May 3, 2022 | Reading Time: 5 minutes
Roe, abortion and the criminal attitudes of Republican justices
They won’t be bound even to their own words.
The Supreme Court is ready to strike down Roe, according to a draft opinion leaked to Politico late last night. Regarding the 1973 decision making privacy, and therefore access to abortion, a constitutional right, Justice Samuel Alito, speaking for the majority, said: “The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history or traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.”
My initial thoughts.
Alito is making up history. Mia Brett has written extensively for the Editorial Board about the history of abortion in America. Contrary to Alito’s assertion, the common law made allowance for abortion on account of the common law recognizing that a person was not a person until the moment of “quickening” – when the baby kicks.
The supermajority is saying they are above all the things that bind us together as a society. Dedication to court precedent, respect for the law and a commitment to judicial ethics – these are for people concerned about their moral responsibility to other people, not for justices separate and unequal in the eyes of the law.
Rights are whatever the people say they are, not what a court says they are. Therefore, the Constitution is not and can never be stuck in time, treated as if it were the inerrant word of God. Abortion is not mentioned in the Constitution because it was not a big deal at the time of its drafting. And it wasn’t a big deal on account of the common law recognizing that a person isn’t a person until it kicks its mom. It became a big deal when conservatives fearing the rise of minority populations, especially newly freed slaves after the Civil War, decided white women had to birth more babies. It was at that point, under the shadow of prohibition, that democratic citizens declared it a right.
I can’t recall another time when a draft opinion from the Supreme Court was leaked to the press. It might not have ever happened before. For this reason, you’re going to hear a lot about the sacred tradition of secrecy during the time of deliberation among justices. You’re going to hear about the shame of seeing a respected institution’s reputation among the people sullied by politics due to the leak. No, nope, nuh-uh.
If the justices are shocked and struggling with issues of trust among each other, well, all I have to say is welcome to the party. Since Mitch McConnell hijacked a court seat, and certainly since Brett Kavanaugh rampaged his way to confirmation, there’s more reason to distrust the Supreme Court than one leak. That Alito is making up history is only one more reason to see the court as a political body. Sullied my ass.
Gorsuch, Kavanaugh and Barrett
Each said during their confirmation hearings that Roe is precedent or settled law or the law of the land or some such thing. That they appear to be heel-turning in this forthcoming ruling is occasion for accusing them of lying. True, but that’s not all. They are really saying they are above all the things that bind us together as a society. Dedication to precedent, respect for the law and a commitment to judicial ethics – these are for people concerned about their moral responsibility to other people, not for justices separate and unequal in the eyes of the law. They are so high up, in fact, they see no need to honor their own words. This is the lesson we should draw. Lying is only a start.
Yes, the US senator from Maine said she believed Roe would be secure after voting to confirm Kavanaugh and later Amy Coney Barrett. Yes, we should raise hell. But if you’re stuck on her hypocrisy, you’re not seeing the bigger picture. Neither Collins, nor the rest of her party, care if they are seen as hypocrites. Go ahead and see it that way! They got their justices. They got their ruling. What do liberals want Collins to say now? “My bad”? Focus instead on pressuring her and other movable Senate Republicans to pass the Women’s Health Protection Act, which puts Roe in statutory law. The House already passed it.
I agree that it’s distasteful for some Democrats to fundraise off news of the court’s imminent turnover of Roe (and Casey). But the fact of the matter is they must – if they hope to codify Roe into law. The Democrats do not have enough Democrats in the Senate. That reality is what’s held up all the other good stuff the president would like to offer us. Joe Manchin and a couple of others oppose abortion. If the Senate stays in the same after the midterms or God forbid flips, you can forget about anyone doing anything about abortion or the court.
One of the Very Serious People who, with others, constitutes the Washington press corps said last night that court-packing is now back on the agenda. Yeah, maybe. Before we start thinking about which way the backlash is going to break, we first need to see the backlash. Fact is, states like Texas are already living in a post-Roe world. I haven’t seen any backlash yet. Let’s not presume there will be one.
That said, Americans tend to vote with the past in mind, not the present or future in mind. Though you and me and everyone we know has been saying this bad thing is coming get ready, it’s typically hard for American believe it’s true until it happens. Point here is that this is reason to think a backlash will indeed materialize, as the fall of Roe has been to most people a figment of the paranoid liberal’s imagination.
Now that the Republicans have won their war against abortion, it’s natural to think their movement has run out of gas. That’s the price of success, after all. While some people will stop caring about abortion, many others still continue caring about other things, namely sex. The sanctity of life is only one part of the abortion issue. The other part is that people keep having sex in all the wrong ways, or more recently, they are changing their minds about which sex they want to be. Legally defining what a man is and what a woman is, and providing tiers of punishment for deviating from those legal definitions – this and much more we can expect from states enforcing the hierarchy of power.
The chief justice made it known he doesn’t want to overturn Roe, but he’s nevertheless willing to uphold state laws restricting it. Put another way, Roberts prefers death by a thousand cuts. He cares about the appearance of the court’s legitimacy. Well: first, legitimacy is out of his control now. The majority is ready to poleaxe Roe. Second, the court’s legitimacy has been up for debate since the Russians aided and abetted Donald Trump’s defeat of Hillary Clinton, or, depending on your view, since the court breached the federal separation of powers to determine everything in our present moment with Bush v. Gore.
When democracy is going their way, the Republicans are all for it. When democracy is not going their way, as when a Black man won the presidency, the Republicans reserve the right to adopt a criminal attitude. This attitude is writ large and small – from the dismissal of the very concept of precedent (as is the case with Alito’s opinion of Roe) to sanctioning vigilantes to terrorize women into carrying out their pregnancies. The rule of law is very important to the Republicans when it affirms the natural order of things, with white Christian men on top. Otherwise, however, the rule of law is tyrannical. The leak is evidence that that criminal attitude has risen as high as the court.
For a long time, the Democrats sought to protect individual rights and liberties using the power of the federal government. That strategy, however, required the backing of the Supreme Court. Now that the Supreme Court is beyond their reach (assuming they lack the courage to reform it outright), the Democrats must pivot back to the states, particularly state legislatures where they are the tiniest of minorities. Laws restricting abortion or banning it are going to be state laws. If the Democrats are smart, they will run a pro-privacy candidate in every race up and down the ballot for at least the next decade.
John Stoehr is the editor of the Editorial Board. He writes the daily edition. Find him @johnastoehr.