(Excerpts below from historian Heather Cox Richardson’s Letters from an American newsletter, May 2, 2022)
“Tonight, news broke of a leaked draft of what appears to be Supreme Court Justice Samuel Alito’s majority decision overturning Roe v. Wade, the 1973 Supreme Court decision establishing access to abortion as a constitutional right.
“That news is an alarm like the 1857 Dred Scott v. Sandford decision declaring both that Black Americans had no rights that a white man was bound to respect and that Congress had no power to prohibit human enslavement in the territories. The Dred Scott decision left the question of enslavement not to the national majority, which wanted to prohibit it from western lands, but to state and territorial legislatures that limited voting to white men….
“We are in a weird moment, in which Democrats are trying to shore up democracy while Republicans are actively working to undermine it. House Speaker Nancy Pelosi (D-CA) and Senate Majority Leader Chuck Schumer (D-NY) issued a statement after the draft leaked, calling the draft ‘one of the worst and most damaging decisions in modern history.’ They noted that the justices lied to senators to get confirmed, saying they considered Roe v. Wade settled law, and are now—if the draft is confirmed—stripping away from American women a constitutional right they have held for 50 years. (emphases mine throughout)
“’The party of Lincoln and Eisenhower has now completely devolved into the party of Trump,’ Pelosi and Schumer wrote. ‘Every Republican Senator who supported Senator McConnell and voted for Trump Justices pretending that this day would never come will now have to explain themselves to the American people.’…
“And so here we are. A minority, placed in control of the U.S. Supreme Court by a president who received a minority of the popular vote and then, when he lost reelection, tried to overturn our democracy, is explicitly taking away a constitutional right that has been protected for fifty years. Its attack on federal protection of civil rights applies not just to abortion, but to all the protections put in place since World War II: the right to use birth control, marry whomever you wish, live in desegregated spaces, and so on.
“The draft opinion says the state legislatures are the true heart of our democracy and that they alone should determine abortion laws in the states. But Republican-dominated legislatures have also curtailed the right to vote. When Democrats in Congress tried to protect voting rights, Senate Republicans killed it with the filibuster.
“Tonight’s news is an alarm like the 1857 Dred Scott decision, which gave a few white men who controlled state legislatures power over the American majority.”
And from Richardson’s May 3 newsletter on the same topic:
“It seems likely that the right-wing justices, who are demonstrating their radicalism by overturning a 50-year precedent, are prepared to undermine a wide range of constitutional rights on the grounds—however inaccurate—that those rights are not deeply rooted in the justices’ own version of this nation’s history and tradition.”
Note: The paragraph below refers to the portion of Alito’s draft memo that states “…the authority to regulate abortion must be returned to the people and their elected representatives.”
“Protesters turned out in front of the Supreme Court and across the country today vowing that women will not go backward. As actress Ashley Nicole Black tweeted: ‘There’s a particular slap to the face of being told we can vote for abortion rights, by the court that gutted voting rights.’”
Please share your reactions to what appears to be a seismic event for our country.
Annie
annieasksyou... 
Joseph Urban wrote:
Make no mistake. The fundamental concept articulated by Alito has massive ramifications in all areas of life. State legislatures will attempt to return to a more repressive system. Be certain that there are many state legislatures chomping at the bit to take away rights from blacks, immigrants, homosexuals, news organizations, etc. The current majority on the Supreme Court now has a firm basis on which to overturn any well established Supreme Court decision.
Today New York and other states may celebrate liberal state laws, but the next court decision could invalidate state laws. If step one revokes a Constitutional right, Step 2 could find abortion and other civil rights unconstitutional.
https://josephurban.wordpress.com/2022/05/04/step-one-accomplished/
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Absolutely, whungerford. I just responded to Joseph’s post and your comment. Thanks.
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This is the outcome of a decades-long strategy. Every since the Christian Right become the dominant element of the Republican party, they’ve been using it to pack the Supreme Court with theocrats, in service to their ultimate goal — using government power to enforce the taboos of their religion on the country to the greatest extent possible. Expect attacks on same-sex marriage and separation of church and state as the opportunity arises.
When theocrats are given power, they will use it, unapologetically and without restraint. There is no way to deal with that except to take the power away from them.
