At the Heartbreak Hotel on Desolation Row

Let’s consider the Supreme Court’s radical right Gang of Five. They’re trying to take America back to 1953 or so, if not earlier, ignoring what the majority of Americans want.

Three of them (Gorsuch, Kavanaugh and Coney Barrett) are the only three justices in US history who were both (1) selected by a president (D____ T____) who lost the popular vote and (2) approved by a group of senators who represented less than 50% of American voters. (That particular president took office only because the national news media was fixated on the email practices of the Democratic candidate and the director of the FBI broke his agency’s own rules by releasing “news” that harmed the Democrat a few days before the election.)

One (Gorsuch) took his seat on the Court after Senate Majority Leader Mitch McConnell blocked consideration of Barack Obama’s nominee, Merrick Garland, for a record 293 days, saying the upcoming election precluded any talk of a nominee.

McConnell got another one of them onto the Court (Coney Barrett) when he reversed the “rule” he’d invented for Garland. She was nominated by T____  just 38 days before the 2020 election (when votes were already being cast) — another record.

The fourth member of the Gang of Five (Alito) was nominated by a president (George W. Bush) who lost the popular vote the first time he ran. He might have also lost the Electoral College if the five Republicans on the Supreme Court had allowed Florida to keep counting votes (just think, President Gore would have meant leadership on the climate crisis and no Iraq war).

Alito is the author of the draft decision overturning Roe v. Wade, which he called an “egregiously bad” decision. He apparently came to that conclusion after his 2006 Senate hearing, during which he told the US Senate that he’d look at abortion with an “open mind”.

The fifth justice (Thomas, nominated by George. H. W. Bush) ascended to the Court after lying to the US Senate about his bad behavior (the senators didn’t believe Anita Hill). He was the first Supreme Court justice approved by senators from states representing less than half the country. Although his wife openly supported the January 6th insurrection, he proceeded to cast the only vote in favor of keeping insurrection-related emails secret.

All five of the Gang are Catholics, as is the sixth Republican on the Court (Chief Justice Roberts, the second justice chosen by Bush #2). None of them told the Senate they would overturn Roe v. Wade if given the chance.

Meanwhile, the Republican justices have been making our politics less democratic, less representative of the nation as a whole, by allowing more money into politics, weakening the Voting Rights Act and refusing to do anything about the rampant gerrymandering of congressional districts. All of this has made it less likely Democrats will be elected and much less likely that conservative institutions like the Court, the Senate and the Electoral College will ever be made more responsive to public opinion.

In other words, we’re screwed.

The American journalist Alex Pareene explains why, furthermore, electing more Democrats might not make much difference:

One of the more consequential contradictions of the Democratic Party is that the vast majority of its staffers, consultants, elected officials, and media avatars, along with a substantial portion of its electoral base, are institutionalists. They believe, broadly, in The System. The System worked for them, and if The System’s outputs are bad, it is because we need more of the right sort of people to join or be elected to enter The System. . . .

Institutionalists, in my experience, have trouble reaching an anti-system person, because they think being against The System is an inherently adolescent and silly mindset. But believing in things like “the integrity of the Supreme Court” has proven to be, I think, much sillier, and much more childish.

In the beginning of Joe Biden’s presidency a lot of very intelligent people tried to come up with ideas for how to change the Supreme Court, which is poised to spend years eroding the regulatory state and chipping away at civil rights. Expand it, perhaps. Or marginalize it. President Joe Biden, a committed institutionalist, formed a commission of legal scholars—from across the ideological spectrum, of course—to investigate what ought to be done about it. They failed to come up with any answers. “Lawmakers,” the commission wrote, “should be cautious about any reform that seems aimed at the substance of Court decisions or grounded in interpretations of the Constitution over which there is great disagreement in our political life.” You might be mad at the Court because of the decisions it produces, but it’s essential that everyone still trusts the processes that led to them.

This was a white flag. I think some people in the White House have some sick hope that the end of Roe will galvanize the midterm electorate. Something like that may indeed happen. But if they wish to understand why the president has been bleeding youth support for the last year they should try to imagine these young people (and “young”, at this point, has expanded to like 45) not as the annoying and hyper-engaged freaks they see on Twitter every day, but as ones they don’t see anywhere, because, having been urged to pay furious attention by people in the party, they discovered that those people had absolutely no realistic plans to overcome entrenched, systemic obstacles to progress. . . . 

