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Saddled With An Illegitimate Supreme Court


"Women's Rights" by Nancy Ohanian

Yesterday, Washington Post columnist Paul Waldman dug into the lies the illegitimate conservative Supreme Court justices told about Roe during their confirmations. "They weren’t just evasive, or vague, or deceptive. They lied. They lied to Congress and to the country, claiming they either had no opinions at all about abortion, or that their beliefs were simply irrelevant to how they would rule. They would be wise and pure, unsullied by crass policy preferences, offering impeccably objective readings of the Constitution... We went through the same routine in the confirmation hearings of every one of those justices. When Democrats tried to get them to state plainly their views on Roe v. Wade , they took two approaches. Some tried to convince everyone that they would leave it untouched. Others, those already on record proclaiming opposition to abortion rights, suggested they had undergone a kind of intellectual factory reset enabling them to assess the question anew with an unspoiled mind, one concerned only with the law... [N]o one should be naïve enough to believe a word any conservative says on this subject, except for those few who forthrightly proclaim that the Supreme Court must read right-wing policy preferences into the Constitution. There was never any mystery about who these justices are and what they would do. There were only liars saying otherwise, and fools who chose to believe them."


Writing for The Atlantic, Adam Serwer noted that Republicans Hope Their Assault on Democracy Will Stop a Post-Roe Backlash. He sensed-- as did we all-- that "the Supreme Court’s Republican-appointed justices displayed an eagerness to overturn Roe v. Wade, the legal precedent that prevents states from banning abortion. This is no surprise-- the conservative legal movement fought a decades-long political battle to achieve just this objective. The case, which will decide the constitutionality of Mississippi’s ban on abortions after 15 weeks of pregnancy, offers a clear opportunity to do so.


Justice Amy Coney Barrett, a Trump appointee, compared the “infringement on bodily autonomy” of forcing a woman to carry to term to vaccine mandates, an argument foiled by the obvious reality that pregnancy and abortion are not contagious. Justice Samuel Alito implicitly compared Roe to Plessy v. Ferguson, the decision holding racial segregation constitutional, as he suggested that cases that had been wrongly decided should be reversed without regard for precedent. Given that Roe and Plessy take opposite views of states’ authority to deny basic liberties to their residents, it was a strange comparison. Justice Brett Kavanaugh, another Trump appointee, made Alito’s invocation of Plessy even more ironic when he offered that the problem was that the Court had been “forced” to “pick sides on the most contentious social debate in American life,” rather than leaving it “to the people, to the states, or to Congress.” Plessy applied this argument to racial segregation, arguing that the states were “at liberty to act with reference to the established usages, customs, and traditions of the people.” Black voters in Louisiana were soon entirely disenfranchised; they were not among “the people” who could determine what those customs and traditions were.
The flowery paeans to democracy began early in the oral argument. Mississippi Solicitor General Scott G. Stewart, defending his state’s strict ban on abortion, began by declaring that precedents guaranteeing abortion rights had “damaged the democratic process” and that “when an issue affects everyone and when the Constitution does not take sides on it, it belongs to the people.”
Perhaps, at first glance, that seems fair. But even setting aside the question of whether people’s fundamental constitutional rights should be settled by popularity contests, and the fact that the Court has previously ruled that the Constitution does take sides on the question of whether women can be forced by the state to carry a pregnancy to term, this argument for democracy is offered in bad faith. Religious freedom is also a contentious issue, and the Roberts Court has shown little modesty in settling such debates as it pleases, in accordance with the customs and traditions of its conservative majority. Furthermore, the Mississippi law’s proponents understand that they have the tools to limit any popular backlash to overturning Roe, and the justices know this because they helped forge those tools themselves.
In 2019, the Supreme Court continued its long streak of antidemocratic rulings, holding that partisan gerrymandering was not unconstitutional. Given the racial polarization of American politics, it is a simple matter for Republican legislators to draw districts that systematically disenfranchise Black voters, and then insist they were discriminating on the basis of party, not race. Plessy is more popularly known, but perhaps the 1898 decision in Williams v. Mississippi is more germane here. In Williams, the Court held that infamous devices intended to disenfranchise Black voters, such as the poll tax, grandfather clause, and literacy test, did “not on their face discriminate between the races.” This case rarely gets included when justices list the Court's more noxious rulings, not only because it is less well known, but because most of the Republican appointees would rather not acknowledge that they have explicitly echoed its reasoning.
The Roberts Court’s jurisprudence has set off a bipartisan race to the bottom, with Democrats and Republicans seeking to rig maps to their advantage in states they control, insulating themselves from popular discontent. This is grim but rational: Under this system, legislative and congressional majorities rest on the ability of lawmakers to disempower their own constituents.
Republicans control more states, however, and geographic polarization allows them to easily draw maps to maintain their power in state legislatures and federal House districts. Should they lose a statewide election, such as a governorship, they can simply strip the Democratic governor of key powers and then wait until a Republican is back in office. If a state referendum goes the wrong way, Republicans can rely on the legislature, or the courts, to nullify it, as they have with Florida’s poll tax (a device explicitly barred by constitutional amendment) or marijuana legalization in South Dakota.
The Court’s gutting of the Voting Rights Act’s preclearance powers means lawmakers are entitled to impose burdens on voting to narrow the electorate where gerrymandering fails. The people can do less and less to ensure that lawmakers’ decisions reflect their preferences, unless the people are consistent Republican voters. Nor are states given a free hand when implementing policies they believe would strengthen democracy-- those are not among the contentious issues the Court’s conservative majority feels should be left to the people. If Democrats wish to compete in this environment, they need simply alter their stances to reflect the views of voters whose ballots actually count.
To paraphrase Justice Ruth Bader Ginsburg-- whose decision not to retire under President Barack Obama was an important factor in this outcome-- the Court has turned democracy on its head, allowing lawmakers to choose their electorate, rather than the electorate choosing its lawmakers. Democracy, for our august justices, is just another way of saying: Heads we win, tails you lose. Democrats in Congress have failed to use their fragile trifecta to change this system, and Republicans believe it ensures that the correct people will rule. And so Americans will be governed by it for the foreseeable future.
If the Republican-appointed justices-- only one of whom was appointed by a president who originally won the popular vote-- sound somewhat cavalier about stripping half the country’s population of a fundamental constitutional right, well, they have good reason to be confident. They have engineered a system that allows “the people,” whose will they invoke with venomous cynicism, little power to respond.

