The fate of abortion in America will be decided by five Catholic men.
Thomas, Roberts, Alito, Gorsuch, and—very likely—Kavanaugh: five male Roman Catholics, all put on the Supreme Court by Republican presidents (and two of those by Donald Trump). These guys will have the power to decide the future of reproductive rights in this country and to dictate what an American woman can or cannot do with her own body, to include the authority to make abortion illegal if they so wish.
And those five men very likely will do exactly that, even though roughly 70% of Americans oppose the idea.
Five Catholic men can outlaw abortion in defiance of the public will—yet another way in which the GOP has instituted an authoritarian state in the United States, a grip on power they show no indication of ceding, legally or otherwise. Blessed day.
(Anticipating the complaint, yes, I know Gorsuch has worshipped at Episcopalian churches since marrying an Englishwoman raised in the Church of England. But he was raised Catholic, attended a Jesuit prep school—Georgetown Prep in Washington—did his graduate dissertation at Oxford under the tutelage of a famous Catholic theologian, raised his own children in the Catholic tradition at least in their early years, and has never renounced his Catholicism. So as we used to say in the Army, close enough for government work.)
By the way, Sonia Sotomayor is also Catholic—as is Kennedy and was Scalia—while Ginsburg, Breyer, and Kagan are Jewish, meaning that there are no Protestants on the Court. (The last was John Paul Stevens, who retired in 2010.) I mention these demographics not to suggest that religious denomination is the most important factor in a Supreme Court justice’s profile (Sotomayor is pro-choice, to state just one very basic example), but merely to note the unusual pattern in a country that remains predominantly Protestant.
The Catholic majority speaks to the political union between the GOP and right wing American Catholicism, which these days is itself at odds with the Vatican, or at least with Pope Francis. The number of Jewish justices—fully a third, way out of proportion with their representation in the general public, which is about 2.2%—might say something similar about liberalism, although there are plenty of right wing Jews in the US and one can readily imagine a Republican Jewish justice nominated by a GOP president. In any event, it clearly says something flattering about the outsize influence of Jewish culture in American intellectual life.
But the Court’s right wing Catholic bloc is no coincidence—no liberation theologists in that bunch—and the holy water it carries for the nationwide coalition of religious extremists (of all stripes) and Republican politicians is undeniable. It is also highly strategic. To that end, the Court’s Catholic majority won’t criminalize abortion by blatantly overturning Roe; in this day and age that’s too obvious, even for them. What they will do is cut the heart of that ruling without even having the courage to admit what they’re up to. (More on that in a bit.)
But the end state will be that the United States of America will likely soon have abortion laws far more restrictive than Ireland, which this past May held a referendum in which the Irish people overwhelmingly voted to end their longtime ban on the practice, reversing centuries of repressive tradition in that deeply Catholic country.
Think about that for a moment.
DANGEROUS, ILLEGAL, AND PREVALENT
Many years ago I read a quote from a famous author (but not so famous that I remember him; I want to say it was Roger Angell) to the effect that it baffled him that abortion had come to be the defining political issue of his lifetime.
On the one hand, the reason is obvious: few other decisions are so intimate or literally life-altering for all parties involved. But on the other hand, it’s arbitrary and bizarre that this topic above all others would become the ultimate litmus test for American politicians in the modern era, except in terms of its power to motivate partisanship. And therein lies the rub.
The epistemological question of when human life begins, which is at the heart of the abortion debate, is almost never seriously discussed in the general media. Instead abortion has been turned into a wedge issue like guns and religion, the only other topics that inspire quite the same passion. Of course, it is intertwined with latter, and in some cases, tragically, with the former as well.
Quite clearly, an acorn is not oak tree and a sperm is not a human baby (for those “pro-life” radicals who would go even further and outlaw in vitro fertilization, birth control of any kind, and even masturbation). But few of the people massed outside Planned Parenthood shouting obscenities at terrified young women are interested in navel-gazing thought experiments about when on the spectrum that transition can convincingly be said to have taken place. That uncertainty speaks to the mystery of knowledge in general, with which we humans are typically uncomfortable.
Otherwise sober observers—and not just anti-abortion fanatics—have sometimes argued that pro-choice advocates have elided the harsh reality of what abortion does—and means—in their zeal to protect women’s rights. Maybe so in the abstract, but I am quite confident that no woman who has made the decision to undergo this wrenching procedure took it lightly. There is no Charlottesville-like false equivalence here: the pro-choice movement is not distinguished by gun-toting adherents going around killing doctors in the name of Jesus, any more than there were fine people on both sides when Southern sheriffs were turning firehoses and attack dogs on civil rights protestors. Women’s rights, as a wise woman once reminded us, are nothing more than basic human rights.
Ideally, abortion would be, in the famous formulation, safe, legal, and rare. But it goes without saying that restriction of abortion rights is just a stalking horse for patriarchy in general. Roger Angell has slipped my mind, but I can’t help but recall Flo Kennedy’s famous quip (often misattributed to Gloria Steinem) that if men could get pregnant, abortion would be a sacrament. Does any thinking person doubt it for a second?
