Tuesday, May 3, 2022

The Only Way to Fight Back Against a Radicalized Supreme Court

My head is swirling with reactions to the leaked draft of Justice Samuel Alito's ruling that, if legitimate, with overturn Roe vs. Wade. While it's likely that some of the wording might get changed before a final version is released by the court, I don't think there's much doubt that four justices are prepared to join Alito's draft. 

One of my reactions is to note that a lot of people are suggesting that those of us who are pro-choice must organize to protect women's reproductive freedom. But if Alito's draft - which specifically sends this issue back to the states - is legitimate, it's too late for that, as the Guttmacher Institute previously pointed out.

If Roe were overturned or fundamentally weakened, 22 states have laws or constitutional amendments already in place that would make them certain to attempt to ban abortion as quickly as possible...

By the time the Supreme Court hears oral arguments in the Mississippi case, there will be nine states in this group with an abortion ban still on the books from before Roe v. Wade, 13 states with a trigger ban tied to Roe being overturned, five states with a near-total abortion ban enacted after Roe, 11 states with a six-week ban that is not in effect and one state (Texas) with a six-week ban that is in effect, one state with an eight-week ban that is not in effect and four states whose constitutions specifically bar a right to abortion. Some states have multiple types of bans in place.

In those 22 states, it would take affirmative legislation to strike down those bans in order to protect a woman's right to chose. Given that they are all either red or swing states, that isn't going to happen. So if you live in one of them, women's reproductive rights will be gone once Alito's opinion is released. There are an additional four states that, given their political composition and history, are likely to ban abortion as soon as possible.

So to be completely clear, we will NOT be in a position to "protect" women's reproductive rights, but to fight to get them back. That is a monumental shift that we all have to grapple with. 

Given the current make-up of the Supreme Court with its lifetime appointments, the place to fight back won't be in the courts. That is why this part of President Biden's reaction to the leaked draft is so important:
[I]f the Court does overturn Roe, it will fall on our nation’s elected officials at all levels of government to protect a woman’s right to choose. And it will fall on voters to elect pro-choice officials this November. At the federal level, we will need more pro-choice Senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law.

To bolster that argument, it is important to remember how we got here. Ever since Barack Obama was elected president, Mitch McConnell's plan has been to abuse the filibuster to obstruct the passage of legislation. Even when Republicans were in the majority and Trump was president, McConnell was content to neuter congress on pretty much everything other than tax cuts for his wealthy donors.

Meanwhile, the Republican leader of the senate set out to stack the courts. We all watched as he cynically refused to even hold hearings (much less a vote) on Obama's nominee. That wasn't because of some issue with Merrick Garland. Republicans like the late Senator Orrin Hatch had previously claimed that Garland would be a consensus nominee before Obama chose him. Instead, it was a blatant attempt to stack the court with extremist conservatives, which McConnell went on to claim as his "most consequential political accomplishment."

What we're now faced with is a neutered congress and an empowered Supreme Court. That is exactly what McConnell's plan was all about and we're now experiencing the disastrous consequences of that strategy.

Given that it will takes years (and possibly even decades) to rebalance the court, the one way to fight back is to ensure that pro-choice Democrats keep their majority in the House and make significant gains in the Senate. Since gaining a 67-seat majority is unlikely, the goal should be to elect Democrats who are willing to overturn the filibuster and pass legislation that restores women's reproductive freedom. 

The fact is that every election in every state will be critical, including those for governor and state legislators. That is because Alito's draft makes it clear that overturning Roe is just the beginning of what this Supreme Court will attempt to do. He claims that, while the Due Process Clause in the 14th Amendment (on which the Roe decision was based) might guarantee some rights that aren't mentioned explicitly in Constitution, such rights have to be "deeply rooted in this nation's history and tradition." That is a terrifying position.

In other words, all of the blood, sweat, and tears that have been spilled over the years in order to build "a more perfect union" could be sent down the drain by this group of extremists on the Supreme Court. That is the gauntlet that has been thrown down by the radical right at this moment in time. It is what will be on the ballot in every election going forward - starting with this November - as long as they hold a solid majority on the Supreme Court.

The Republican reaction to this news provides a slight glimmer of hope. Rather than celebrating the seeming demise of Roe, they are entirely focused on ginning up outrage over the leak of Alito's draft. In other words, they're signaling that, coming six months prior to the midterms, this ruling is very likely to upset the dynamics that had them counting the days until they won majorities. It is now incumbent on us to ensure that their newly-found concern is justified.


  1. Biden's response was exemplary, although I'm not convinced we've a solution at any level or in any branch of government for the foreseeable future. The same awful Republican court could strike down a federal law as well.

    We should be angry, and I'm sure most of us are. I read an article today on the lesson as to give up liberal faith in the court. But that misses the point. It's not that the institution is flawed, no more than that the power of Republicans in Congress to block almost any initiative or the power of the last president to act in ways that led to the long persistence of Covid-19 and supported Russia, with the added bitter irony that now these have caused many, especially young people, to lose enthusiasm for Biden. By this reasoning, democracy is itself a lousy system.

    The only hope is in anger and in choosing sides. That means anger at Republicans, but of course also at any Democrat who thought Clinton was a Goldwater girl to this day and no worse than Trump. My anger grows each and every day.

  2. If I may add one other direction, my first thought was that this was a slippery slope toward control of the bedroom in every way. Here I'd been dismissing talk of controlling women as alarmist, although I still don't like Atwood's fiction, but the threat's do keep growing. Now, Kevin Drum raises an interesting point. He notes that Alito went out of his way to distance himself from the slippery slope, saying that rulings on, say, contraception or gay marriage aren't as vulnerable because they don't involve the lives of the unborn.

    Kevin could be wrong: I still fear that assaults on "unemerated rights," meaning reasonable interpretations of due process, are a cover for restoring the terrible hierarchies of an older time, including racism and sexism. Still, he may be helping if he is calling attention to one particular hierarchy, of an establishment of religion. So much of this court's agenda and the cases at the expense of black Americans and gays turns on granting a minority of Christians the right to deprive those others of their liberties. When the court sanctions, as a specially protected case, making life begin at conception, if of course threatens woman and families, but it should also anger Jews like myself and others. Since when did I make a minority sect 's gut reactions the law of the land?


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