After listening to the Supreme Court majority’s questions as they heard the oral arguments in the Dobbs v. Jackson Women’s Health Organization (Mississippi) case last week, my concerns extend far beyond abortion.
My greatest concern is that this Court majority (Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett) seems willing to ignore precedent. If precedent by the highest Court in the land is meaningless, which of our rights will the Court strike down next?
I’m not sure why the mainstream media refers to these justices as “conservative.” There was nothing conservative about permitting the Texas law to stand.
That law went well beyond making most abortions illegal. It also made abortions after seven weeks a felony and “deputized” any party who opted to take the law into his/her own hands to enforce the ban on abortions—and to profit from doing so.
Allowing a state to create a class of what’s been called “vigilante plaintiffs” doesn’t sound conservative to me.
Court-watchers said then that the Mississippi law would fully reveal the Court’s outright attack against Roe v. Wade.
Never mind that Roe has been settled law in the US for nearly fifty years, that it became law in a 7-2 decision upheld by Justices appointed by Republicans, and that polls indicate consistent support for Roe.
In November, a Quinnipiac poll found 63% support; a Washington Post poll found 60% in favor of retaining the law.
In their questions about the Mississippi law, the six Justices gave every indication that they’re looking for a way to overturn Roe—without making it appear that they’re overturning Roe. Why?
Because they know that doing so places them far outside the mainstream of American opinion. And, after saying during their confirmation hearings that they wouldn’t overturn precedents, they’re a bit touchy about being shown to so blatantly overturn a precedent. (Update: they didn’t say they wouldn’t overturn precedents; they said Roe was a precedent that had been upheld, an apparently deliberate attempt to mislead.)
In a brilliant piece in The New York Times, legal journalist Linda Greenhouse gives examples of the “gaslighting” the Justices employed in the questions and points they proffered. This essay is well worth reading.
The Court’s newest member, Amy Coney Barrett, asked a question that showed how shockingly out of touch these people are.
Why was abortion necessary, she asked, when women have the “safe haven” option to give up their newborn babies for adoption—anonymously and without penalties? Her question was intended to minimize the “burdens of parenting” issues raised in Roe.
Why, indeed? The attorney representing the women’s health clinic told of the burdens of pregnancy. They are many, but most significantly: in Mississippi, it is 75 times more dangerous to give birth than to have an abortion—highest for women of color.
In fact, the US has the highest rate of maternal deaths of any Western country. That is a national disgrace that must be addressed.
So the justices who seem eager to drastically change settled law appear to be basing their decisions on neither law nor any interest or understanding of the implications of their actions.
No wonder Justice Sonia Sotomayor struck a nerve when she asked:
“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible.”
Regardless of what this Court decides, abortions will not end in the US. What will end are medically safe, legal abortions.
Once again, women of means will be able to secure the medical help they need, privately, while poor women will be condemned either to dangerous procedures that will threaten their health and their very lives, or to greater poverty by being forced to carry to term a child they can’t take care of.
“Pro-life,” many have pointed out, ends at childbirth.
And significantly, the Court majority’s likely ruling will turn these decisions to the states, where more than twenty states have already passed “trigger laws” to overturn Roe once the court rules.
So we will see a federal law protecting a woman’s autonomy devolve into an issue of states rights. This is a highly dangerous precedent.
As US Solicitor General Elizabeth Prelogar responded when Justice Kavanaugh suggested that the Court might just regard “neutrality” as its proper approach to this controversial issue:
“The nature of fundamental rights is that it’s not left up to state legislatures to decide whether to honor them.”
Despite how difficult the issue of abortion is, I’ve always felt its occurrence and the divisiveness it causes could be reduced if our institutions gave greater attention to prevention—through the availability of safe, inexpensive, reliable birth control.
But what if the Court majority strikes down certain methods of birth control?
And will the assault on voting rights that Justice Roberts began become intensified? Very likely.
What about Brown v. Board of Education? De facto segregation is increasingly permeating American schools. Will the Court find a rationale for locking in that trend, thereby worsening it?
What about gay marriage? Interracial marriage? Adoption laws? Health, occupational, and environmental regulations? The right to peaceful assembly? Freedom of the press?
This is not an exhaustive list. It appears we’ve reached a tipping point.
