A Radicalized Republican Supreme Court Will Reverse An Individual Liberty Interest It Recognized For The First Time

American history has been been a steady advance of expanding rights to include those citizens who were excluded from the rights and privileges of citizenship at the founding of the nation, towards the goal of creating “a more perfect union.”

Fundamental rights once granted – to freed slaves, to women, to racial minorities, to religious minorities, to the LGBTQ community, etc. – have never later been reversed. Fundamental liberty interests are not subject to the whims of the majority, or to a vote. This is the very essence of protecting minority rights under the U.S. Constitution.

Yet the U.S. Supreme Court, with six radicalized Republican justices, appears likely to reverse the fundamental liberty interest a woman possesses to make reproductive choices over her own body, and to subject her individual liberty interest to the majority vote of state legislatures hellbent on criminalizing abortion again.

Let’s be clear, this is about subjugating women to second class citizen status in a patriarchal society. It is not about “the right to life.” Please. The anti-abortion forced birthers have a fetus fetish which they can use to control women. They assign sacredness of life to a fetus, but once a child is born, “you’re on your own, baby!” Don’t come asking me to pay taxes for your healthcare, your education, child care, food enough to eat, a safe place to live, etc. “Get a job!”

How many children have been sacrificed to gun violence in the name of what these same people really hold sacred, the Second Amendment and Justice Scalia’s invented individual right to bear arms? How many children have been sacrificed to Covid-19 (and other diseases) to these same people’s anti-science ignorance and anti-vaxxer insanity? How many children have been sacrificed to physical and sexual abuse? These forced birthers don’t give a damn about life after birth.

The reversal of a woman’s fundamental liberty interest to make reproductive choices over her own body will make it easier the next time for this radicalized Republican Supreme Court to reverse other liberty interests that the earlier Roberts Court recognized for same-sex marriage and LGBTQ rights. The white nationalism of Republicans could well lead to the reversal of inter-racial marriage, and even the reversal of Brown v. Board of Education ending Jim Crow state-sanctioned segregation.

Don’t believe it can happen? The Roberts Court has already gutted the nation’s most effective civil rights legislation, the Voting Rights Act of 1965, and has reversed labor rights on a backwards march to the Lochner era, and a corporatocracy of plutocrats and oligarchs.

This radicalized Republican Supreme Court is engaged in judicial activism, pursuing a political agenda of the far-right to reverse the progress of the 20th Century. They have abandoned any pretense to following the rule of law, judicial doctrines and precedent.

The Court’s credibility as a nonpartisan arbiter of the law is being destroyed by these Radicalized Republican justices and their political agenda.

Dana Milbank writes, ‘Roe’ is dead. The Roberts Court’s ‘stench’ will live forever.

A deeply partisan majority on the Roberts Court is about to enshrine a new principle in American jurisprudence: Justice for he who yells the loudest.

The six Republican-appointed justices on the Supreme Court left no doubt in oral argument Wednesday that they would end the constitutional right to abortion that American women have had for nearly half a century. The court will either overturn Roe v. Wade outright or cripple the landmark ruling by eliminating the “fetal viability” standard at its core. Both would return us to a time before most people living ever knew, when state legislatures controlled women’s reproductive decisions.

Public opinion hasn’t changed. The science hasn’t fundamentally changed. No new legal theory has been promulgated. The only difference is the court now has a majority hellbent on settling 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 just political acts?” Justice Sonia Sotomayor asked her colleagues. “I don’t see how it is possible.”

There’s good reason, Justice Elena Kagan said, why the Supreme Court has given great weight to precedent — and particularly to “super precedent” such as the 1973 Roe decision, affirmed by the 1992 Planned Parenthood v. Casey decision. It’s “to prevent people from thinking that this court is a political institution that will go back and forth depending on what part of the public yells the loudest.”

Before Kagan spoke those words, I had spent the morning outside the court, watching abortion foes literally shout down the other side … 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 Justice Brett Kavanaugh the “Sexist Man Alive.” Some held a sit-in on Constitution Avenue. Some chanted “Ho-ho, hey-hey, abortion rights are here to stay.” Lawmakers and other speakers voiced earnest bromides: “Abortion is essential … Fair and equitable treatment … Oppression has no place in America.”

But the other side was louder, and full of rage. They displayed scores of posters showing bloody, larger-than-life fetuses and body parts. They got in faces. And they screamed. “You deserve capital punishment! … You deserve what’s coming to you! … You’re a vile, anti-God, anti-Christ sicko!”

This is what the Roberts Court has chosen to reward.

Overturning Roe will complete the court’s decline into political hackery that began with Bush v. Gore, continued with Citizens United (corporations are people!), accelerated with the gutting of the Civil Rights Act in Shelby County v. Holder, and reached terminal velocity with the virtual theft of a court seat by Senate Republicans in 2016. Now, after conservatives complained for years about the “arbitrary” standard of fetal viability, the justices are considering a more arbitrary standard of 15 weeks. Is it any wonder public confidence in the Supreme Court just hit a new low?

Justice Stephen Breyer, the court’s senior liberal, referred to the damage. [He spent the summer defending the court as an institution, in order to sell his new book.] “We have to have public support,” he said, “and that comes primarily from people believing that we do our job.” Breyer said Americans would conclude from the overturning of Roe that justices are “just politicians. And that’s what kills us as an American institution.”

The conservative justices seemed unconcerned. Justice Amy Coney Barrett said respect for precedent is “not an inexorable command.” Kavanaugh claimed the right to abortion was a mere “interest” that states could disregard.

