent critics overestimated the extent to which red states would interpret Dobbs as the Supreme Court’s open invitation to violate any human right they desire. Just this week, for example, the Supreme Court declined to halt two actions by the Texas government that, by any standard, should be major violations of basic constitutional safeguards.
Late last week, the Supreme Court upheld West Texas A&M University’s ban on drag events staged by on-campus clubs, despite decades of First Amendment precedent. This week, the Supreme Court did it again, permitting Texas to proceed with a manifestly illegal assertion that state law outweighs federal power over immigration. To be clear, neither decision determines whether Texas can openly violate the constitutional order. But even allowing it to go this far demonstrates the Supreme Court’s desire to support Gov. Greg Abbott, R-Texas, in his efforts to transform his state into a far-right dictatorship.
The drag-show case is the easiest of the two in terms of the blatant violation of the First Amendment. A student club at West Texas A&M wanted to hold what the lawyers describe as “a PG-13 performance” featuring mostly- LGBT drag performers. Walter Wendler, the school’s far-right president, has canceled all drag events on campus, regardless of content. Abbott’s close partner, the infamously corrupt state attorney general Ken Paxton, has rallied the state government to support Wendler’s brazen violation of students’ free expression rights.
Both Wendler and Paxton are arguing with extreme bad faith. Wendler erroneously accuses drag performers of being “misogynist” and “portraying women as objects.” He has not, however, prohibited beauty pageants starring cis women, despite their nearly identical substance. Paxton asserts that the prohibition of drag is necessary to “protect children.” To be clear, college students are adults. Even if children go with their parents, Paxton’s reasoning is within reach. Paxton does not support a ban on beauty pageants or dancing contests, which have the same amount of sexual display as a drag show.
No, this is about prejudice against LGBTQ individuals. Wendel previously lost his job because he refused to provide same-sex couples with the same employee benefits as straight couples. He has also stated that sex should only occur between heterosexual married couples who do not use contraception. Paxton, however, has previously opposed same-sex marriage and stated that Pride Week is “immoral” and should be “illegal.”
Until the Supreme Court makes a final decision on drag bans, the current campus ban will stay in place. This is ridiculous, according to legal reporter Ian Millhiser of Vox, because it is such a clear example of free expression. Millhiser asserts that upholding the ban, even temporarily, would prevent college students in North Texas from exercising their First Amendment rights indefinitely.
The immigration decision is significantly more complicated, but it essentially amounts to the same thing. The Supreme Court refused to suspend, even temporarily, a Texas statute that clearly violates the Constitution and court precedent. Abbott recently signed legislation granting state law enforcement the authority to detain and potentially deport immigrants, despite the fact that all of US legal history places the federal government entirely in charge of enforcing immigration laws. Abbott’s law is so outrageous that even the most cynical observers of the far-right Supreme Court doubt that they will let Texas preserve it. That’s why it was surprising on Tuesday when the Supreme Court permitted the law to go into force while it was being discussed in court.
Legal expert Mark Joseph Stern digs through the dense legal machinations and ultimately comes down to this: Republican-appointed justices on the Supreme Court and the Fifth Circuit Appeals Court recognize that the Texas statute is unconstitutional. But they are partisan hacks who refuse to stop a Republican-run state from drowning child refugees. According to Stern, they’ve been playing procedural games “to shield Texas’ law from Supreme Court review indefinitely.”
To make matters worse, the Texas law targets anyone police officers want to harass, not just undocumented migrants. “The Texas measure also allows state law enforcement officers to stop and detain anyone they ‘suspect’ of having entered Texas unlawfully,” Stern said. Do you have a Spanish last name? Darker skin? Are the officers simply bored and looking to bully someone? All of these can now be reasons they “suspect” a person is undocumented, providing a pretext to detain them.
“Could I be detained because I’m brown, speak Spanish fluently, and look like someone who crossed into Texas illegally?” Jorge Dominguez, a US citizen who works as an immigration attorney in El Paso, Texas, told The Washington Post.
To avoid getting too technical, there was enough wiggle room for a whole other—aand seemingly less radical—ggroup of Fifth Circuit judges to intervene and overturn the statute. This is a relief, yet it does not change the fundamental outlines of the situation. The Supreme Court was eager to let Texas begin enforcing a statute they knew couldn’t be defended, and they were employing “shameless gamesmanship” as a legal weapon to do it. Worse, Republicans in other states are increasingly optimistic that the court will eventually overturn the constitution and provide states with the right to do so. According to the New York Times, Iowa has already enacted a similar bill, and at least six other Republican states are considering doing the same.
Even if the drag ban and immigration legislation are ultimately overturned, all of this legal maneuvering sends a message to Texas and the red states: the Supreme Court sympathizes with their white nationalist and theocratic tendencies. Even when they are legally unable to support Republican state leaders’ authoritarian tendencies, they will do all in their power to assist those politicians in gaining as much authority as possible. This also implies, as with Dobbs, that the court will push the definition of “constitutional” to its limits in order to allow Republicans to assault fundamental human rights. As a result, states may soon accept Thomas’ invitation to reconsider whether birth control or same-sex partnerships are human rights.
