Alito’s draft decision is a nightmare. If this is the version adopted by the court, it will overturn Roe v. Wade. Many states already have draconian anti-abortion statutes on the books, which will become good law the moment Roe is overturned.
It’s obvious what this means for women and for the nation. Some of these statutes make no exception for rape and incest. If you combine criminalizing abortion with the right-wing view of rape (she was asking for it and you can’t believe a woman without corroborating evidence), you can see that this takes women back to a very dark place.
The solution: Elect enough Senators to reform the court and pass legislation to codify abortion rights.
But Won’t the Supreme Court Overturn Any Such Legislation as Unconstitutional?
No, you don’t need 60 Senators to get around the filibuster. You need 51 willing to do a carveout. Because we have a Democratic administration, you need 50 + Kamala Harris.
There are ways to frame the legislation. Law professor Jed Shugerman has an idea for how such legislation can be drafted to avoid running afoul of Congress’s powers to pass legislation. You can see it here.
We also need the reform the Court, which means we need more Senators (and we need to keep the House.)
An Advantage for the 2022 Election
There’s a reason people keep saying this will fire up the Democrats and those who have no desire to return to a bygone era when women were kept barefoot and pregnant, which of course keeps them dependent upon men. I’m old enough to remember when women often weren’t hired for jobs because you never knew when they might become pregnant.
This doesn’t mean it will be easy. In 2020, even with everything we knew about Donald Trump and his administration, 46.9% of voters voted for him.
Alito’s draft decision, and the Republican response, should give us a clear view of where this country will end up should the Republicans retake Congress and thus make it impossible to fix this mess.
It also Gives the Attack Accounts Something to Attack Other Than Democrats
Social (and mainstream) media needs something to rage about. On social media, there are a number of “attack accounts.” These are accounts that became popular by attacking Trump and the Republicans. These accounts are really good at attacking and attracted a large following. The problem is that they don’t really understand how the American government works, so after Trump was out of office, the only thing they could do was attack Democrats, which they have been doing.
I don’t mean bots and trolls. I mean large, blue-check influential accounts. I quoted some of them in my FAQs on Merrick Garland for their attacks on the DOJ and Merrick Garland. I also don’t mean fact-based criticism. I mean rage-inducting simplifications and outright mischaracterizations.
This was concerning because attacking Democrats is not a very good strategy for electing more Democratic Senators so we can pass the legislation we need.
Since the draft decision in Roe v. Wade, the attack accounts have been attacking the Supreme Court and the anti-abortion nuts. It keeps them busy attacking someone other than Democrats. This is good for the midterms.
But What About . . ?
There are two but what abouts packed into that question: But what about gerrymandering? But what about voter suppression?
But what about gerrymandering?
A. The Senate
The Senate can’t be gerrymandered by state legislatures: The Constitution specifically states that Senators must be elected by popular state-wide vote.
Prior to the ratification of the Seventeenth Amendment in 1913, Senators were selected by state legislatures. Now the voters pick their Senators. This means the Constitution specifically forbids legislatures to overturn the popular vote in Senate races. (No, the Supreme Court will not let state legislatures overturn Senatorial elections. The majority of this Court is reactionary and embraces White Christian nationalism, but they didn’t go along with Trump’s election fraud schemes. They’re not going to ignore the explicit language of the 17th Amendment.)
B. The House
The House redistricting so far is favoring the Democrats. When the redistricting process started, there were fears that redistricting would result in a huge advantage for Republicans because Republicans control so many state legislature. Instead, so far, Democrats have picked up 7 seats.
But what about voter suppression?
Modern voter suppression means putting hurdles in the way of voters and making it harder for them to vote. Here’s the thing: Voter suppression falls on Republicans, too, but they counted on the fact that they have always had a better get-out-the-vote operation and Democrats have historically slept through midterms and local elections.
The solution: Improve our get-out-the-vote operations to help people over those hurdles. Call your local Democratic Party and see how you can help turn out the vote.
Does the draft opinion mean that precedent is dead and the courts can do anything it wants?
No. The Supreme Court, in the past, has overruled itself. The most famous example was when the Supreme Court overturned Plessy v. Ferguson, the 1896 case that declared racial segregation legal as long as the separate facilities were equal. If the Court could never overrule past decisions, we’d still have racial segregation.
