A deeply partisan majority at Roberts Court is poised to enshrine a new principle in American jurisprudence: Justice for the loudest shout.
The six GOP-appointed Supreme Court justices left no doubt in their pleadings that they would end the constitutional abortion right that American women have enjoyed for nearly half a century. The court will cancel either Roe vs. Wade outright or cripple the historic decision by eliminating the “fetal viability” standard at its core. Both would take us back to a time before most people knew it, when state legislatures controlled women’s reproductive decisions.
Public opinion has not changed. Science has not changed. No new legal theory has been promulgated. The only difference is that the tribunal now has a determined majority to settle its scores in the culture wars. “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are political acts?” Judge Sonia Sotomayor asked her colleagues. “I don’t see how this is possible.”
There is a good reason, said Justice Elena Kagan, why the Supreme Court gave great weight to precedents – and in particular to “super precedents” such as the 1973 decision. Roe deer decision, confirmed by the 1992 Planned Parenthood v. Casey decision. This is “to prevent people from thinking that this tribunal is a political institution that comes and goes depending on which part of the public shouts the loudest.”
Before Kagan said those words, I had spent the morning outside the courtroom, watching the enemies of abortion literally scream from the other side. Police used metal barricades to divide First Street NE in court into equal sections for opposing parties, each with a soundstage. Not content with this arrangement, a group of anti-abortion protesters invaded the other side and took turns drowning the speakers there with a pole-mounted megaphone at breathtaking volume:, godless – I don’t even want to call you women! You are bloodthirsty animals! ”“ This is what happens when you allow women to emasculate men! God hate you! “” In the name of Jesus Christ, shut your vile sick mouth! “They heckled a black speaker:” Go to Chicago! The murder of blacks against blacks is out of the ordinary! … You don’t mind not take the white man’s dollar when he wants to kill babies!
It was the abortion debate in a nutshell. There were at least as many abortion rights activists in the crowd. They carried balloons saying “Bans Off Our Bodies” and fake People magazine covers calling Judge Brett Kavanaugh “the sexist man alive.” Some have organized a sit-in on Constitution Avenue. Some chanted “Ho-ho, hey-hey, abortion rights are here to stay.” Lawmakers and other speakers have expressed their sincere views: “Abortion is essential … Fair and equitable treatment … Oppression has no place in America.” But the other side was louder, full of rage. They displayed posters showing larger-than-life bloody fetuses and body parts. They are facing each other. They screamed. “You deserve capital punishment!… You are a vile anti-God, anti-Christ patient!” This is what the Roberts Court chose to reward.
reversal Roe deer will complete the decline of the tribunal in the political hacking that began with Bush vs. Gore, continued with United citizens (societies are people!), accelerated with the gutting of the civil rights law in Shelby County v. Holder, and reached terminal speed with the theft of a court seat by Senate Republicans in 2016. Now, after Conservatives have complained for years about the “arbitrary” standard of fetal viability, judges are considering a standard more arbitrary than 15 weeks. Is it any wonder that public confidence in the Supreme Court has reached a new low?
Judge Stephen Breyer, the court’s top liberal, spoke of the damage. “We have to have the support of the public,” he said, “and that comes mainly from the people who believe that we are doing our job.” Breyer said the Americans would conclude from the overthrow of Roe deer that judges are “just politicians. And that’s what kills us as an American institution.”
Conservative judges seemed indifferent. Judge Amy Coney Barrett said following precedent is “not an inexorable order”. Kavanaugh asserted that the right to abortion was a mere “interest” that states could ignore.
Scott Stewart, arguing for the Mississippi ban, urged judges to “stand strong and steadfast in whatever happens.”
Here’s “what’s going on”: About half of states would actually ban abortion once the Supreme Court rules, many without exception for rape or incest. Rich women could still travel to have abortions. Poor women, and disproportionately women of color, would go to the back streets or be forced to give birth, often risking their lives.
Here’s what’s going on: “The court has never revoked such a basic right for so many Americans,” argued Elizabeth Prelogar, solicitor general in the Biden administration, “and so essential to their ability to fully participate and fairly to society “.
So far, that is. Roe deer is dead. It’s over except the screams.
Dana Milbank writes for the Washington Post.