One important question is whether the Court majority’s extremely political stances will have/is having a chilling effect on individuals, organizations, and government entities’ willingness to take their grievances to court on any level–for fear of the outcome if their case reaches the highest court in the land?
The half-century since Roe’s passage has seen some important legislation expanding the rights of Americans. This Court seems determined to contract those rights.
What Can We Do?
Certainly not wait a generation. I’ve written about the forces that have brought us to this point over the decades. You can read those posts here and here.
Robert Hubbell, whose “Today’s Edition” newsletter is another worthwhile resource available on Substack, has some suggestions. Though Hubbell advocates expanding the Court, he realizes the necessary legislation may not pass for a while. But he references a 1937 episode when the “threat of expansion was enough to chasten a reactionary majority” (https://www.history.com/this-day-in-history/roosevelt-announces-court-packing-plan.)
He encourages us to call Senate Majority Leader Chuck Schumer and our own Senators, urging them to cosponsor and pass the Judiciary Act (S.1141), a bill now on the Senate docket, which would increase the number of Supreme Court Justices from 9 to 13.
Hubbell writes:
“Supreme Court Justices do not live in a vacuum. The media will report a groundswell of support for enlarging the Court. Even if it does not happen immediately, the threat of expansion may be enough to slow or stop the reactionary majority’s religious and social agenda.”
With regard to precedent, Hubbell has also pointed out that when Mitch McConnell was Senate Majority Leader in 2016, he effectively reduced the number of Supreme Court Justices to 8 by refusing to allow a vote—or even hearings—on President Obama’s nominee, Merrick Garland. McConnell claimed it was too close to the Presidential election that was, in fact, nine months away.
Then, in 2020, McConnell increased the number to 9 by rushing through Amy Coney Barrett’s nomination on October 27, just weeks before the Presidential election.
This Supreme Court majority is out of sync with the majority of Americans. We must do what we can to prevent the wholesale turning back of the clock on our rights.
Your thoughts?
Annie
annieasksyou... 
I don’t understand how 13 Justices would be better than nine. In the long run, with nominations and confirmations as they are, it would likely do nothing to make the court less partisan. In the short term, any justices the President might nominate would be unlikely to be confirmed.
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The thinking behind the number 13 is that there are 13 circuit courts. But that’s also the number needed to create a liberal majority, so you’re right about the partisanship.
I came across this article, written by two law professors, advocating 15 justices. They say that number is needed to do the Court’s work, which hasn’t been happening as it should to date.
https://news.bloomberglaw.com/us-law-week/the-supreme-court-needs-15-justices.
Hubbell and others are realistic about court changes but feel it’s healthy to have this threat in the zeitgeist. I agree.
In the short run, two words: Stephen Breyer. There is pressure on him to resign while we still have a Democratic majority in House and Senate. His successor could be confirmed by a simple majority. The thinking is that as bad as 6-3 balance is, 7-2 would be worse—for longer. I agree with that too.
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My thoughts? All Republicans, be they in the Supreme Court, the Senate, the House of Representatives, in governors’ mansions, and state legislatures all across this country, are out of sync with the majority of Americans. And they are taking America down.
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Alas, I agree, but I think I’m a bit more sanguine than you are that we can hold off the disaster. I take heart that Stacey Abrams and Beto O’Rourke and others are willing to subject themselves to the grueling battles ahead, knowing what they face.
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And with GOP gerrymandering in place in Texas and Georgia, it’s going to be an uphill battle.
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Right. We sure do need passage of those
voting rights bills…
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This is McConnell’s Court. He has been the moving force behind the last three reactionary justices. He used his power to manipulate the composition of the court. Every authoritarian regime knows that you need to do two things to solidify power. First, eliminate those who may vote against you. By a systematic disenfranchisement. Then take control of the counting process. Second, take over the judicial system. That guarantees that whatever you do, it will be deemed “legal” by the courts. Even if , by some chance, the moderate/liberal Congress passes decent laws, the reactionary court can simply decide they are unconstitutional.
McConnell, elected by 1.2 million people in Kentucky, has effectively taken control of the future of the 330 million people who reside in this republic. The voter suppression laws will stand. The anti-women laws will stand. The coming anti-gay, anti-trans laws will stand. And don’t be surprised if race laws re-emerge in the “old South”. States will be given free reign in these areas. Conversely, states that attempt gun control laws will see those overturned. The concept of “states rights” is very selective.