In theory, if the voters this year enlarge the Democrats’ Senate majority to 52-48, they could abolish the filibuster despite the obstruction of Manchin and Sinema, which would enable them (if they also retain the House majority) to pass federal legislation protecting abortion rights, and also enlarge the Supreme Court to neutralize the power of the five theocrats who now dominate it. However, the party leadership continues to reject abolishing the filibuster or expanding the Court as too radical. That is, they will not do anything effective to restore abortion rights even if the voters give them the power to do so. Once this fact sinks in, it will de-motivate the Democratic voting base more devastatingly than anything else I can think of.
So the only thing that seems likely to do any good is grassroots action — pressuring state legislatures not to adopt restrictions, helping women in red states obtain abortion pills or travel to blue states for abortions as needed, etc.
I am not impressed with politicians fulminating about how awful the ruling is. If they want our votes, they need to commit to taking action that will actually do some good, not kowtowing to hoary and ridiculous Senate rules and traditions that nobody outside DC cares about.
The draft opinion says the state legislatures are the true heart of our democracy and that they alone should determine abortion laws in the states. But Republican-dominated legislatures have also curtailed the right to vote. When Democrats in Congress tried to protect voting rights, Senate Republicans killed it with the filibuster.
Conservatives in the US, even secular ones, are oddly fervent in their loyalty to the outdated view that the states are near-sovereign entities and the federal government is secondary and should have only the most limited power over the states. This view of how the system should work was decisively abrogated by the most pivotal single event in all of US history, the Civil War, which established that the states do not even have the right to secede. They are making decisions on the basis of a dogma which has been obsolete for a hundred and fifty-seven years.
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I agree with much of what you say here, Infidel, but I don’t personally fault the Democratic leadership because I feel the anti-choice Manchin has once again put them in an untenable position. I hope the President’s messaging that this is the first of many privacy rights that are in danger—and we need to elect many more pro-choice Democrats—resonates now and will be used by Democratic politicians AND grass roots activists to cut through the apathy and disaffection we’ve seen to date.
The Republicans feel vulnerable because they’ve always used this as a holy grail, and they know a substantial majority of Americans support retaining Roe—including people in every religious group except white evangelicals. That’s why all the talk today from their leadership has been “I’m shocked! Shocked!” that someone would do such a terrible thing as leak Alito’s memo. Focus on the leak, their messaging says; we don’t want most voters actually paying attention to what we’re doing.
Our responsibility is to make sure more voters realize what they’re doing: how high the stakes are for all of us.
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All I’m asking for is a clear, unambiguous statement from the Democratic leadership that if they get an enlarged majority, they’ll abolish the filibuster and actually pass something to protect abortion rights. Without abolishing the filibuster they won’t be able to do anything.
Anything short of that clear commitment sends the message: “The Republicans are taking away your rights — vote for us and we won’t do anything actually effective to stop them.” A strategy of “look how awful the other party is” is a waste of time. If we do elect more Democrats, what specific actions are they going to take to fix the problem? Yes, Manchin and Sinema are currently making it impossible to act. Tell us what you’ll do to restore people’s rights if we vote you the power to work around them. Otherwise there’s no point in voting you that power.
“Look how bad the Republicans are” didn’t work in 2016, nor did it work in 2020 (Democrats lost almost every seriously-contested race except the presidency and the Georgia and Arizona Senate races, despite massively out-spending their opponents), and it won’t work now. More of the same is not good enough. They need to commit to using their enlarged majority, if they get it, to taking specific steps that will actually change things. If they won’t even give us a promise to abolish the filibuster, then the stakes aren’t high at all, because voting for more Democrats won’t make any difference.
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Infidel: I agree on the substance of ending the filibuster and expanding the court, but not on the timing: using it to demand the Dem leadership state their intentions now. Biden has already said he’d like to see it used for voting rights and Schumer has said he wants to get rid of it altogether. Manchin shot them down. All we need is for the egomaniacal Manchin or the flaky Sinema to join the autocratic Republicans—and Mitch the destroyer of all good things is in charge. Even out of the majority, he would use these “radical” positions to further the success he and his truly radical gang have had in portraying Biden as a “radical” President.
“Voting for more Democrats won’t make a difference”? Biden has said he will sign legislation codifying Roe. We can get voting rights. And to me, the elements in the badly named BBB bill would make a huge difference: cutting child poverty—as the EITC legislation that lapsed did—pre-K, child care, free community college, climate change mitigation…not to mention the possibility of another Supreme Court justice and continuing Biden’s fine appointees in lower courts, and simply getting through all the nominations he’s made to run the govt to clean up Trump’s messes. I don’t agree with that sentiment at all. The Republicans are a cult and they must be defeated. I’m sure you’re aware how much worse things can get.