The legitimacy crisis is that our institutions are illegitimate. For my entire adult life, beginning with Bush v. Gore, our governing institutions have been avowedly antidemocratic and the left-of-center party has had no answer for that plain fact; no strategy, no plan, except to beg the electorate to give them governing majorities, which they then fail to use to reform the antidemocratic governing institutions. They often have perfectly plausible excuses for why they couldn’t do better. But that commitment to our existing institutions means they can’t credibly claim to have an answer to this moment. “Give us (another) majority and hope Clarence Thomas dies” is a best-case scenario, but not exactly a sales pitch.

Unquote.

Remember the 9th Amendment: The Legal Basis for Roe v. Wade

The first ten amendments to the US Constitution are known as the Bill of Rights. We’ve all heard of the 1st amendment (free speech, separation of church and state, etc.), the 2nd amendment (we can own muskets in case the British come back) and the 5th (what you can “take” when they ask you an embarrassing question). But hardly anyone knows about the 9th amendment. We should though, because this is what it says:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

This amendment made obvious sense, since it would have been impossible for the authors of the Constitution to list every right people have (e.g. the right to brush your teeth, the right to hold stupid opinions, the right not to watch college basketball in March). And some obvious rights are hardly worth mentioning, like the right to make important decisions for yourself or the right to privacy in the conduct of your daily affairs.

Yet certain members of the Supreme Court, all of whom went to law school, are forgetting about this particular amendment (even though it’s been around since 1789).

I have no legal training. I haven’t read the 1973 opinion in Roe v. Wade or the 1992 opinion in Planned Parenthood v. Casey, the two principal cases in which the Supreme Court decided that women should usually be able to end their pregnancies. I haven’t read this week’s draft opinion in Dobbs v. Jackson Women’s Health either. That’s the opinion that will overturn Roe and Casey if it becomes official. It’s also the opinion that would theoretically allow a future Congress to make abortion illegal in the whole country.

Yet most people would agree that if a woman can find a doctor who’s willing and able to perform a recognized medical procedure and the woman has the necessary health insurance or can afford to get it done, whether or not she has the procedure is nobody else’s business. Whether that’s because all of us have a right to privacy, a right to make important decisions for ourselves or a right to control our own bodies doesn’t make any difference. None of this should be controversial.

The five most reactionary Catholics on the Supreme Court apparently think it is. They don’t see any mention of abortion in the Constitution. They don’t see any specific reference to personal privacy. On that basis, they think it’s fine for the government to interfere with a woman’s decision to end her pregnancy.

But I’m wondering why the hell a woman shouldn’t be allowed to end a pregnancy if she wants to.

The only reasonable basis for controversy is that fertilized eggs often turn into fetuses and fetuses often turn into babies. It’s “often”, because maybe two-thirds of fertilized eggs don’t result in a birth (one study says it’s more like 50%, but it’s still a significant percentage). That’s not because of abortions; it’s because of the vagaries of human physiology. Pregnancy is a complex process and things often go wrong.

But assuming all goes well, pregnancy usually lasts around 40 weeks (the normal range being between 37 and 42 weeks). There is no point at which a fetus officially becomes a “baby”; doctors call it a “fetus” until it’s born. But doctors typically consider 24 weeks to be the point of potential viability, when an infant can theoretically survive outside the womb. Sadly, for “extreme pre-term” infants, survival isn’t guaranteed at all.

There was no way in 1973 for the Supreme Court to set an exact limit on when abortions are allowed. The only question was where to put the rough limit. They didn’t want to make it too soon or too late. Too soon would interfere with a woman’s right not to become a mother. Too late would interfere with an imminent birth. So the majority on the Court decided that women have a right to end their pregnancy until the fetus can survive outside the womb. Medical science said that this “potential viability” occurs after 24 to 28 weeks of pregnancy.

The Los Angeles Times quotes a law professor who points out that when Roe v. Wade was decided, “there was no Republican-Democrat divide on abortion. In a poll taken shortly before [the decision], 68% of Republicans and 58% of Democrats said the decision to have an abortion should be made by a woman and her physician” (the Democratic percentage was probably lower because Catholics tended to be Democrats back then).