I don’t make these statements lightly. I taught history and government for over 30 years. The playbook for authoritarians is as old as Julius Caesar. And as modern as the German Republic of the 20th century. When we discussed the US Constitution in class I made one important point to my students. What does the Constitution say? What does it mean? Answer: Whatever the current Supreme Court decides it means. The current court is not conservative, it is dominated by reactionaries. The authoritarians , like McConnell got exactly what they wanted. History tells us that they will not hesitate to act.
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I don’t disagree with anything you’ve said, Joseph. I even cut a segment I had on gun safety—looking toward the Court’s inevitable striking down of NY’s sensible law requiring people to cite a reason they need to carry a gun outside the home. But I am unwilling to consider this noble experiment a failure yet. I’m as worried as you are. But I’m still seeking solutions and positive steps.
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Congress, which can act when there is a will, is said to be considering revising the process for counting electoral votes. This might succeed, as many representatives might blanch at the prospect of Kamala Harris exercising the powers that Mike Pence was so recently urged to assert. We have seen danger, but even that wasn’t enough to overcome the deadlock in Congress preventing more responsible action.
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You raise an interesting point, whungerford. Since so much of the awfulness is traceable to Republicans’ publicly accusing the Democrats of precisely what they themselves are doing (eg, voter fraud, “stealing” elections), perhaps their fears about Kamala being in Mike Pence’s position would propel them to vote to improve and safeguard the vote-counting process. If only…
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It’s ridiculous how repressive many people are. Sigh, sigh, sigh.
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Yeah; I need some happy walks at the Cape, Neil.
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It’s beyond distressing that allegedly “pro-life” justices do so little for the living. They do nothing to interfere with gun ownership, while interfering with a woman’s right to choose abortion even if the pregnancy will endanger her life. Indeed, most of the folks in the anti-abortion crowd (even the female ones) are anti-women. They want men at the helm and women in the background as perpetual homemakers and baby producers.
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It is a simple attempt to impose religious bigotry.
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I question the use of the word “simple,” Joseph. I think it’s important to acknowledge that some people believe a fetus is a person and view abortion as murder. The larger issue to me is that we are a pluralistic society in which there should be separation of church and state—and that though abortions can be deemed illegal, they can’t be stopped. No one is forced to have an abortion, and no one should be forced by the state to endure an unwanted pregnancy and to give birth to an unwanted child. “Pro-life” people rarely talk about all the children in foster care, etc.
I do think a greater emphasis on birth control—and greater availability of reliable methods—is an unaddressed societal need.
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I’m not sure if “pro-life” is religion, heartfelt belief, or partisan politics.
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I saw an interview with Frank Schaeffer, an author and former Evangelical who has apologized for the harm he and his father, Francis Schaefer, had done years ago in pressing for women’s subservience. He pointed out that Evangelicals didn’t oppose abortion early on; their opposition came about to keep women as you describe them, Gail.
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What I find interesting is how both Barrett and Kavanagh both lied/were evasive in their election hearings, and yet now that they are judges, they appear to have changed their views. I say “appears” as we don’t yet have their decision just suggestions of it – which I read somewhere might take until next summer? Not sure if that is correct? So, that leaves me with the question – what does that say about their lack of integrity? I never did think either one of them were Supreme Court judge material.
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The decision is expected by the summer, Joni. But since everything about this court appears blatantly political—and Republicans are skittish that an energized pro-choice base could disrupt their carefully manipulated electoral advantages in 2022–I wonder if they’ll deliver it sooner.
Evasiveness has unfortunately become routine in Supreme Court confirmation hearings. But Kavanaugh sure seems to have lied more than once (he also yelled and cried, proving his abysmal lack of judicial temperament). And I think they both suggested a respect for precedent that their questions in these hearings make suspect. Barrett had previously written her views on Roe, so she should have recused herself.
I recommend Linda Greenhouse’s piece on gaslighting, which shows a remarkable willingness to stray from and misinterpret the law.
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Thanks Annie! I did go back and read the gaslighting article just now – it was very good.
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I think it’s an unholy mishmash, whungerford.
