The New York Times’s Peter Baker called this week’s leak of an Alito-penned draft decision overturning Roe v. Wade“one of the biggest earthquakes in American domestic politics in a generation.” (Josh Gerstein and Alexander Ward of Politico broke the story.) No doubt about that.
It’s early days to say the least, but let’s dig into just a few aspects of this rapidly unfolding development, one that promises to consume and reshape US politics for months or years to come, and yet another major turn in what is very clearly right wing autocracy on the march.
+ The bluntness of the Court’s decision.
For years pundits, experts, and others in the SCOTUS peanut gallery predicted that the Court would subtly chip away at Roe rather than bluntly overturning it. The Court has long been signaling a gutting of Roe, a process we have watched slowly but inexorably unfold, with sickening milestones along the way, like Texas’s vigilante anti-choice law passed last September. All the experts thought that pattern of death by a thousand cuts would continue.
So Alito’s opinion in the case known as Dobbs v. Jackson Women’s Health Organization came as quite a shock: a full-throated, balls-to-the-wall extremist screed that could have been written by the most virulent anti-choice radical you can imagine. As the lawyer and writer Jill Filipovic wrote on Substack: “I thought this decision would have a lighter touch, that the Court would functionally overturn Roe without formally overturning Roe. I underestimated their radicalism.”
She wasn’t alone. In Slate, the veteran justice correspondent Dahlia Lithwick writes that if some version of this decision comes to pass, “years of conventional wisdom about the court and its concerns for its own legitimacy will be proved wrong.”
Every single court watcher who spoke in terms of baby steps, incrementalism, or “chipping away” at one of the most vitally important precedents in modern history will have been wrong. Those who suggested the court would never do something so huge and so polarizing just before the November midterms will have been wrong. And the people who assured us that Brett Kavanaugh and Amy Coney Barrett were moderate centrists who cared deeply about the appearance of a nonideological and thoughtful court—well, yeah. They will have been wrong too.
They said Roe would go out not with a bang but a whimper, but when are we going to stop underestimating the awfulness of the Republican Party? I guess around the time Charlie Brown finally succeeds in kicking that football.
The first chance Republicans got to overturn Roe they are doing exactly that, because they don’t care about the will of the majority, they don’t care about optics, they damn sure don’t care about women or basic human decency…..they don’t care about anything except their own power, and they will do whatever the fuck they want to maintain and extend it, and do it as bluntly and as loudly and as crassly as they wish, even if it means lying (to the Senate) or cheating (in an election) or stealing (a seat on the Supreme Court). And if you don’t like it, fuck you.
And that despicable ruthlessness applies both to the Ginni Thomas-brand religious zealots for whom overturning Roe is the Holy Grail, and to the plutocrats who couldn’t care less about abortion, but who have pandered to these Christian dominionists for their own venal ends.
+ The extremity of Alito’s opinion.
“Full-throated” and “evisceration” are two terms widely used to describe Alito’s opinion, which I think is too kind, and implies a cogent argument, which it is anything but. It is, however, certainly full of sneering contempt not only for Roebut for an entire school of Constitutional scholarship, the one that sees the Constitution as a living document and not something to be read like a biblical diktat from Heaven.
By contrast, Alito favors a specious originalism, arguing that “The Constitution makes no reference to abortion,” and that there is no tradition of a right to abortion in American history, but rather “an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.”
So let’s bring back slavery, child labor, anti-miscegenation laws, and men-only voting too! (Don’t worry: someone at CPAC is working on all four.)
He certainly seems to have a badly impaired sense of irony, as when he writes:
This Court cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling the people to move on. Whatever influence the Court may have on public attitudes must stem from the strength of our opinions, not an attempt to exercise “raw judicial power.”
Among the lowlights of this opinion, a possible cake-taker is Alito’s argument that “(Roe) imposed the same highly restrictive regime on the entire Nation, and it effectively struck down the abortion laws of every single State….and it sparked a national controversy that has embittered our political culture for a half-century.”
George Orwell, call your office. So Roe—which gave American women control over their own bodies—was the “restrictive regime” that the government was forcing upon them, not this new reality the Court seeks to unilaterally install in which that control is arrogated by the state, such that it can compel a woman to carry her rapist’s child to term, even if that “woman” is a minor and her rapist is her father or stepfather? And Roe was the source of bitter national controversy, whereas this Molotov cocktail of a decision in Dobbs is going to usher in an era of comity and group hugs?
IMSIYAR. (It Makes Sense If You’re A Republican.)
Incredibly, the right wing has managed to invert the whole concept of “religious liberty” such that the phrase now effectively means that the Religious Right can foist its faux morality on the rest of us, and force us to live by its medieval, mythological rules, but cannot be compelled to extend any such consideration to others’ beliefs or freedoms.
We’ve seen that the justices, not surprisingly, live in a bit of a bubble—the older liberal ones, as well as the reactionaries. But Alito’s screeching diatribe betrays the ugly confluence of that isolation with immersion in the right wing echo chamber.
In a piece for Slate titled “The Supreme Court’s Legitimacy Is Already Lost,” one of the country’s sharpest observers of that institution, Dahlia Lithwick, notes that in 1992, when O’Connor, Souter, and Kennedy affirmed the constitutional right to an abortion in their plurality opinion in Casey—all Republican appointees, by the by—they “knew very well what would happen to the court if it disregarded and disparaged the American public, the Constitution, and itself.”
The Court’s current right wing supermajority either doesn’t know or has zero fucks to give.
(I)n addition to Alito’s sneering references to “abortionists” and eugenics and his gleeful mockery of the authors of both Roe and Casey, anyone who believed the court would pretend to have any solicitude whatsoever—for women, for public opinion, for its own reputation as a moderate branch—was well and truly kidding themselves. This draft opinion, whatever may be done to it in the days to come, is Exhibit A for anyone who believed that time or history or respect for their colleagues or the justices who came before them would moderate the five justices in this current majority, a majority that ought to know it stole its way into a majority but again refuses to even feign self-moderation in the face of that fact. We knew this when Texas’ S.B. 8 law banning abortion after six weeks was decided on the shadow docket in September, and when the court let it stand again this winter. We knew it when we watched the Dobbs arguments last fall. Roe had already been effectively overturned then—we have just had trouble catching up.
+ States’ rights, shmates’ shmites.
Alito writes: “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”
“Leave it up to the states!” has been the Republican rallying on this matter since at least 1973. If Roe falls, it won’t affect abortion rights in Massachusetts or California or anywhere else the citizenry collectively wants it, we were assured by ostensibly moderate conservative pundits. There are serious problems with that theory, but never mind, because Republican adherence to it was always disingenuous. Even before the Dobbs decision becomes law, we are already seeing them beginning to push for federal legislation banning abortion nationwide.
The morning before the leak broke, the Washington Post reported that “Leading anti-abortion groups and their allies in Congress have been meeting behind the scenes to plan a national strategy that would kick in if the Supreme Court rolls back abortion rights this summer, including a push for a strict nationwide ban on the procedure if Republicans retake power in Washington.”
It’s almost as if everything the GOP has said, going back decades, has been flat-out lies, isn’t it?
+ Damage to the court’s Image—boo hoo—and the deceit of Gorsuch, Kavanaugh, and ACB.
As Politico noted, “No draft decision in the modern history of the court has been disclosed publicly while a case was still pending.” Whoever leaked it (and the prevailing theory is that it was a right wing clerk, to pre-emptively lock the justices into the decision), it speaks to the firebreathing volatility of the present moment.
But it’s very telling that the leak is the thing that conservatives like David French, late of the National Review, are most upset about—and French counts as a relatively reasonable conservative, and anti-Trump—along with the damage to the Court it will cause. Indeed, clutching their pearls and howling about the leaker is a literal GOP talking point, according to an internal strategy memo obtained by Axios.
So let’s be clear. The damage to the Court was done by duplicitous right wing justices who did an Apache dance before the Senate over stare decisis during their confirmation hearings. That in turn has been part of a broader self-sabotage of the Court’s credibility by its conservative members and by the right wing movement in general, with Mitch McConnell in the role of mustache-twirling ringleader.
Collins and Murkowski both issued statements saying that they are shocked (shocked!) that Gorsuch & Kavanaugh & Barrett blatantly lied to them. Wow. In other news, apparently you can be a US Senator and be as gullible as a newborn—or as dishonest as a fucking Republican politician.