So, after Roe v. Wade, states made laws allowing abortions before viability; some more conservative states specified 20 weeks. Today, according to the Kaiser Family Foundation, “abortions at or after 21 weeks are uncommon, and represent [only] 1% of all abortions in the US”. According to US News, 94% of abortions are performed at or before 13 weeks.

Unfortunately, Roe v. Wade was the catalyst for the Christian Right to get involved in politics. They got organized and argued that a fetus has a right to be born, even if it’s a day old. They have the right to hold that opinion (see the 9th amendment). The issue is whether that opinion should be made into law. If they really think all fetuses are people and all abortions are murder, all abortions should be illegal. Whether the woman was raped shouldn’t be an exception. Whether she was made pregnant by her brother or father shouldn’t be. Not even the mother’s life should be an exception, since, given the choice between saving the life of a mother and her baby, most of us would want the baby to survive.

If you take the 9th amendment seriously, however, we all have rights not mentioned in the Constitution. Among those rights are the right to privacy as we go about our lives, the right to control our bodies and what’s inside them, and the right to make our own decisions. Rights do conflict, but there’s no doubt that we should be free from government interference most of the time. Getting pregnant is a normal part of women’s lives. Deciding not to be pregnant is also normal. Seeking and receiving the kind of care modern medicine can provide is normal as well. The government should try not to interfere in such cases. The five most reactionary members of the Supreme Court — all of whom claim to love freedom — should understand that and leave Roe v. Wade alone.

It’s Only the Supreme Court. Take Your Time!

Justice Stephen Breyer announcing his retirement later this year prompted Alexandra Petri, the Washington Post’s humor columnist, to comment. But the situation ain’t funny: 

Some things are urgent, such as, for instance, filling a Supreme Court vacancy. Other things are not urgent, such as, for instance, filling a Supreme Court vacancy. Sometimes it is a little hard to know which one it is. It depends on whom you ask — Sen. Mitch McConnell in 2016, or Sen. Mitch McConnell in 2020.

Now, Justice Stephen G. Breyer has retired (thanks for reading, Justice Breyer!), and it is time to locate a new jurist who will be willing to sit around for the next several decades writing withering dissents and waiting for her colleagues to die. And being warmly collegial, of course! It sounds depressing when you put it like that, but that is how the Founding Fathers designed it.

We had better proceed at a speed of some sort! Yes, now is either the time to grind to a halt, or to move forward with blazing rapidity from nomination to confirmation in 30 days . . .

Of course, the president presides over a Senate majority that could evaporate at any moment, which sounds urgent! But that president is a Democrat, so, a wash.

Sure, we have been rushed before. “I felt that the timetable for the last nominee was too compressed,” said Sen. Susan Collins (R-Maine). After all, Amy Coney Barrett was confirmed in such a short period of time that a Texan who became pregnant at the beginning of the process would still have been allowed to get an abortion when it ended . . .

“This time,” Collins continued, “there is no need for any rush. We can take our time, have hearings, go through the process. It is a lifetime appointment, after all.” So true! Now is the time to really sit and deliberate. The past two nominees were, only in the strictest and most literal sense, the deciding votes that could overturn Roe v. Wade; this nominee will be the one who has to sit there collegially dissenting after it happens, a role that requires a great deal more scrutiny.

We have hurried into this sort of thing before, and we can see how that turned out. (Please shout “Well!” or “Badly!” after a count of three so that we can see how apolitical a body the court currently is!) Now is no time to be hasty. The time to be hasty was earlier, after the failure of the Merrick Garland nomination to get a hearing but before the nomination of whoever this will be, when we were ramming new justices into forever appointments at astounding speeds and having the time of our lives.

Now, we should take our sweet time. We should get out our big reading glasses and a huge stack of books and proceed with enormous care. No rush! It’s fine! Nothing can go wrong. The Senate appears very functional. President Biden is in office, with a wafer-thick zero seats to spare! We have world enough and time at last, and we can finally do all the detailed, lengthy vetting that we have been meaning to do all this time but couldn’t, for some reason.

There’s no excuse to cut corners now. This time, the FBI might even have the leisure to follow up on the tips it receives.