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Disgusting and even worse: terrifying. Thanks for laying it all out and to all your readers for their thoughtful comments. It’s always about the politics, which isn’t supposed to be the way it works.
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Thank you, Denise. I remember a time when Supreme Court justices who were Republicans appeared far more likely to at least factor the law into their decision-making than this bunch does. As Joseph points out, though, the justices’ own views were probably never absent from their decision-making.
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To answer your question they will never stop.
To actually, effectivly, decide the establishment clause in the Constitition is unconstititional takes an shocking amount of chutzpah , plus an unbeleivable amount of hypocricy from a Court that proclaims their adherence to the original text of the Constitition, “Originalism”.
A frightening case coming down that you haven’t mentioned is the gun laws where the dishonorable scotus 6 may sweep away all gun laws and declare states and municipalities must adhere to guns everywhere all the time, open carryor concealed, with no restrictions or licenseing law. Ammosexuals challenging NY’s licenseing regime for concealed carry permits.
The insidious part of this is if the sanes ever do get the Scotus majority they will have to throw the concept of Precedent ( stare decisis) out the window to correct the partisan rulings.
Heller, ruling on VRA, Texas abortion law, Campaign finance the list goes on and on.
That will give the thuglicans a cudgel, incorrectly but they never care, to claim Court bringing sanity back to Jurisprudence are nothing but partisan for ignoring the same principle of stare decisis they have shredded.
This group is rewriting the constition before our eye no concern of effect on the people, justice for the people, or laws written by the people.
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This partisan dominance on thuglican judges goes back to at least 2000 Gore v.Bush when thuglicans would not recuse for conspicious conflicts of interest.
1) Thomas’s wife working indirectly for bush campaign as an officer in a right wing PAC.
2) scalia’s son working for Bush and member of law firm representing the twit. His son got rewarded with a Federal job during the regime of the twit.
3) Sandra Day oconnor, at a bush sponsored gathering on election night, being quoted to the effect that she wanted to retire but if Gore won she would have to stay on the court until next thuglican stole an election.
That was from 2000.
Then Kennedy conditioning his retirement upon junior rapist kavanague wa appointed in his place. That was a direct challenge to the independence of the court when retiring judges can effectively anoint their successors.
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Thanks for adding this historical info, anynameleft. The year 2000 was also when Jeb Bush, in concert with Katherine Harris, his publicly partisan Secretary of State, delivered the state of Florida, and thus the White House, to his brother George by a 0.009% margin of victory, with lingering questions about miscast votes in Palm Beach County.
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Yes. And to add to that. The 5 GOP “states rights” justices held that the state of Florida had to stop recounting their votes, even though the Florida Constitution required the recount. They overrode “states rights”. Another point. The 5 GOP justices also ruled that the case would not set a precedent. Even though ALL SCOTUS decisions are supposed to be precedent setting and Constitutional. All in all the most corrupt court decision since Dred Scott.
Also, in the months before the election the Jeb Bush folks hired a company to “purge the rolls” of possible felons. The company was given certain parameters. They told the Bush folks that using those parameters would end up disenfranchising thousands of voters who were not felons (having the same LAST NAME, like Johnson, Jackson, etc). Bush said to do it anyway. As a result many folks, mainly blacks who went to the polls arrived to vote and were told they could not. Even happened to a black Democratic congress woman !
https://abcnews.go.com/Politics/story?id=122369&page=1
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Thank you, Joseph, for adding these important historical notes.
The playbook is damnably familiar.
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Unfortunately, I think this decision has now unleashed a sad arms race where states will introduce their own radical laws in an effort to challenge the Supreme Court’s decision. I expect that this court, however, will happily go along upholding/overturning decisions based on their own personal ideologies.
That said, I’d like to see a state law allowing any woman who becomes pregnant to sue the man who impregnated her for $10,000 plus 18 years of child rearing expenses. If men have to share the responsibility of carrying and raising their offspring, we’ll soon see protections for abortion.
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I think if paternity is established the man is responsible for child support for 18 years… if you can find him.
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States are already unleashing their own radical laws—on abortion rights, voting rights, gun rights…so can privatized vigilante “justice” be far behind? It will be interesting to see how the SC majority rules if the California gun proposal Newsom has introduced moves forward.
I fear it would only be blue states that would pass the kind of paternal responsibility legislation you’re suggesting, Carol.
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