There’s a definite theme to today’s posts. First, Michael F then Cassandra expressed their indignation over oral arguments in Dobbs v. Jackson Women’s Health Organization hereinafter just plain Dobbs. Far be it from me to break the chain of righteous indignation at the GOP, the MSM, and a SCOTUS on which Justices Thomas and Alito seem to be the dominant members.
Abortion has long been the GOP’s political catspaw. Raging against Roe v. Wade became mandatory in the 1980’s. Poppy Bush was pro-choice before becoming Veep and he downplayed his flip-flop on the issue for many years. After Bush’s defeat in 1992, Republicans were briefly in disarray over whether culture war issues should have dominated the Bush campaign. The culture warriors won the argument and the Gingrichification of the GOP commenced.
The politics of abortion rights has cut in the GOP’s favor since the 1994 Gingrich wave election. Limitations on Casey v. Planned Parenthood’s undue burden test began to pile up. That secured the fealty of the religious right to the GOP and the winnowing out of pro-choice Republicans. Conservatives such as Barry Goldwater were pro-choice because they were against government overreach in all aspects of life. Those days are long gone.
A majority of Americans has always been pro-choice, but they’ve been out shouted by the so-called pro-lifers. You know what they say about the squeaky wheel. Nobody squeaks louder than the anti-choice right. They may well get their way in the wake of Dobbs, but there’s another old adage at work here: Careful what you wish for. The GOP was better off having abortion as an issue. It’s unclear what form the backlash will take, but it will come.
I discussed my frustration yesterday at how people have ignored Casey and overstressed Roe. That was not the case in the courtroom on Wednesday. Mississippi solicitor general Scott Stewart mounted a sustained attack on Casey’s undue burden standard which prompted Justice Sonia Sotomayor to say this:
What hasn’t been at issue, in the last 30 years, is the line that Casey drew of viability. There has been some difference of opinion with respect to undue burden, but the right of a woman to choose, the right to control her own body, has been clearly set since Casey and never challenged. You want us to reject that line of viability and adopt something different. Fifteen justices over 50 years, or I should say 30 since Casey, have reaffirmed that basic, viability line. Four have said, no. Two of them, members of this Court, but 15 justices have said, yes, of varying political backgrounds.
Now, the sponsors of this bill, the House bill, in Mississippi said, “We’re doing it because we have new justices.” The newest ban that Mississippi has put in place, the six week ban, the Senate sponsor said, “We’re doing it because we have new justices on the Supreme Court.”
Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible. It’s what Casey talked about when it talked about watershed decisions. Some of them, Brown versus Board of Education, it mentioned, and this one have such an entrenched set of expectations in our society, that this is what the court decided this is what we will follow. That we won’t be able to survive if people believe that everything, including New York versus Sullivan, I could name any other set of rights, including the Second Amendment, by the way. There are many political people who believe the Court erred in seeing this as a personal right, as opposed to a militia right. If people actually believe that it’s all political, how will we survive? How will the Court survive?
I indulged in quote overkill because Justice Sotomayor’s point about the supreme stench is even more powerful in context. The stench of politics is greater than at any time in the court’s history. The previous peak stench was the 2000 election case, Bush v. Gore. The best thing John Roberts has done as Chief Justice is to tamp down the stench of politics emanating from court radicals such as Thomas and Alito, The rule of six may render that task impossible.
Predicting the outcomes of SCOTUS cases from oral argument is a mug’s game. It looks as if the Mississippi law will be upheld but it’s unclear as to whether Roe and Casey will be placed in a box or overruled. Roberts prefers the former. I suspect that he’ll vote with the other five GOP nominees in order to assign himself the opinion. What happens from that point is a mystery. Roberts has to talk either Kavanaugh or Barrett off the ledge with arguments about stare decisis and the court’s legitimacy. I’m not sure if he can pull it off.
The last time I used the featured image of Justices O’Connor, Sotomayor, Ginsburg, and Kagan the post received a scathing comment about O’Connor’s inclusion. I stood by it then and stand by it now. Justice O’Connor was a pragmatic woman with a legislative background. She steered the court to a moderate, sensible outcome in Casey and established the undue burden standard that is under siege in Dobbs. It makes one nostalgic for Republican appointees such as O’Connor, Kennedy, Souter, Blackmun, and Powell. The backlash to their pragmatism resulted in the Federalist Society’s reign of error over SCOTUS, alas.
The supreme stench was slow in coming and will take time to expunge. Other rights are imperiled by the ascendance of Thomas and Alito. It’s going to be a long hard slog with an uncertain outcome. Try not to let the bastards grind you down.
Like Justice Sotomayor, I’m concerned about the stench emanating from SCOTUS. Unlike her, it gave me an earworm. The last word goes to The Byrds: