Yesterday I wrote a lawyerly, sardonic, and icy post about the leaked Alito opinion. The more I think about it, the angrier I get. I said this on Twitter:
SCOTUS should be ashamed of the quality of Alito’s draft opinion. It amounts to legal smack talk. https://t.co/u7S3YcvsMi
— Shecky (@Adrastosno) May 3, 2022
It’s a terrible opinion; one that should be beneath any Supreme. Of course, the GOP has brought us Ginni Thomas’ husband Clarence and the rapey, weepy, and snotty Justice Bro dba Brett Kavanaugh. They also brought us Runaround Sue Collins who is shocked, shocked that Gorsuch and Kavanaugh will vote to reverse Roe and Casey. They lied to your face in your office, Senator. Schmuck.
As I seethed and fumed, my mind turned to 1987 when President Reagan nominated Robert Bork to the Supreme Court. He was best known at the time as the man who fired Archibald Cox for Tricky Dick during Watergate.
During his confirmation hearings, Bork told the world what he really thought of Roe:
“Roe v. Wade contains almost no legal reasoning. We are not told why it is a private act—and if it is, there are lots of private acts that are not protected—why this one is protected. We are simply not told that. We get a review of the history of abortion and we get a review of the opinions of various groups like the American Medical Association, and then we get rules. That’s what I object to about the case. It does not have legal reasoning in it that roots the right to an abortion in constitutional materials.”
Bork’s nomination went down in flames 58-42. He was the last GOP Supreme Court nominee to tell the truth about abortion rights. He was wrong but I respect his candor. The same cannot be said for later nominees. If Runaround Sue Collins had bothered to do any research, she wouldn’t be shocked that Gorsuch and Kavanaugh lied to her.
Republicans invented a term to describe what happened in 1987: the nominee was Borked. Their implication is that he was smeared. I think his nomination was defeated on the merits but it’s still a useful term.
The current court is Borking the hell out of the law and has made a prophet of Senator Ted Kennedy:
“Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.”
That sounds like Donald Trump’s America as translated into lame legalese by Sam the Sham Alito & the Federalist Society Pharaohs: Clarence T, Neil G, Brett K, and Amy CB. John R often agrees with them but is embarrassed to be seen with them in public.
Sam the Sham Alito & the Federalist Society Pharaohs specialize in legal nonsense, the original band specialized in nonsense songs:
That was some much-needed comic relief after contemplating Robert Bork’s America.
I was a baby lawyer aka 1L in 1987. I remember the Bork debate as it swirled around Tulane Law School. The faculty were mostly anti-Bork and cheering on Ted Kennedy and Joe Biden’s successful effort to keep Bork off the high court. The Federalist Society was new back then, but I think Borkapalooza grew their membership.
Many conservatives were still sane in 1987. Among them was one of my best friends in the class of 1990. We bickered cheerfully and respectfully even about Bork. I recall him asking me to explain the “thinking of your ilk.”
I guess that qualifies as legal smack talk too.
It was an open secret that even liberal lawyers at that time thought that Roe was correctly decided but sloppily reasoned. That’s why I focus like a laser on Casey, which is the case that cleaned up Justice Blackmun’s Roe opinion. Justices Kennedy, O’Connor, and Souter thought that their work would endure. The Federalist Society had other ideas that have reached fruition in Alito’s Dobbs rant.
The glee with which the current SCOTUS majority is dismantling the framework of legal progress of the last 70 years is appalling. It’s a reminder that the court was a profoundly reactionary body for most of its history.
As the country has become less religious, the Supreme Court has become more religious. Alito’s Dobbs rant claims to be originalist when it’s really traditionalist and nostalgic for an allegedly “simpler” America. There was no such thing: we’ve always been a country of wild contradictions and inconsistencies. The Supreme Court used to clean up messes, now it’s making them.
I miss the days when we lived in Earl Warren, Bill Douglas, Bob Jackson, Bill Brennan, Thurgood Marshall, and Ruth Bader Ginsburg’s America. Instead, we live in Robert Bork’s America, which is a scary place of back-alley abortions, insurrectionists, and white supremacists.
Sam the Sham Alito & the Federalist Society Pharaohs are Robert Bork’s intellectual spawn. They can go Bork themselves.
Let’s close on a poignant note with a song that Cyndi Lauper wrote about a friend who died from a back-alley abortion; something that’s likely to be more common since we’re living in Robert Bork’s America now.