AN EMBOLDENED MAJORITY

Something fundamental about the Supreme Court has changed in recent months. It is not simply tthe presence of the conservative supermajority. What has become increasing striking throughout this term of the court is just how emboldened that conservative supermajority is. The six justices are now willing to take on a number of deeply divisive culture-war issues, while acting in a blasé manner with regard to making major decisions via the Court’s shadow docket. As the recently-leaked draft decision overturning Roe v Wade and Planned Parenthood v Casey, they are now open to making rapid, profound changes to long-standing precedent. The Roe draft demonstrated to anyone who still had doubts about the revolutionary nature of this conservative bloc and what they could do. The draft is evidence of the brazenness of this

The draft claims the justices cannot predict the consequences of their actions and, even if such a prediction were possible, they shouldn’t care what the public thinks anyway. The job of the Supreme Court, Alito states in the draft, is to say what the law is, not to care about what the people think, much less what the people think the Constitution means.

That this conservative majority could make such an argument - that the five justices could believe such an idea - is the result of our grievous polarization. This majority knows their decision will be celebrated by the conservative legal movement and the leaders of the Republican Party.

The draft rehabilitates the 19th-century physicians who sought to criminalize abortion, suggesting they were motivated by an interest in protecting innocent fetal life rather than by nativism or racism. One footnote goes so far as to suggest those who fought for the right to choose abortion were motivated by racism, arguing that Roe produced a result in which fewer children of color were born. It emphasizes that abortion is completely different from any other constitutional right because it involves taking a life. These justices are not merely assuring the demise of abortion rights; they are delighting in their decision.

What is maddening to me is that this decision is the result of the people who claimed to be pro-choice, who refused to consider the importance of the coming supreme court vacancies that could reasonably be foreseen in 2016, and refused to support Hillary Clinton for president. Those left “progressives” who either didn’t vote or write in Bernie Sanders’ name in numbers sufficient to give Trump his win in Michigan that ensured he would take office are even more responsible for this decision than all the pro-life protesters of the past 40 years, because they opened the door to Mitch Mcconnell putting the justices he knew would “do the right thing” on the court. Those “progressives” like Susan Sarandon who claimed Trump taking office would “speed the revolution” and that “the court doesn’t matter” need to shut their fucking mouths now and forever. Those alleged “progressives” need to be shunned now and forever.

After Trump was elected in 2016, the destruction of Roe v. Wade seemed likely. When Kavanaugh replaced Anthony Kennedy, the major swing vote in abortion cases, the odds of a reversal went higher. And when Amy Coney Barrett replaced Ruth Bader Ginsburg, creating a bulletproof six-justice conservative majority, the end of abortion rights was only a matter of the right case being accepted by the court.

Even with all that, the speed with which this conservative majority has moved to reverse Roe is astonishing. The right-wing majority’s radical repurposing of the so-called shadow docket to set precedents and nullify constitutional rights rather than simply deal with time-sensitive matters foreshadowed this outcome. In the Court’s religious-freedom decisions related to the coronavirus pandemic, and choosing to allow Texas to nullify the right to an abortion, it is easy to see the outlines of this new legal regime: On the grounds that it constitutes a form of religious discrimination, conservatives will be able to claim an exemption from any generally applicable rule they do not wish to follow, while imposing their own religious and ideological views on those who do not share them. Although the right-wing justices present this rule in the language of constitutionalism, they are simply imposing their ideological and cultural preferences on the rest of the country. Roe itself left those opposed to abortion free not to have one; striking it down allows states to prevent those seeking abortions from obtaining them.

The court did not have to take this Mississippi case. There was no lower court split on the constitutionality of 15-week bans and thus no issue for the court to rule on regarding the law itself. The anti-choice movement had not invested much in such laws. However, the conservative majority was not going to sit around and wait; nothing about this seems particularly hard for these justices. There was no soul-searching required. It would not be surprising to find out that Alito had most of the draft sitting in a file on his computer dating from the moment he joined the court, in anticipation of being able to do what he had been nominated for 20 years ago.

This is draft suggests that there can be no right to abortion because states were criminalizing abortion when the relevant constitutional provision, the Fourteenth Amendment, was ratified.

Aside from rights specifically mentioned in the text of the Constitution, Alito argues, only those rights “deeply rooted in the nation’s history in tradition” deserve its protections. This is as arbitrary as it is lawless. Alito is saying there is no freedom from state coercion that conservatives cannot strip away if conservatives find that freedom personally distasteful. The rights of heterosexual married couples to obtain contraception, or of LGBTQ people to be free from discrimination, are obvious targets.

Alito claims to be sweeping away one of the great unjust Supreme Court precedents, such as Dred Scott v. Sanford, which held that Black people had no rights white men were bound to respect, or Plessy v. Ferguson, which upheld racial segregation. But in truth, Alito is employing the logic of Plessy, allowing the states to violate the individual rights of their residents in any way their legislatures deem “reasonable,” as the opinion in Plessy put it.