So forget the leak. The real tragedy here, I humbly submit, has to do with a rather larger issue of human rights in America—again, eloquently stated by Dahlia Lithwick by way of demolishing the Frenchy position:
The court’s staggering lack of regard for its own legitimacy is exceeded only by its vicious disregard for the real consequences for real pregnant people who are 14 times more likely to die in childbirth than from terminating a pregnancy. The Mississippi law—the law this opinion is upholding—has no exception for rape or incest. We will immediately see a raft of bans that give rights to fathers, including sexual assailants, and punish with evermore cruelty and violence women who miscarry or do harm to their fetuses. The days of pretending that women’s health and safety were of paramount concern are over.
PS Mr. French believes that the decision to overturn Roe would represent “a restoration, not a rupture of our constitutional fabric….Roe was the rupture, and our nation has been dealing with the legal and political consequences ever since.” He has also said he thinks dispensing with Roe will cool, rather than inflame, national tensions on the topic.
Good luck with that, Dave.
+ The towering significance of McConnell’s crime.
Every day and in every way, the repercussions of Mitch McConnell wantonly, despicably, hypocritically violating the spirit of the US Constitution and blocking even a hearing for Merrick Garland continue to reverberate. Also: the disastrous decision of the Democratic Party not to raise holy hell about it at the time, born of overconfidence re an imminent Hillary victory.
Fool me once.
+ Anything from the ivory tower?
Eagerly awaiting Ross Douthat’s column telling American women why this is best for them.
+ Conservatives and radicals.
For the second time in a month (the previous one being on the subject of Ukraine), I am shocked to find myself agreeing with Bret Stephens, Douthat’s wiser fellow conservative on the Times’s opinion page, who notes that overturning Roe is a radical, not conservative move. Notably, Stephens disagreed with the reasoning behind Roe in ’73, but argues that almost fifty years later, reversing it will do more damage. While his argument is grounded mostly in the arcana of Constitutional law, rather than respect for a woman‘s reproductive rights, or human rights full stop, he’s still on the side of reason, decency, and common sense.
Bret, forget what I said before: you are invited to the bat mitzvah again.
+ Only the beginning.
As I have written before, joining a loud chorus, this ain’t just about abortion: it’s about a wide-ranging rollback of civil rights and the ominous clatter of a right wing autocracy on the march.
Heather Cox Richardson writes:
And so here we are. A minority, placed in control of the US 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.
Alito’s weak-kneed attempt to wall off this decision from other potential rollbacks of civil rights is a joke. (“We emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”) Emboldened by this long sought victory, the right wing is going to extend it to try to outlaw IUDs, IVF, the morning after pill, and if it can pull it off, contraception itself. (God willing they will stop short of masturbation.) And next they will come for all those other unenumerated rights: the ones laid down in Obergefell, Loving, even Brown v. Board of Education.
Doubt it? Which of us, then, is the naïve one here?
It reminds me of Scalia’s opinion in DC v. Heller (2008) asserting an individual’s constitutional right to own a private firearm under the Second Amendment, incorrectly in my view, but still a decision that explicitly said the government can regulate those weapons. That last bit has been conveniently forgotten and trampled upon by America’s firearms fetishists, and the anti-choice cabal (overlapping a lot with those Yosemite Sam gun nuts) will do the same with Alito’s absurdly flimsy qualifier.
+ Careful what you wish for.
For Democrats and other progressives, the optimistic view is that this Supreme Court decision-to-be represents one of the few ways the GOP could blow the midterms, which all the smart money has it tipped to win in a historic red wave. It sure seems to be trying.
Insert “dog that caught the car” analogy here. Let’s hope it backs over it.
In a piece for The Bulwark, Charlie Sykes writes:
For years the GOP has campaigned against Roe, but without any realistic expectation that it would actually be overturned. Republicans are keenly aware that polls have consistently shown that while opinion on abortion itself is mixed, a strong majority of voters opposes overturning Roe. Just 30% of Americans say they’d like to see the Supreme Court completely overturn its Roe vs. Wade decision, with 69% opposed—a finding that’s largely consistent both with other recent polling and with historical trends.
While abortion has been a highly useful wedge issue for the GOP, the passionate part of its base that is fired up by it is not representative of the larger population, the roughly 7-in-10 American majority that supports some sort of abortion rights, and might work against the GOP in a general election.
Last December, Sykes wrote, “In a rational political world, legislators would craft compromises that would reflect the various shades of public opinion. But, as you may have noticed, we do not live in that world.”
In this environment, the extremes will define themselves by their hostility to compromises of any sort.
