As everyone knows by now, the Republican effort to turn the Supreme Court into a political tool has just borne fruit --- The media has published a draft of an opinion written by Justice Samuel Alito which completely overturns Roe v. Wade (as well as Planned Parenthood v Casey, which re-affirmed Roe while changing the rules slightly). The Alito opinion already has a five-vote majority taking away a Constitutional Right that has been the law of the land since 1973. (Overruling Casey is significant, especially because it reaffirmed the basis of Roe – namely that the 14th Amendment due process clause confers a privacy and liberty right on people --- including the right to use contraceptives (Griswold v. Connecticut), the right to marry someone of a different race (Loving v. Virginia), the right to same sex marriage (Obergefell v Hodges). Most observers knew that there probably were six potential votes to overturn Roe on the Trump/McConnell Supreme Court, but many believed that out of respect for precedent that majority would try to eviscerate Roe without overruling it. But so far, it seems that Alito and the worst of the worst (Gorsuch, Kavanaugh, Barrett, Thomas) have gone for a full repudiation of Roe and therefore Casey. I imagine Chief Justice Roberts is scrambling to try and persuade those five to soften the ruling so he can join with them.
Here are the crucial words of the Alito opinion: “Roe was egregiously wrong from the start. … It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” Alito did acknowledge that previous interpretations of the due process clause in the 14th Amendment had concluded that even rights not specified in the Constitution, are to be protected. However, in this draft opinion (agreed to by four others, remember) he argues such extensions must be “deeply rooted in the nation’s history and tradition” and “implicit in the concept of ordered liberty.” [Here Alito is actually quoting from a 1997 decision by the Court.].
Alito goes on to argue that abortion is not in that category. The problem for Alito, of course, is that neither is the right to marry someone of a different race or of the same gender. Many believe that in overruling Roe as in this draft opinion, the Court is setting the stage to overrule all extensions of rights based on the due process clause --- rights that go back to Griswold v Connecticut --- In other words, the Alito opinion as written sets the stage for further “take backs” of Constitutional rights. So Alito tries to reduce those concerns. He goes on to characterize abortion as unique because it “kills” life. Well, not to be too crude, so does male masturbation. And so does the IUD birth control method. When the decision is published (and it will be extremely interesting to see if the final decision utilizes the same language or softens it a bit), the dissenters will undoubtedly make mince-meat of Alito’s arguments, but it won’t matter. That five-vote majority has the power and they are clearly determined to use it.
This decision has been a long time in coming. Ever since Roe was decided, the extreme right wing has been gunning for it. Unlike the racist Southerners apoplectic about Brown v the Board of Education which outlawed school segregation who could only impotently put up billboards all over the South demanding that the Chief Justice (Earl Warren) be impeached, the anti-choice authoritarians have practiced a “long game” for over 30 years. Ronald Reagan tried to appoint right wing Judge Robert Bork to the Supreme Court but his views were too extreme for a majority of the Senate. Antonin Scalia was able to hide his extremism and sailed through to confirmation. But sometimes Republican Presidents ended up picking Justices who turned out “liberal” on certain issues. Richard Nixon picked Harry Blackmun who wrote the majority opinion in Roe. Ronald Reagan picked Sandra Day O’Connor. Geroge H.W. Bush picked David Souter. Reagan, of course, also appointed Scalia and H.W. Bush appointed Thomas. But as the other examples indicated, there were no guarantees.
The result was that during the George W. Bush administration, the Federalist society became a clearing-house for future picks. Bush 43 appointed Roberts and Alito. The most politicized set of nominations, though, of course belonged to Trump. All three of his picks were specifically chosen because the Federalist Society vetters knew they were votes to at some point overturn Roe.
How many listeners remember the contortions Senator Susan Collins of Maine went through to justify her vote to appoint Kavanaugh, a man who brazenly perjured himself before the Senate and got away with it? Remember she said that she was “sure” that Kavanaugh would respect the Roe precedent? What she was sure of, instead, was that she hadn’t a chance of being re-elected if she crossed Trump and the Trumpies in Maine. Meanwhile, another allegedly pro-choice Republican Senator, Lisa Murkowski of Alaska, voted to confirm both Gorsuch and Barrett despite Barrett’s clear record of opposing Roe. (At least Collins voted against Barrett and Murkowski voted against Gorsuch --- but Collins’ support for Kavanaugh was crucial and had she played a role in stopping him from getting on the Court, she would have been subject to a right wing primary in Maine and might have even lost the Republican nomination.)
So the Supreme Court majority has revealed the ugly truth --- they are extremist politicians who don’t have to answer to voters. The seat Mitch McConnell stole in 2016 combined with the rammed through appointment of Amy Coney Barrett in 2020 provided the margin of victory.
Okay, Americans. What the HELL are we going to do about this? I have been talking in these commentaries about the FIVE ALARM FIRE that is threatening to consume what little remains of our democratic forms. It took our country almost 70 years between the 1890s and the mid-1960s to end de jure second class citizenship for black Americans. It only took the Supreme Court one day --- the day they announced the Shelby County ruling in 2013. That decision gutted the voting rights act, and turned the clock back to pre-1965 America. That ruling opened the door to extensive voter suppression.
And let us not forget the Citizens United decision which opened the door to corporate money purchasing seats in Congress.
There is only one way to reverse those three horrendous rulings from the Supreme Court and that is to through Congress. If Manchin and Sinema would permit carve outs from the filibuster, the Senate could (with 51 votes) make Roe the law of the land via legislation --- legislation that currently exists in some pro-choice states. Carve outs from the filibuster could also be used to restore voting rights taken away by the Shelby County ruling. (Unfortunately, it seems it would take a Constitutional Amendment to reverse Citizens United but if new Justices came to the Court, they could be encouraged to treat Citizens United the way Alito and company are treating Roe – and just overrule it!)
Are the women of America who are 60 years old or younger – women who have never had the threat of forced pregnancy hanging over them – willing to rise to the challenge? Are white Americans who demonstrated to support the black-lives-matter movement in 2020 going to sit idly by and let our fellow black citizens be denied the right to vote as generations were between the 1890s and 1960s? Are black and brown Americans going to take this lying down?
The media has already “given” Congress to the Republicans in next November’s elections. If the members of the coalition that came out to vote and elected Joe Biden stay home in November, that will come to pass. If the Republicans take Congress it’s curtains for our democracy. If the Democrats hold the House and increase their margin by just two votes in the Senate, they Manchin and Sinema lose their veto power and anything is possible.
Soon after Trump took offie he began to prove he was as bad as many feared he would be. The most egregious things were the Muslim ban, the trillion-dollar giveaway tax cut to billionaires, the child separation policy at the border, and most significantly the criminal negligence that helped kill hundreds of thousands of our fellow citizens in the COVID pandemic.
The people responded, even before he did anything. First it was the women’s marches which greeted his inauguration. Then the Democrats took the House and impeached Trump twice. Finally, Trump was unceremoniously dumped in 2020.
There are people already committed to work to defeat Trumpism in 2022. But what about the rest of us? --- What about folks who usually sit out the mid-terms? --- What about folks who think Biden is doing a lousy job and therefore won’t vote to protect our fragile Democracy from being completely gutted should the Republicans take over. THE FUTURE IS LITERALLY IN OUR HANDS! WHAT ARE WE GOING TO DO??
Michael Meeropol is professor emeritus of Economics at Western New England University. He is the author with Howard and Paul Sherman of the recently published second edition of Principles of Macroeconomics: Activist vs. Austerity Policies
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