May 5, 2022 | Reading Time: 4 minutes

For Roe, the Democrats get mad

The Supreme Court’s legitimacy crisis starts there.

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Brett Kavanaugh’s 2018 confirmation was, for me, the end of an era. From that point onward, the Democrats could no longer trust the US Supreme Court to back federal efforts to protect and advance individual liberties. 

It used to be different. 

Despite, since the election of the first Black president, the gothic transmogrification of the GOP, the Democrats could still take comfort in knowing the law and precedent were going to protect civil rights. 

The court was a bulwark. 

As long as there was balance.

That ended with Kavanaugh. 

In Texas, the day after the leak, people spontaneously filled the streets of that state’s big cities to protest a pending ruling that will cut in half the social standing of 150 million Americans. This is Texas, mind you. Abortion is already vegetative thanks for the US Supreme Court. Behold the power of The Leak!

Of all the terrible people that the former president could have chosen to replace Justice Anthony Kennedy, Kavanaugh was the worst of the worst of them. The Republicans could have ditched him for someone better, as another former GOP president once ditched Robert Bork. But they stuck with him knowing he represented a tipping point. The confirmation two years later of Amy Coney Barrett was just gravy.

The court’s equilibrium? 


At the time, I wrote a series of articles strongly urging the Democrats to attack the court’s legitimacy. I said anyone who’s the beneficiary of a lying, cheating, philandering sadist who makes common cause with America’s enemies is illegitimate. Ditto for their judicial opinions. 

I was wrong, though.

In retrospect, I realize the Democrats were still gripped by the idea – by the myth! – of the court bending the arc of the universe toward justice. They were still enthralled by the achievements of the Warren and Burger courts, the former deciding Brown, the latter deciding Roe.

That’s not all.

Though they feared the worst, the Democrats, I suspect, might not have believed the worst would happen. After all, the Republicans say a lot of things they don’t mean. Indeed, everything they say is in bad faith. So it’s understandable that it took a leaked draft opinion to snap them out of their torpor. Same goes for normal Democratic voters.

In Texas, the day after the leak, people spontaneously filled the streets of that state’s big cities to protest a pending ruling that will cut in half the social standing of 150 million Americans. This is Texas, mind you.

Abortion is already vegetative thanks for the US Supreme Court.

Behold the power of The Leak!

The Democratic leadership is feeling it. I mean, really feeling it. In fact, I don’t think I’ve ever seen US Senator Chuck Schumer get mad. Just the opposite. The Senate majority leader can be trusted to stop short of expressing Democrats’ full anger over Republican transgressions. 

But Tuesday, the day after the leak broke, he was smoldering.

Schumer accused three justices confirmed under Trump of lying to the Senate Judiciary Committee. They had said Roe was settled, “the law of the land.” Schumer accused them of lying on the floor of the Senate! 

He laid blame at the feet of “every Republican senator” who supported the plan in 2016 to steal a justice from Barack Obama, and who later voted for Neil Gorsuch, Kavanaugh and Barrett. Schumer said GOP senators “will now have to explain themselves to the American people.”

Several of these conservative justices who are in no way accountable to the American people have lied to the US Senate, ripped up the Constitution and defiled both precedent and the Supreme Court’s reputation, all at the expense of tens of millions of women who could soon be stripped of their bodily autonomy and the constitutional rights they’ve relied on for over half a century. …

A vote on this legislation is not an abstract exercise. This is as urgent and real as it gets. We will vote to protect a woman’s right to choose and every American is going to see which side every senator stands (my italics).

Schumer wasn’t alone. 

The Democrats found themselves singing in unison. They raised the allegation of lying to such a height that even NPR, the milquetoastiest of milquetoast news media, ran a long story on “what conservative justices said — and didn’t say — about Roe at their confirmations.” 

This is what happens when Democrats speak as one.

The Republicans are playing defense in a few ways.

First, they don’t want to comment on whether the justices lied. That would risk adding to the court’s growing public image of illegitimacy. They need Americans to believe the court is legit. If they don’t, a GOP future depending on the court is in trouble. To protect its reputation, the Republicans are pretending that the leak tarnished its reputation.

But the leak has put the court’s legitimacy out of their reach.

Though Schumer pulled his punches in saying three GOP justices have “defiled … the Supreme Court’s reputation,” others inside and outside the Democratic Party are coming out hard using the Big I-Word.

US Senator Ed Markey of Massachusetts: “We got a sneak preview of what a stolen, illegitimate, far-right Supreme Court majority appears poised to do: Dismantle abortion rights in the United States.”

MSNBC’s Joe Scarborough on Tuesday: “Obviously, the perception for 70 percent of Americans waking up this morning is going to be, most likely, that this is an illegitimate decision by an illegitimate court.”

The Times’ editorial writer Jesse Wegman: “I’ll tell you what has led me to feel that this is an illegitimate court is what Senate Republicans led by Mitch McConnell have done over the last six years to stack this court explicitly for the purpose of overturning Roe v. Wade.”

The court is in a pickle. 

If it strikes Roe, as everyone expects, it will confirm, deepen and expand the current allegations against it. If it reverses course, and does not strike down Roe, it will arouse the fury of Republicans whose expectations of the court are now sky high thanks to the leak. It will appear to anti-abortionists that the court is caving to their enemies.

I was wrong about why the court should be seen as illegitimate. People don’t care about Russia’s sabotage. They care about the revocation of civil rights and civil liberties taken for granted after half a century.

Perhaps that’s because Russian sabotage is still “an abstract exercise” as Schumer might have said. Protecting Roe? That’s as “real as it gets.”

John Stoehr is the editor of the Editorial Board. He writes the daily edition. Find him @johnastoehr.

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