Bernie e-mailed his supporters this morning to talk about Republican hypocrisy on the whole issue of how government is used to coerce societal restrictions and enforce a kind of reactionary status quo backed up with a fully reactionary Supreme Court. "This week," he wrote "the Supreme Court heard the most direct challenge to a woman’s right to choose since the Roe v. Wade decision in 1973. And let's be clear. From the day of that decision almost 50 years ago until today, right-wing politicians have worked tirelessly to reverse it and to make it more difficult for women to control their own bodies. They've done it through increasingly restrictive abortion legislation in state after state. They’ve done it through the Hyde Amendment. They’ve done it by attacking Planned Parenthood and shutting down clinics. They've done it by intimidating women who access clinics and doctors who work in those clinics. They’ve done it by making women travel hundreds of miles for an abortion and wait weeks for appointments."


And here's where the blatant, cringe-worthy hypocrisy of conservatives comes in-- conservatives on both sides of the aisle. (Even though most Democrats who oppose women's Choice have now been defeated-- only one House member, Texas Blue Dog Henry Cuellar, voted against codifying Roe this year-- by insisting on enforcing the Jim Crow filibuster, senators like Manchin and Sinema are allowing women's Choice to be eviscerated by a venal, out-of-control, far right Court, impervious to the will of the American people.)


And what really gets me about this issue is the extraordinary hypocrisy of my Republican colleagues. Every day on the floor of the Senate I hear Republicans, again and again, spout their right-wing mantra. "Get the government out of people’s lives." "Get the government off the backs of the American people." "End the nanny state." "Let people, not the government, decide what's good for them." And on and on the rhetoric goes.
When it comes to ending the disgrace of the United States being the only major country on Earth that does not guarantee health care as a right, their response: "Gotta keep the government out of people’s lives."
When it comes to stopping the drug companies from being able to charge outrageous prices for the lifesaving medicine people need in this country: "Gotta keep the government out of people’s lives."
When it comes to asking people who want to buy a handgun or an assault weapon to pass a simple background check: "Gotta keep the government out of people’s lives."
But when it comes to telling every woman in America what she can or cannot do with her own body, about whether or not she can access reproductive health care, now all of a sudden my Republican colleagues are exponents of very big and oppressive government. Whether it is at the local, state or federal level they believe that politicians should make the decisions regarding what is a deeply personal decision for women.
What hypocrisy!
As you know, this current Supreme Court challenge, Dobbs v. Jackson Women’s Health Organization, would mean governments in many states would have the ability to make it virtually impossible for women to access an abortion.
And we are not just talking about so-called “red states,” as if that wasn’t bad enough. We're also talking about "purple states” where Republicans have gerrymandered themselves into control of state legislatures.
And the truth is, despite overwhelming opposition from the American people, there is a very strong chance that this conservative Supreme Court will vote to overturn Roe v. Wade.
That is not acceptable. We cannot sit back and allow this Supreme Court to put in jeopardy the privacy rights of all Americans and a woman’s right to control her own body.
The consequences would be disastrous and threaten the very lives of American women-- and that's not an exaggeration. The reality is that banning legal medically-assisted abortion and forcing women back into the arms of quacks to get the care they need will quite literally kill women.
No. We cannot go back to the days when women had to risk their lives to end an unwanted pregnancy.
The decision about abortion must remain a decision for a woman and her doctor to make. Or, as my Republican friends would say, we have got to keep government out of their lives.
So Congress must act.
We must pass legislation that codifies Roe v. Wade as the law of the land in this country. And if there aren’t 60 votes to do it, and there are not, we must reform the filibuster to pass it with 50 votes.


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