Thus we have the weaponization of the American judiciary and the myth of a post-sexist society.
MR. KAVANAUGH GOES TO WASHINGTON
This blog post is the belated companion I promised some weeks ago to a piece about Anthony Kennedy’s retirement called Five Blind Mice (July 11, 2018). In that essay, I bemoaned the mindbogglingly cruel proposition that a loathsome cretin like Trump—illegitimately installed to boot—would have the opportunity to put two or even more justices on the Supreme Court, opening the door to further reactionary rollback of the hard-won democratic gains of the past eight-five years. Now we are deep in it with the fight over Brett Kavanaugh—like Gorsuch, a former Kennedy clerk and not only yet another Catholic but another Jesuit no less. And this at a time when the Catholic Church is not in a position to be lecturing anyone on morality.
During his confirmation hearings (which McConnell, in a great irony, is trying to ram through before the midterms) Kavanaugh will surely put on a ferocious Apache dance in claiming how he can’t possibly speculate about how he might rule in some hypothetical future case such as, oh I don’t know, abortion. He will also go full Mr. Smith Goes to Washington in implying that he has the utmost reverence for legal precedent and is anything but an activist judge looking to overturn Roe v. Wade. Perish the thought! In fact, he already began that charm offensive with his remarks at his nomination, stressing his allegedly female-friendly bonafides. (He coached his daughters’ basketball teams! Rest easy, feminists!) All of this will be carefully calculated to reassure middle-of-the road voters and centrist(ish) GOP senators like Collins and Murkowski that he is not going to gut that landmark ruling.
Then, once on the bench, he will do precisely that.
Kavanaugh is an obvious choice for Trump. A judge on the US Court of Appeals for the District of Columbia Circuit, he has maintained staunchly conservative credentials without earning a reputation for being a bomb-thrower. Unless Republican Sen. Susan Collins grows a spine, which she won’t, he has a clear path to Senate confirmation. During his hearings, Kavanaugh will claim he cannot reveal his true feelings about Roe v. Wade, the 1973 Supreme Court decision establishing a constitutional right to abortion access. But there is little doubt that Kavanaugh will gut Roe at the first opportunity. Indeed, he has already provided a road map that shows precisely how he’ll do it.
….A conservative state will pass a draconian anti-abortion restriction—one that shutters all abortion clinics, perhaps, or outlaws abortion after a fetal “heartbeat” is detected. With Kavanaugh providing the decisive fifth vote, the court will rule that the state law does not pose an “undue burden” to abortion access; after all, the government has an interest in “favoring fetal life,” and women who truly want an abortion can go to another state. The majority may not admit what it is doing. But in practice, it will be overturning Roe.
Kavanaugh is the ideal candidate to cast that fifth vote and even write the opinion. He has already proved that he can pretend to adhere to Roe while hollowing out its core holding. He has revealed a striking aptitude for intellectual dishonesty, pretending to follow precedent while enshrining anti-abortion dogma into law. His disingenuousness will be an asset on the Supreme Court. And within a few years, the United States will be a country of Jane Does.”
How ironic if the chief executive who presides over the reversal of Roe v. Wade turns out to be Donald Trump, a man who has likely impregnated more mistresses and paid for more hushed-up abortions than all of his 44 predecessors combined? (Or more precisely, as Samantha Bee says, promised to pay for them and then reneged.) Just hearing him promise to appoint anti-abortion judges was one of the most egregious examples of demagoguery in a campaign chock full of it. Would his evangelical base at last admit this hypocrisy and turn on him if they were made to acknowledge his history on that count? Or would they just find more tortured rationalizations by which to excuse it?
Just kidding. We know the answer, of course.
Naturally, abortion is only one of many areas where Kavanaugh will reliably support the far right. In his judicial career he has already shown that he will eviscerate consumer protections, oppose reasonable restrictions on guns, undermine public education, and severely limit the power of unions. Given the chance—and the Court will be given it—he will surely vote to repeal marriage equality while finding some way to claim his religious beliefs played no part. In so doing he may well hide behind the newly fashionable Orwellian rubric of “religious liberty”—code for the anti-democratic practice of protecting bigotry and denying civil rights while pretending to be defending religious principle.
How far away are we from the Supreme Court considering the case of a shop owner who claims it is against his religion to serve black people? (Spoiler alert: not very far. Did we not settle this in the Sixties?)
But when it comes to the man who nominated him for the highest court in the land, Kavanaugh’s appeal is even more blatant. As has been widely reported, Judge Kavanaugh is on record as arguing not only that a sitting president can’t be indicted for crimes, but that he (or she) shouldn’t even be investigated for them or required to answer questions about them while in office. He has even opined that the president has the authority simply to ignore laws that he doesn’t like.That is a level of executive privilege that few constitutional scholars would stake out.