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You have a valid point about the timing of the leadership stating its intentions. If Manchin switched parties, it would certainly make things worse (I’m not too worried about Sinema, a bisexual atheist, joining the Republicans). So perhaps it’s wise for the leadership to avoid being too explicit. And you’re right that retaining control of the Senate is important for judicial confirmations. But it’s difficult for voters to feel motivated when the party, for whatever reason, can’t or won’t make its intentions clear. People are looking for them to fight like hell for what the base wants, the same way the Republicans fight like hell for what their base (religious fundamentalists) wants.
Biden’s willingness to sign legislation codifying Roe, voting rights, BBB, etc are all meaningless if they won’t abolish the filibuster when they get the power to do so, because without abolishing the filibuster, such legislation can’t be passed. That’s my point.
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I get your point. We do need more fire from the Democrats. But here’s my hopeful scenario: we get larger majorities in House and Senate (and state legislatures…).
A solid bill with the best components of BBB is passed through Budget Reconciliation (permitted up to three times a year, I think). As Biden already said he’d support bypassing filibuster for voting rights, that gets done. And the same premise could readily be used to ensure the stability of a Constitutional right under danger of extinction, so reproductive rights get codified by filibuster too, if necessary.
Does that seem doable?
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And the irony is this. As soon as McConnell gains control of the Senate he will abolish the filibuster and jam through any legislation the far right wants. Now he has the Supreme Court firmly in his grip.
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I’m sitting here with my head in my hands. I’ll give it another five minutes or so to absorb this latest attack on the country and democracy I so love . . . and then, it’s time for action.
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Sounds like a plan, Denise! I think if this goes through, and people see that it’s the opposite direction from the way most developed nations are going, the realization of the drip-dripping erosion of the imperfect democracy we’ve had will finally become meaningful.
The fact that Ireland now guarantees the right to abortion, but the US is about to ban it, shows with startling clarity how radical this court’s and the Republicans’ plans are. I derive some hope that the Alito memo may be the wake-up call we’ve needed.
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Ireland repealed its long-standing ban on abortion (by referendum) after the Catholic Church’s former iron grip on the minds of the Irish people had been destroyed by the child-abuse scandals. The Supreme Court is about to allow states to ban abortion because the Republicans have managed to impose a majority of theocratic-minded religionist justices, even though American society is rapidly becoming more secular. Ultimately it always comes down to religion, and religious fanatics trying to get power.
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And power equals money.
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Ours is a frightening country. The numbers of repressive, bigoted people has been growing and growing over the last 30 or 40 years, and spurted when Trump entered the political scene. To me, these people are mutants. And they are all too real.
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It is indeed scary, Neil. But for years we’ve been hearing that abortion was the car the dog kept chasing but would never know what to do if he caught it.
With this information and the January 6 hearings in June, we just may be able to bring together a coalition of folks who finally see what’s been happening—and realize they have to vote Blue—up and down the ballot.
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Actually, their numbers have been shrinking for thirty of forty years. Every survey has shown that the religious-fundamentalist, anti-gay, racist, etc element is a declining percentage of the population. What’s been growing is their militancy and determination to exert political power to impose their views on a society evolving away from their own beliefs about how it should be. Trump certainly encouraged them to be more vocal and visible, but we need to have an accurate view of what’s going on. The radical right is not growing, they’re shrinking, but becoming more militant and organized.
There’s also the issue that the Democrats have more recently adopted a number of policies and stances so repulsive and alarming to average mainstream people that they feel forced to vote for the Republicans — yes, with Trump and everything else — as the lesser of two evils. That’s outside the topic of this post, but “yeah, we know how bad the Republicans are but you guys are even worse” is a very real issue.
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Infidel: There are a couple of topics that you won’t permit to be discussed on your blog and I’m fine with that and don’t want to discuss them here either. But there is only one party in the US now standing in the way of the end of our democracy—and it ain’t the party that cries “voter fraud” and “child porn” when every case of actual voter fraud and child porn that surfaces turns out to have been perpetrated by Republicans. The Democrats did not come up with “alternate facts” and politicize the pandemic. The Democrats have not been part and parcel of the dark money machine that’s been capturing the SC for years and funding all the vote suppression and anti-abortion and anti-immigrant and anti-climate change is real and anti- public education campaigns that are stirring up hatred and contempt for all established institutions in our country. Hopefully, we’ll learn who was funding the Insurrection soon.
