EVERYTHING. IS. AT. RISK.

Remember. There is a single steadfast rule for being alive right now, and it is:

Do not bet against the dumbest possible outcome.

Everything is at risk.

Charles P. Pierce, who “has a way with words,” puts the situation well: “This was not an earthquake. It was Krakatoa. The reputation of the Supreme Court lies in ruins at the bottom of the sea. The lives of millions of American women have been immiserated. The basic topography of the American republic has been rearranged. Again.”

In 1954, when he was crafting the decision in Brown v Board of Education, Chief Justice Earl Warren worked long and hard to ensure that the decision was issued with the support of a unanimous court - 9-0.

All the sitting justices had been nominated for their positions by presidents of both parties who had won the popular vote and held office by majority.

If the draft opinion overturning Roe v Wade becomes the law of the land, that will be the decision of a closely-divided court - 5-4.

All five of the justices signing the decision were nominated for their position by the last three Republican presidents, two of whom failed to win a majority of the popular vote.

Minority rule, which has been the goal of “movement conservatism” since it was invented by William F. Buckley 65 years ago, has finally arrived.

Minority rule on the court, with a majority placed there by men who held office by a minority. Minority rule in the Senate that approved them, with the 50 Democrats representing 58% of the population, while the Republicans who approved four of the five justices who will sign this decision represented 42% of the country. The fifth justice, Clarence Thomas, was confirmed in the Senate by a 52-48 vote, in which the 52 Senators voting in his favor represented a bare 51% of the national population. Chief Justice John Roberts was nominated to his position as Chief Justice by George W. Bush, one of the two presidents who failed to win office by a popular majority. Thus, all six of the Republican Justices are in their positions through the workings of minority rule.

As another observer noted, “It’s worth pointing out here that in 1973, when women couldn’t even get a credit card without the permission of their husband or father, Roe was decided 7–2, with five Republican-appointed justices in support. The world has become profoundly more pro-choice than it was in 1973; even Catholic countries like Ireland have legalized abortion. Yet here in America, the clock is spinning backwards with stunning and terrifying speed.”

In the draft opinion, Alito writes: “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.”

If you believe that, you likely also believe the sun will rise in the west tomorrow morning.

Two of the Trump Justices declared during their hearings that they strongly supported the concept of stare decisis, with particular weight in favor of that placed with Roe v Wade. In other words, they lied through their teeth to get confirmed. Clarence Thomas also did this, and then proceeded to vote in favor of overturning Roe in every abortion decision that came before the court after he joined it.

Justice Alito came out pretty clearly in his answers that he would vote to overturn if the issue came before the court in a manner that brought up the question of over-turning it, though he also referred to the court having to take into consideration the reliance placed on the original decision; he used nearly the exact language he uses in this decision in his discussion of Roe and the role of stare decisis.. Justice Barrett was pretty clear in her questioning, when she went on at length aruing over the specific definition of the term “settled precedent,” stating that only precedents such as Marbury v Madision or Brown v Board of Education were such precedents “because no one questions them today,” and specifically named Roe v Wade as a precedent that did not meet that definition and was thus open to being overturned.

Thus, there are three justices who have lied about their belief in stare decisis, and have now acted to show their true beliefs. There are two justices who have declared that stare decisis should only be honored with regard to a limited number of court precedents, and also declared their openness to overturning any precedent that did not meet the high bar set in academic legal literature for inclusion in any list of “settled precedent.”

With a court majority of “originalists,” who do not believe that the Constitution is open to interpretation on any grounds other than how the specific words in the document were understood by the white men who wrote them in 1787, all the court decisions made using the Fourteenth Amendment’s Establishment Clause to make the rights as defined in a modern interpretation of the Constitution apply to the states are - to this five justice bare Republican majority (and we can include Chief Justice Roberts with the other five on many of these issues) - no longer “settled precedent,” and are thus open to being overturned when a case is brought before them that implicates the decision in any way. I point out that the case does not have to directly deal with the precedent by the fact that the Mississippi law that the five movement conservatives have used to make this decision did not directly attack Roe v Wade, yet they used to make their own attack.

Thus, everything is at risk. Everything decided through the use of the Fourteenth Amendment’s Establishment Clause to allow a decision that was made with a modern interpretation of the Constitution that was not limited to the “original meaning of the words” is at risk.

That is pretty much every significant Supreme Court decision since 1936.