It is also a case of jawdropping hypocrisy, given that Kavanaugh was an attorney on the staff of special prosecutor Kenneth Starr, helped draft the Starr Report, and was a key figure on the wildly aggressive, long-running, almost Javert-like pursuit of Bill Clinton that resulted in his impeachment. Whatever one thinks of Clinton, for one of his dogged pursuers to become a staunch advocate of the imperial presidency (conveniently, when it’s a Republican president under fire) is contemptible at best.
But by all means, let’s put this mofo on the Supreme Court.
Kavanaugh has even mused publicly that the Supreme Court was wrong in 1974—in a unanimous vote, with Rehnquist recusing himself— to order Richard Nixon to comply with a subpoena from special prosecutor Leon Jaworski and turn over his secret tapes in the Watergate case. Think about that: if it was up to Brett, Nixon would have gone on his merry way. No wonder Trump loves this guy.
To that end, the ascent of Kavanaugh is especially alarming as negotiations between the White House and special counsel Robert Mueller over an interview with the president appear to be going nowhere and may be headed toward a subpoena and a final decision from the Supreme Court. Where Kavanaugh will be the deciding vote.
If this happened in some Third World country we would all cackle with condescension at the obvious tyranny and corruption at play.
RIDDLE ME THIS
Of the various institutions in the three branches of American government, the Supreme Court has long enjoyed a public reputation as the most incorruptible and above the partisan fray, even if that reputation is not entirely earned. (See Bush v. Gore.) Both left and right triumphantly point to various Supreme Court decisions as vindication of their respective positions on various issues—“the final say,” as it were. But it hardly bears mentioning that the Supreme Court has a history of making some horrifically bad judgments alongside its sterling ones. I refer you to Dred Scott v. Sandford, Plessy v. Ferguson, Korematsu v. United States, District of Columbia v. Heller, and Citizens United v. FEC, to name just a few in the hall of shame.
There is every reason to imagine that a Supreme Court dominated by doctrinaire right wing justices—two or more them foisted on us by Donald Trump and Sean Hannity—will produce some epic shitshows of its own that might soon join that infamous list.
Goodbye Roe v Wade. Goodbye Voting Rights Act. Goodbye marriage equality. Goodbye New Deal. Goodbye common sense restrictions on firearms, on dark money in political campaigns, on unfettered and reckless behavior in the financial sector, and on and on. And of course, that Court would also be in a position to provide the ultimate protection for Trump in a showdown with Robert Mueller.
Once again, those who during the election shrugged and said, “Trump and Clinton are both just as bad,” ought to hang their heads in shame, if they’re even familiar with the concept.
Of course, numerous observers have noted that Gorsuch and Kavanaugh, while the most high profile, actually represent only a small sliver of the damage Trump has done to the American judiciary. The pace at which Trump has named new, archconservative judges to the federal bench, and the sheer numbers thereof, will reshape the American judiciary for decades to come….and that’s not even counting the appallingly unqualified nominees that got kicked back.
Again, as we think about the extent of the destruction Trump has wreaked on the republic, and how long it will take to repair (if full repair is even possible), this is far and away one of the areas where the most long-term damage has been done.
But her emails…..
Returning to abortion by way of closure, the conservative Boston Globe columnist Jeff Jacoby patronizingly portrays the threat to Roe v. Wade as overblown (though he seems to shed no tears over its possible obliteration). But then again, he is also pretty snide about a return to segregated lunch counters at a time when we’ve already taken a giant step backwards toward World War II-style internment camps.
To that end, allegedly intelligent people like Mr. Jacoby are deeply deluded if they think we are not in politically uncharted territory where equally radical measures are indicated in order to defend American democracy. It is dishonest beyond belief to act like this administration and its Congressional and judicial enablers are not demonstrably bent on a radical transformation of this country, as they have already brazenly shown. Don’t be fooled by them.
Here’s a good thought experiment: if there was a way to block senatorial consideration of Trump’s judicial nominees like Kavanaugh and others in the lower federal courts, even if it meant engaging in scorched earth obstructionism of the McConnell variety, would you do it? In other words, would you support doing to Trump and Kavanaugh what McConnell did to Obama and Garland?
I’ll admit that I would. And I would justify it as fighting fire with fire—and not just out of spite, but as the only sensible, non-suicidal strategy when locked in a war with vicious, amoral swine like the GOP. I’d rationalize it by saying that, in this case, the end justifies the means. Of course, that is precisely how McConnell defended what he did: on the grounds that the “greater good” as he saw it—advancing the right wing agenda—excused the use of otherwise inexcusable tactics.
Setting aside issues of who started the arms race, the difference lies only in the specific principles for which one is willing to go to such lengths. McConnell, Trump, and the Republicans have made it clear what “principles” they believe in: greed, racism, xenophobia, contempt for the poor, shameless self-aggrandizement, wanton disregard to the stewardship of the planet, ruthless opposition to democracy and the rule of law, and general authoritarianism.
Let’s leave it to history to judge how that legacy is remembered.