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Opinion: We must unrig the Supreme Court to protect the rights of all Americans

A case involving an Indiana man who suffered from dementia could have far-reaching consequences.

By TAI Contributor - February 13, 2023
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Supreme Court
A general view of the U.S. Supreme Court, in Washington, D.C., on Friday, January 27, 2023. (Graeme Sloan/Sipa USA)(Sipa via AP Images)

Here they go again. The radical conservatives in control of the Supreme Court are poised to take another long-standing, fundamental right away from Americans.

This court is no stranger to stripping rights and protections away from marginalized people. Last June, it gutted the fundamental right to bodily autonomy for women, trans, and nonbinary people. It has made it more difficult for farm workers to join unions. It has systematically dismantled the right to vote in its effort to undermine our democracy.

In a new case this term, the court is once again targeting some of the most marginalized people in our country: older Americans and those with disabilities, people with little or no income and assets, and those who must live in nursing homes to survive.

Nursing home residents are in the direct line of fire. A sweeping ruling from the court could also harm low-income Americans and dismantle enforcement mechanisms for key social programs across the country.

The case is Health and Hospital Corp. of Marion County, Indiana v. Talevski. It involves the late Gorgi Talevski, who suffered from dementia at the end of his life. Thanks to Medicaid, he lived his final days in a nursing home owned by Marion County, Indiana. Unfortunately, according to his loved ones, he was needlessly restrained with drugs and mistreated in other ways at that facility, in violation of the Federal Nursing Home Reform Act.

Mr. Talevski’s family sued the municipal health corporation, which appealed the case to the Supreme Court. In doing so, the defendants are seeking to get the radicals in robes to overturn a decades-old precedent that secures the right to a day in court for Medicaid and other social services enrollees. The Supreme Court took up the appeal despite the clear and ample legal precedent that has been set by lower courts about how to interpret the law in these cases.

This case could have far-reaching consequences if the court decides to overturn the private right of action that allows Medicaid and other social services enrollees to sue in these cases. A broad ruling could affect not just people in nursing homes and those covered by Medicaid, but also those receiving other federal benefits. It could leave millions of Americans who are mistreated or denied benefits with no course of legal redress.

Ending the private right of action for such cases would virtually eliminate remedies for enrollees and would give states and other actors the green light to infringe on rights with impunity.

We will find out what the Supreme Court decides later in the year. A few of the conservative justices seemed to be searching for a narrower way of ruling against Mr. Talevski. But that should provide small comfort — and here’s why.

Donald Trump and Mitch McConnell successfully packed the Supreme Court. McConnell refused to even hold a hearing when President Barack Obama nominated Merrick Garland to the bench in 2016, shrinking the court to eight seats for more than a year and filling the vacant seat instead with Neil Gorsuch, nominated by Donald Trump. McConnell then rushed through the confirmation of Amy Coney Barrett, nominated by Trump, in 2020, despite the fact that 63 million people had already cast ballots in the election that would ultimately unseat Trump. Those two stolen seats handed political conservatives a supermajority on the court for the foreseeable future.

If this is not addressed, the court’s right-wing activists in black robes will have decades to undermine our fundamental rights. Even if the American people can fend off the threats posed by this case, more threats are sure to come.

The only long-term solution is to rebalance the court and limit future rigging of the bench by those who don’t respect our system of checks and balances or the rule of law. To do so, we must expand the number of justices to offset the impact of the stolen seats. To limit future mischief, term limits, and regularized appointments should be implemented.

Only by unrigging the Supreme Court can Americans expect any hope of attaining equal justice under the law. Only by unrigging the Supreme Court can we ensure that our most basic fundamental rights are protected.

Nancy Altman, the co-founder and president of Social Security Works and chair of the Strengthen Social Security coalition, has a 45-year background in the areas of Social Security and private pensions. She was on the faculty of Harvard University’s Kennedy School of Government and taught retirement income courses at the Harvard Law School. Prior to that, she served as Alan Greenspan’s assistant in his position as chairman of the so-called Greenspan Commission, the bipartisan commission whose recommendations formed the basis of the Social Security Amendments of 1983. Nancy is the author or co-author of four books on Social Security, as well as numerous professional and popular articles on retirement income.

Sarah Lipton-Lubet is the president of Take Back the Court, which works to inform the public about the danger that the Supreme Court poses to democracy, and about the viability of court expansion — adding four seats to the court — as the only strategy that will rebalance the court after its 2016 theft. For the better part of the last two decades, Sarah has been an advocate for reproductive freedom, gender equity, and progressive change, most recently as vice president for reproductive health and rights at the National Partnership for Women & Families. She served as TBTC’s executive director before becoming president in January 2023.


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