In Plessy, Justice Henry Billings Brown held that Louisiana’s segregation law, as far as the Fourteenth Amendment was concerned, “reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and, with respect to this, there must necessarily be a large discretion on the part of the legislature.” Alito has applied this same logic to abortion—but not just abortion—arguing that in the future, courts should defer to state legislatures “even when the laws at issue concern matters of great social significance and moral substance.” There’s no doubt that the Louisiana legislature felt the 1890 Separate Car Act was such an issue.

Plessy at its absolute core, is a states’-rights case, in which the Court envisioned a federalism so weak, so toothless, so bereft of substance that the federal government had no legitimate role in protecting Black people from states imposing racial segregation upon them. Alito’s draft does the same thing, envisioning a federalism so weak, so toothless, so bereft of substance that the federal government has no legitimate role in protecting women from states imposing forced births upon them.

Alito specifically stresses that other precedents are not on the chopping block, but it’s unclear why that would be: the same logic applies to same-sex intimacy and contraception, as well as interracial marriage, which were outlawed at that same point in time.

Writing in The Bulwark last December, conservative legal scholar Kimberly Wehle stated, “In a series of cases beginning in the early 1920s, the Court carved out a protected space for family, marriage, and children that the government is constrained from regulating. A rollback of Roe could split this sphere open if the conservative theory that implied rights are constitutionally invalid takes hold, and states begin passing draconian laws that creep into other areas of intimate personal life.”

The draft concludes that the issue of abortion should be decided by voters, not courts. But it also distinguishes abortion from other rights the Court has protected by stressing the value of fetal life. Should that language appear in the final opinion, it will be read by anti-abortion-rights leaders as an invitation to bring a case before the Court that asks the court to hold that the Constitution recognizes the personhood of the fetus; that would make abortion unconstitutional in blue as well as red states. Should that happen, the issue would be out of the hands of voters in all states for a very long time to come.

This draft accuses the Roe Court not just of being wrong but of moving too fast, with too little justification, and further inflaming the nation’s abortion politics. This is more than a little ironic: the conservatives may scold their predecessors for unnecessarily dividing the nation on abortion, but they are now doing the same thing themselves.

If you are have a young daughter, she will grow up in a world where she does not have the right to choose when and where she gives birth, a world in which nothing restrains a state from declaring her womb its property, with all the invasive authorities that implies. Let us call it what it is: “Pro-Life” is not in favor of life; it is a political position that favors State-Required Forced Birth, a position that says the beliefs of one group can be unilaterally imposed on those who disagree, with the force of law. This is the opposite of what “conservative thought” is supposed to be about, the opposite of being pro the individual’s choice, of reducing the role of government in the lives of citizens.

That is the significance of the draft Supreme Court opinion. The justices can change their minds before judgments are issued, but their opinions are drafted after they’ve taken an initial vote on the cases themselves. The draft likely reflects the direction of the final decision, even if the scope of that decision changes. Gorsuch could even conclude that he was not on board with the sweeping radicalism of Alito’s overthrow of Roe, and switch his vote to stand with Chief Justice Roberts as an “institutionalist.” But it is unlikely a lawyer brought up in “movement conservatism” would have the stomach for the kind of rejection he would get from his former political allies if he did so.

But other rights that Americans now take for granted could easily be excluded by this capricious reasoning.

American life will now be guided by the arbitrary vicissitudes of conservative cultural identity, gleaned from Fox News, and by the justices’ inclination to shape their own views to conform to that identity. Aided by voting restrictions and partisan gerrymandering, the conservative movement will argue that its most coercive mandates have popular legitimacy, no matter how much of the country opposes them. Politicians who are immune to popular majorities have no reason to heed them. But Republicans hardly need such advantages to prevail. One of the baffling mysteries of the past five years is why a movement so effective at the work of democracy is so dedicated to ending it.

The conservative movement has been working toward this victory for decades, and it has been made possible not simply by its determination and a few fortunate accidents, but by the haplessness of its opponents. Many in the center of the Democratic Party have been paralyzed by the belief that they might “do popular stuff” and coast to victory without having to get their hands dirty fighting the opposition, while its left-wing critics too often forget that democracy is an ongoing process, not a battle that ceases after casting the right vote once or twice. In both cases, the right has been fortunate in having opponents who argue themselves into complacency.

A movement will eventually emerge to oppose the criminalization of abortion and the despotisms this draft would create; some of its leaders may be alive today. Whoever they are, they will understand, just as the right-wing activists who worked decades for this moment do, that the freedoms enjoyed by one generation can be stripped away by another.

Alito, like the five other conservative justices, was placed on the Court by the conservative legal movement for the purpose of someday handing down this decision. These five justices are doing what they were put there to do.

There is indeed a toxic spectacle and a betrayal going on here, but it isn’t the leak. It’s the betrayal of democracy by McConnell’s Republicans and the toxic spectacle of the Roberts court aiding it.

The reported 5-to-4 split on the draft shows that this cataclysmic ruling would be forced on the public by the narrowest possible majority. This means the ruling is possible only because of the seat on the court McConnell and his Republican colleagues effectively stole by refusing for 293 days to confirm or even consider President Barack Obama’s duly nominated candidate, Merrick Garland.

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