So yes: the other party is worse. It’s not a party at all. It’s a cover for the wealthiest Americans to use fear and lies to frighten people so they won’t notice why their economic situations have worsened over the last forty or so years.
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I don’t want to go on at length off the main topic, but I’ll just point out that the point of my comment was not my own assessment of how bad each party is, but growing numbers of voters‘ assessment of that. As I noted above, Democrats lost most seriously-contested races in 2020. Polling for this year basically looks very bad. And I’m seeing an awful lot of “I’ll never vote for the Democrats again” around the internet by people who, a few years ago, would never have imagined themselves feeling that way. This is a serious problem and the Democrats need to address the issues on their own side if they want to keep winning elections. Endlessly pointing out all the things wrong with the Republicans (as many and as real as those things are) won’t do it.
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Alas, some of what I read is from young people who say “I’ll never vote for the Democrats again…unless Biden forgives all my student loans.”
I agree that sentiment is an issue; I just see many diverse factors behind it, including poor messaging, blatant lies by the Republicans, journalists who still see politics as a horse race instead of accurately reporting things that are an actual threat to their First Amendment rights, etc, etc.
And I put poor messaging first because I think it’s a big deal that must be better addressed. That’s why I felt Biden’s immediate statement that the court’s radical position concerning Roe had even broader implications was a good sign.
Interesting tidbit I just read in today’s NYTIMES: a post-election study showed “58 percent of voters who flipped from Mr. Obama to Mr. Trump in 2016 said that they would support a law that would ‘always allow a woman to obtain an abortion as a matter of choice.’”
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Only if this recent news wakes the American public up and leads to voting out all the MAGA Republican Party from elected leadership, is there hope for saving us all from the horrible possible outcomes mentioned above.
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I agree, George. I think we can do it. I saw you’ve written something too. That’s next on my agenda.
Hope all is well!
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This is but one piece of the puzzle that the Republican Party is putting together. The Senate’s refusal to pass the two voting rights acts last year were another piece. What’s next? I have nattered enough about it today, but think same-sex marriage, interracial marriage, birth control, voting rights, segregated schools, religion in schools, forced religion, and more. This is only one step, albeit a horrible one that has left me gnashing my teeth and determined to fight!
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Yes, Jill, as Richardson says pointedly, all rights based on privacy are now vulnerable. And fight we must! I’ve been writing about the threats to our democracy repeatedly. I do see this as a defining moment that reaches people more personally.
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Agreed, my friend. Gonna have to buy me a supply of rolling pins and boxing gloves, for I’m ready to fight!
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I admire your spunk, Jill. But based upon what you’ve described about your health, I think adding postcard writing to your powerful blogging voice would be just terrific!😉
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You mean you don’t think I should be protesting around the Supreme Court, carrying a sign and shouting? 😉 Yeah, postcard writing is probably more in keeping with my energy levels these days!
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I mean We Do What We Can! Take a look at my closing paragraphs in my latest post: “On the Economy, Biden Wins!”
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😊 I know, my friend, and I thank you for caring! I saw your latest post in my inbox, but haven’t yet gotten around to email (I took most of today off for family time), but I’ll get there soon!
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This has become the Republican Party that Barry Goldwater was frightened of…
“Mark my word, if and when these preachers get control of the [Republican] party, and they’re sure trying to do so, it’s going to be a terrible damn problem. Frankly, these people frighten me. Politics and governing demand compromise. But these Christians believe they are acting in the name of God, so they can’t and won’t compromise. I know, I’ve tried to deal with them.” (Personal communication from Goldwater with John Dean).
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Another good historical note, Joseph. When the guy who said “Extremism is not a vice…” said he was frightened by these people, his concerns should have gained more prominence in the public square.
I have long felt that the danger lies in the unholy alliance between the white evangelicals and the likes of Charles Koch and his ilk; Koch is reportedly not religious, but places “virtue” (however he defines it) above “talent,” according to a WSJ article.
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You sound exactly like my wife. The combination of evangelicals and oligarchs. Toxic to democracy.