But yes, this radicalized Supreme Court with its majority embracing White Christian Nationalism will peel back other rights based on the implied right to privacy the moment they have the chance.
Here’s Why Ruth Bader Ginsburg was critical of Roe v. Wade
Did you know that Ruth Bader Ginsburg thought deciding Roe v. Wade under an implied right to privacy was a terrible idea? She thought the better handle would have been the equal protection clause of the Fourteenth Amendment.
Before taking her place as a Supreme Court justice, Ginsburg was a trailblazer in legal rights for women. As it turned out, she was representing an abortion case on the way to the Supreme Court when Roe v. Wade was decided.
She always thought things would have gone better had hers arrived first.
Her client, Susan Struck, was an Air Force Captian when she got pregnant. At the time, abortion was not only legal but was required if she wanted to remain in the Air Force. Struck was offered a choice: An abortion or her job. She was Catholic and didn’t want an abortion. Ginsburg took the case and argued on equal protection grounds that it should be a woman’s choice.
She filed her Supreme Court appeal in 1972 and regretted that her case didn’t arrive first because she thought the facts in her case were better than the facts in Roe v. Wade to make an equal protection argument. Specifically, she thought that an Air Force captain forced to choose between an abortion and her job would have been an ideal for opening a dialogue with the Supreme Court about a woman’s right to control her own reproductive organs.
Had her case arrived first, she would have asked for a ruling on narrow grounds instead of the sweeping decision issued in Roe v. Wade. She believed that the Court should move incrementally. Most Americans at the time were coming around to understanding pro-choice arguments, and she thought a narrow ruling would allow support for a woman’s choice to build. She worried that a ruling that was too sweeping and broad would trigger a backlash.
As we all know, the Supreme Court, in Roe v. Wade, instead issued a broad sweeping decision under the implied right of privacy.
The ruling also triggered a backlash. During the decades since Roe v. Wade was decided, Republicans have cobbled together an electoral majority despite unpopular economic policies specifically by promising White Christian nationalists that they would appoint conservative justices who would overturn Roe v. Wade. Ginsburg believed that moving incrementally would have avoided creating the circumstance for such a backlash.
Finally, Ginsburg was really annoyed that the Supreme Court ruled the decision is between a woman and her doctor. Ginsburg found this patronizing to women (at the time, most doctors were men). She thought it should be the woman’s decision. Period.
If the draft decision is adopted by the court overturning Roe v. Wade, it will be (in my view) tied for the third most horrible Supreme Court decision in history
We have had only two Supreme Courts in the history of the nation that can be called liberal: The John Marshall Court (1801-1835) and the Earl Warren Court (1953-1969). For most of our history, the Supreme Court ranged from conservative to reactionary/regressive. This is because rural areas have an electoral college advantage, so presidents tend to represent the views of rural America (and the former Confederacy) who then appoint most of the Supreme Court Justices.
The worst Supreme Court decision of all time: Dred Scot v. Stanford. This is the decision that held that Black Americans have no right to citizenship or equal status because they are inferior human beings. (This case was overturned by Constitutional Amendment after the Civil War.)
Second worst: Plessy v. Fergusson: This was the decision that held racial segregation Constitutional. (This case was overturned by Brown v. Board of Education)
There have been other horrible decisions as well. The list of contenders for third place is long, so I’ll just mention a state court case, State v. Rhodes, in which the North Carolina Supreme Court held that a man had the right to beat his wife, as long as the injuries he inflicted were not serious.
You get the idea.
We had a liberal Court in the 1950s and 1960s because Franklin Delano Roosevelt was able to appoint so many justices. The Warren Court gave us, among other things, Brown v. Board of Education and the rights of criminal defendants, including the right to a court-appointed lawyer.
The Warren Court was so liberal, in fact, that it enraged the right-wing, which has spent the past 70 years doing everything possible to change the court from liberal to reactionary.
They have obviously succeeded.
The way forward is to elect more Democratic Senators and keep the House.
Yes, it can be done. What are you doing to help?
Oh yeah, and don’t forget your fiction break ☕️.