I imagine it playing out like this: J.D. Vance comes out for a ban after 6 weeks; Josh Mandel calls for a ban after 2 weeks; MTG declares that all true conservatives support a total ban; and Madison Cawthorn insists that the true pro-life position demands the death penalty for doctors who perform the procedure.
Sykes predicts—and I’m not betting against him—that every race at every level “now becomes a referendum on abortion,” from statehouses and governorships to Congress and the presidency. “In a sane world, this debate could actually be healthier than what we have now. But does anyone think that we live in a world that particularly values sanity?”
(Sykes also believes that “the schism between red and blue America will become wider and starker. While red states impose criminal penalties, blue states will expand taxpayer funding. American women will be living in two very different countries.” Except they won’t, because Republicans are planning a nationwide ban on abortion, full stop.)
So will this decision really galvanize the left? Will American women—and men—rise up in outrage? Or are there too many self-loathing Phyllis Schlaflys and Anita Bryants and Marjorie Taylor Greenes out there?
Regardless, the Democratic Party damn sure ought to make this the centerpiece of its campaign. If it can’t straighten out its traditionally piss-poor messaging and mobilize voters off this, maybe it deserves to lose.
The leadership does seem to recognize that. In a joint statement released soon after the Politico story broke, 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.”
Damn straight. Let’s not let them avoid it.
+ And lastly—Trump. AYFKM???
At the end of the proverbial day, I keep coming back to the gobsmacking fact that somehow we let Donald Trump decide abortion policy for the United States. Donald Trump!
The abortion wars have been raging for decades. It is bitterly ironic that it was this grotesque cretin—himself a strong argument for abortion—who should be the one to deliver the final coup de grâce. But thanks to Mitch McConnell, Democratic meekness, Tony Kennedy looking out for his kid, and just plain dumb luck, Trump was allowed to put THREE justices on the Supreme Court, fully a third of that bench. Three!!!
The members of America’s religious right hitched their wagon to a thrice-married, serial adulterer and proud sexual predator, the least pious man imaginable, a walking affront to everything their faith claims to be about……and it paid off, both for them and for their plutocratic allies, who as we noted above, don’t really give a shit about abortions (except when their mistresses need them), but are eager to weaponize it as a wedge issue to energize the reactionary base.
As I have written before, how many abortions do you think Trump himself has paid for in his long, misbegotten, teenage beauty contestant-harassing, porn star-rawdogging life? (Or more likely, as Samantha Bee quipped, promised to pay for and welshed on?) I’ve always hoped one of those women would come forward, but at this point I think MAGA Nation would just shrug and rationalize it away like everything else.
It is beyond irony that this is the man we have allowed to determine what reproductive rights American women would have. As a result, the US may soon have more restrictive laws on abortion than Catholic countries including Italy, Ireland, and Mexico, where the systems are far from perfect, but still far more humane than what looms here.
Once again we are reminded that elections have consequences. Oh, do they ever. Even the ones we win in the popular vote, but lose in the electoral college (with a little help from the Republicans’ friends in Moscow).
But her emails, amirite?
+ Bad moon rising.
In closing, everything about the Alito draft confirms what ought to be excruciatingly obvious by now: the American right is playing rollerball while the middle and left are playing Candyland. The right means to seize power in the United States and take us back to a pre-New Deal, pre-feminist, retrograde America where white Christians didn’t have to worry about offending anybody with the n-word, or uppity women who thought they should be paid the same as men, or having their political power challenged in any way. The government they mean to install will certainly not be one that cares about a woman’s right to control her own body or make her own health care decisions. And they are willing to do just about anything to achieve that control: get behind Donald Trump, ally with Vladimir Putin, overturn an election, or throw democracy out the window to make sure elections no longer matter.
If the Alito draft is a slap in the face that wakes us up to that harsh reality, it will be for the best. Because the sooner we realize it, the better off we will be in trying to stop it, if it’s not already too late.
Previous King’s Necktie posts on the Supreme Court and/or abortion:
The Unkillable Zombie of States’ Rights – December 9, 2021
Autocracy on the March – September 10, 2021
Smash the Patriarchy, 2020 Edition – March 7, 2020
The Ghost of Merrick Garland, Part II – October 10, 2018
“Blessed Be the Fruit”—Patriarchy, Tyranny, and the Supreme Court – August 13, 2018
Five Blind Mice – July 11, 2018
The Ghost of Merrick Garland – November 25, 2017