Scott Stewart, arguing for the Mississippi ban, exhorted the justices to “stand strong and stand firm in the face of whatever is going on.”

Here’s “whatever” is going on: About half the states would effectively ban abortion once the Supreme Court rules, many without exceptions for rape or incest. Rich women could still travel for abortions. Poor women, and disproportionately women of color, would go to back alleys or be forced to give birth, often at risk to their lives.

Here’s whatever else is going on: “The court has never revoked a right that is so fundamental to so many Americans,” argued Biden administration solicitor general Elizabeth Prelogar, “and so central to their ability to participate fully and equally in society.”

U.S. Solicitor General Elizabeth Prelogar: "The Court has never revoked a right that is so fundamental to so many Americans and so central to their ability to participate fully and equally in society. The Court should not overrule the central component of women's liberty." pic.twitter.com/x0ZB8XDj4k

— CSPAN (@cspan) December 1, 2021

Until now, that is. Roe is dead. It’s all over but the shouting.

Jennifer Rubin adds, The Supreme Court faces an existential crisis of legitimacy:

Supreme Court Justice Sonia Sotomayor said it better than any of the court’s external critics. “Will this institution survive the stench this creates in the public perception, that the Constitution and its reading are just political acts?” she asked during oral arguments on Mississippi’s abortion law on Wednesday. “If people believe this is all politics, how will we survive? How will this court survive?”

She was referring to the apparent willingness of the court to overthrow precedent simply because its membership changed. (The usual reasons for overriding precedent — such as new facts or an evolving social consensus — do not apply in this case.) As the solicitor general and the counsel for the Center of Reproductive Rights argued, this is the first time in history that the court will rip up decades of precedent to take away a fundamental personal right.

I trust Sotomayor’s query was rhetorical; the court will remain in its august building. But should it repudiate abortion rights, any pretense that it is above politics will vanish, in no small part a result of the blatant partisan agenda and intellectually pathetic arguments displayed on Wednesday.

Justice Brett M. Kavanaugh, who apparently snookered Sen. Susan Collins (R-Maine) into believing he considered abortion precedent “settled,” made the most disingenuous argument of the morning. Why can’t the court just be “neutral” on abortion, he asked. Some states would still allow abortion, right?

This is not how constitutional law works. The court is not “neutral” on the First Amendment or the Second or the 14th. It is there to uphold rights against political branches seeking to intrude upon — if not destroy — individual liberties. In declaring itself “neutral,” the court would be denying the right to an abortion affixed to nearly 50 years of precedent.

In terms of sheer frightfulness, nothing quite topped Justice Amy Coney Barrett, who repeatedly asked why the whole problem was not solved by the fact that women could just give up their child at the conclusion of their pregnancy. In other words, women can be forced to complete a pregnancy against their will, in violation of the 14th Amendment, because they do not have to keep the child.

This, of course, misunderstands the entire issue: It is about whether the government can violate a woman’s bodily autonomy, something we would not dream of doing in other contexts. Why do we not force people to give up kidneys for organ donation, given that at the end of the procedure, they will — probably — return to full health? Perhaps Barrett’s antiabortion advocacy was telling, after all.

She was outdone in the realm of theocratic arrogance only by Justice Samuel A. Alito Jr., who repeatedly referred to the interests and rights of a fetus. Where did that come from? Certainly not the Constitution, which speaks of “persons.” The notion that a fetus is a person is not shared by all faith traditions. Those who have accused right-wing justices of seeking to impose one strain of Christian doctrine on the rest of the country sadly have been proved correct.

Anyone counting on Chief Justice John G. Roberts Jr. to be the voice of restraint was sadly mistaken. In the guise of finding a way to overrule nearly 50 years of precedent without explicitly doing so, he asked the litigants why we couldn’t make the dividing line (after which he state can prohibit abortion) at 15 weeks rather than at viability? Well, then, what’s wrong, with 10 weeks, or six weeks? [As the Court has already permitted in the Texas case.]  The chief justice proposes to remove the only fixed and clear demarcation point for abortion rights, thereby inviting states to outlaw the vast number of abortions.

Several consequences flow from the apparent willingness of at least five justices to obliterate viability as the point at which states can ban abortions.

First, if Democrats needed reason to fire up the troops before the 2022 midterm elections, this might do it. The obviously partisan court will thrust the nation into a period of turmoil, chaos and outrage over new restrictions on women’s life choices, which Republicans will seek to cement in state laws. Every Republican on the ballot for state legislator, governor, the House or the Senate will have to defend new intrusions on women’s autonomy, including in cases of rape and incest. Given the wide and deep support for abortion rights, Republicans may come to regret appointing religious ideologues to the court.

Second, the pressure will intensify on Senate Democrats (West Virginia’s Joe Manchin III, in particular) to carve out an exception to the filibuster for the protection of constitutional rights — whether it is voting rights or reproductive rights. With the 2022 midterms looming, federal legislation protecting such fundamental rights may be the only avenue to stop a wholesale revision of our democracy and our modern conception of personal liberty.

Third, demands for term limits and even court-packing will intensify. As Sotomayor noted, the court enjoys respect and independence only when it acts like a court. As it transforms into a partisan weapon aimed at decades of constitutional protections, Democrats’ argument that they might as well get as many of “their” justices on the court as possible sounds more justified.

We are, in short, on the verge of a constitutional and political tsunami. What was settled, predictable law on which millions of people relied will likely be tossed aside. The blowback likely will be ferocious. It may not be what Republicans intended. But it is coming.