Social Security. The right to unionize. The right to regulate interstate commerce. The right to protect the environment. That’s just for starters.

Alito may say this decision has no effect on other precedents, but we already know Samuel J. Alito is a liar who violated his oath to tell the truth, the whole truth, and nothing but the truth in his answers to Senators during his confirmation.

Alito is a liar. Thomas is a liar. Roberts is a liar. Gorsuch is a liar. Kavanaugh is a liar. Barrett is a liar.

Senator Murkowski - who voted to approve all these justices except Thomas, on the basis of their stated support of stare decisis applied to Roe - issued a statement this morning that the draft decision is so sweeping that it calls into question all her beliefs about the court.

As well it should, Senator, as well it should!

Senator Collins specifically stated that she supported Brett Kavanaugh’s nomination and voted in favor of placing him on the court after he made his lengthy statement supporting stare decisis as applied specifically to Roe.

Collins issued this statement this morning: “If this leaked draft decision is the final decision and this reporting is accurate, it would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meetings in my office.”

Susan Collins wins Dumbest Idiot Of The Day. Again. I am only slightly sorry for her when I think of all the Republicans I have known since 1980 - particularly women - who when I asked them why they were voting for candidates who were dedicated to overturning Roe, all said “Oh, that can’t happen now.”

If just those two Senators had been willing to look at the truth about politics as practiced in the party of which they are members, there would be a different court.

I say that, because politics as practiced in the Republican party since 1980 has been based on specific lies. Lies made under oath in order to obtain positions, by people who knew if they told the truth regarding their beliefs and desires, they would not be approved.

This was reported in the Washington Post:

“Leading antiabortion 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.

“The effort, activists say, is designed to bring a fight that has been playing out largely in the courts and state legislatures to the national political stage — rallying conservatives around the issue in the midterms and pressuring potential 2024 GOP presidential candidates to take a stand.

“A group of Republican senators has discussed at multiple meetings the possibility of banning abortion at around six weeks, said Sen. James Lankford (Okla.), who was in attendance and said he would support the legislation. Sen. Joni Ernst (R-Iowa) will introduce the legislation in the Senate, according to an antiabortion advocate with knowledge of the discussions who spoke on the condition of anonymity to discuss internal strategy. Ernst did not respond to a request for comment.

“One top advocate, Marjorie Dannenfelser, president of the antiabortion group Susan B. Anthony List, has spoken privately with 10 possible Republican presidential contenders, including former president Donald Trump, to talk through national antiabortion strategy. Most of them, she said in an interview, assured her they would be supportive of a national ban and would be eager to make that policy a centerpiece of a presidential campaign.”

Believe. What. They. Say.

Everything. Is. At. Risk.

UPDATE:

The following is from Talking Points Memo:

“Alito extended his argument about abortion rights not being entrenched in history to other key civil rights.

“Some of the landmark cases he cites include ​​Lawrence v. Texas (which struck down sodomy laws), Obergefell v. Hodges (which legalized same-sex marriage), Griswold v. Connecticut (which granted access to contraceptives), Turner v. Safley (which granted the right to marry as a prison inmate) and Loving v. Virginia (which legalized interracial marriage).

“These attempts to justify abortion through appeals to a broader right to autonomy and to define one’s ‘concept of existence’ proves too much,’” he writes. “Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the link. None of these rights has any claim to being deeply rooted in history.”

“Alito makes a point to distinguish those cases from Roe on the basis that none of those cases “involved the critical moral question posed by abortion.” He pauses many times in the opinion to repeatedly assert that the nullification of abortion rights is not a defacto primer to the inevitable death of other privacy rights.

“And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right,” he writes. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

“But experts are skeptical. Many rights, like access to contraception and same-sex marriage, exist in the same universe of privacy and personal autonomy.

“It’s also common practice for anti-abortion crusaders to assure their audience that abortion is different, singularly objectionable, and that it’s prohibition does not endanger other settled rights. But much like within the abortion debate itself, that overton window tends to shift with the political tides. 

“Already, the insistence that knocking down Roe is just a return to states’ rights has mutated into something else within anti-abortion circles: the conviction that abortion be outlawed nationwide.”

Thanks to all the paid subscribers who support That’s Another Fine Mess. For those who have recently signed up for free subscriptions, please consider joining them. It’s cheaper than a Large Vente at Starbucks, and it really does keep the lights on here. Thank you for your consideration. You don’t get what you get here, anywhere else.

Comments are for the paid subscribers.