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Your wife sounds like a smart woman, Joseph!😉
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I find it totally bizarre Annie, that such a thing could happen in 2022, and I am someone who remembers the early 70’s and the advent of the women’s lib movement. This would be a non-issue here in Canada. The only conservative politician even remotely resembling the Trump movement, Maxine Bernier, failed in his bid for the Conservative leadership, started his own People’s Party and only got 1.6% of the vote in the last election, and his party failed to win even a single seat in Parliament? This was a leaked draft, but I can’t see how they can possibly go ahead with such a decision, so I suspect who ever leaked the draft wanted them to have a taste of the backlash.
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Actually, the suspicions about the source of the link are all over the place. Some point out that the conservative Wall St Jrl editorial board seemed to have inside info ahead of time. The theory is to get the opposition exhausted now so the fury will be tepid when the ruling is public in June—and even weaker by the elections on Nov.
It is horrific and scary. I am counting on a continuing aroused electorate to create a Democratic wave in Nov.
Be grateful for the political problems in Canada, Joni! They’re manageable.
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I did read an interesting Huffington Post article with four theories about who leaked it, Democrats vs Republican, deliberate versus accidental as in left in the copy machine. They felt the most likely one was a deliberate Republican leak with the intent of outing the judges who had agreed in case they changed their minds later. Sorry, but I can’t find the article. I don’t think people are going to forget about it by November, it is too important an issue, and I hope it spurs people to get out and vote who might otherwise not bother. I did some reading on abortion in Canada, and at least 30% now is hands off medication induced, spurred by the increase in virtual consultations due to the pandemic. When I retired five years ago the abortion pill had just been approved here in 2017 but distribution was limited to OB-GYN doctors offices, but access is much easier and more widespread now. Abortion here is not as common either, with advent of the morning after pill – Plan B – of which I dispensed many during my career – it was OTC, especially after proms!
I suspect our political problems are more manageable, as our political parties are not that far apart in ideology or action. Sometimes I fear for your wonderful country Annie as I see no resolution for some of these issues as they are so divisive.
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Ah, yes! The morning-after pill. The zealots will be after that as well.
I did hear that same thought about the effort to harden the votes of a possible wavering justice who might, for example, think Alito’s snide verbiage was unsuitable in such an explosive document.
I’ve linked below to a discussion on the Sisters in Law podcast, which I always find enlightening. This one is really good.
I continue to hope and believe we’ll pull out of this, Joni. Thanks.
https://podcasts.apple.com/us/podcast/scotus-rulings/id1551206847?i=1000559903944
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Thanks Annie – I will give it a listen tomorrow. Every night I say I’m going to bed early and here it is almost 12 again!
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I do the same!
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PS. The other thing I wanted to say is his rationale for striking it down, as it’s not in the Constitution, is such a flimsy argument, that it really speaks to the poor calibre of judges appointed by Trump. I’m not seeing any brilliant minds like Ruth Ginsberg.
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Right. On the podcast I just linked to, former prosecutor Barb McQuade, was asked by another if Alito got anything right. She said: “The spelling was pretty good…just a few typos…”
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HA!
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This is a very weird moment in that we are given a glimpse into the process of the court that is typically hidden. I do think that the leaked opinion is real and will become official in time. And I’m frankly terrified about the precedence and where we go from here as a country.
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I remain hopeful that this will be the spark awakening Americans to the height of the stakes in the Nov elections. People who thought it was “radical” to consider reforming the Supreme Court may feel differently now that this truly radical majority has shown the depths of its contempt for settled law and precedents. And perhaps their lying under oath during their confirmation hearings will be addressed as it should be.
Correction: I just heard a commentary that they were all careful enough to avoid perjury, though they were clearly misleading.
It’s all very scary, but we can try to replace our fear with determination.
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Horrifying, Annie. Such is the imbalance on the court at the moment, I dread to think of the consequences. What do you think the options are/recourse should the decision be made?
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Right, Matthew: the consequences are dire and will be felt by the poorest and most vulnerable women. More broadly are concerns about other rights. Alito’s draft ruling speaks of only rights appearing in the Constitution, taking us back to white, male, Christian landowners.
It’s hard to say what options may be feasible at this point, but political action is essential. A good case can also be made for expanding the court solely on the basis of workload: there are 12 regional circuits (and 13 appellate courts). Adding 3 justices, making one justice for each circuit, might then be justifiable and not open the floodgates to an ongoing battle for more seats by both sides. Of course it would still be viewed as political by the party that stole two seats from Democratic Presidents.
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as for reaction — mine is one of total horror… am planning to post something on it at my own site soon. it’s imperative we all become as vocal as possible & get the word out…
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Great, da-AL!
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