Six reactionary hearts at One First Street in Washington beat faster this week. The new term offers them the arousing chance to exercise, in the name of half the country, American society’s obsession with religion and sex which, intertwined since the Republic was founded, is at the core of the perpetual “culture wars”.
The Supreme Court’s half-dozen Papists are flying high, their three human colleagues condemned for the foreseeable future to shredding what passes for the majority’s legal reasoning. Even dissents, though, give too much credit by suggesting that what Republican justices perpetrate has anything to do with the law.
A primer: the Supreme Court’s mission under the Constitution is to decide what the law is. In practical terms, being “supreme” means that the Court can do what it wishes. Unlike judges in lower courts who are bound by the Court’s rulings, the justices themselves are subject to no such constraint. Above them? The sky’s the limit on invention and whim.
This makes sense to a point. Someone has to be the final arbiter of legal disputes. But with a framework as supple as the Constitution, there is wide latitude for mischief and worse from cranks, political hacks, and moral nags who happened to be in the right place at the right time for confirmation to a decades-long sinecure that must be pried from their cold dead hands.
As with the other two branches of government, built into the American judiciary were assumptions about the general adherence to prevailing norms (decency, compliance with rules, compromise). For the Supreme Court, in particular, there also was the importance of stare decisis. In 1980, norms began to erode. In 2000, they teetered. In 2016, they were demolished.
Abortion has been a defining issue for Republicans since the 1970s when they realized that, in parts of the country, it was a guaranteed winner at the ballot box. Oppose abortion, you’re in. This was a radical departure from the party’s traditional position that abortion was a question of individual privacy rights, not a matter for the State.
The resulting schizophrenia in Republican “thinking” has only become worse over the decades. In part, this is a function of lobbying groups created for a single reason, which is to deny — by whatever means, including the murder of doctors — the right of a woman to make her own choices. This being America, anti-abortion interests became a thriving industry.
In addition, the corporatization of American politics and the rightward drift of an aging, ignorant, and self-absored people have led to the grand bargain: companies will finance the road to political power in exchange for laws favorable to commerce (less regulation, lower taxes, insulation against liability) and for the suppression of anything even slightly progressive.
The effect has been a half-century drumbeat of opposition to Roe v. Wade (1973), which had sensibly said that, prior to the end of the first trimester, a woman and her doctor have the right to decide to terminate pregnancy, a “judgment [that] may be effectuated by an abortion free of interference by the State”. Six faith-driven justices will soon abrogate that right.
They’ll do so not because of a persuasive legal argument. Although the Constitution does not explicitly refer to “privacy,” Roe cites the extensive history of jurisprudence acknowledging “that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution”. Reactionary literalists refuse to accept this.
The rigidity of literalists — who commonly refer to themselves as “originalists” to sound less loopy and to give their views an intellectual hue — derives from the authoritarian urges bred into them by their Catholicism, as doctrinaire (if popular) a cult as any. Selective as always, their talent for non-originalist thought shines only to protect the State and commercial interests.
This makes the Six — Alito, Coney Barrett, Gorsuch, Kavanaugh, Roberts, Thomas — politicians and culture warriors who see themselves not as arbiters of the law, but something grander, bulwarks against a declining Judeo-Christian moral tradition. In their eyes, sex (by the unmarried) is evidence of that decline. Their gripe-filled public lectures tell us so.
The Court in Roe acknowledged the “awareness of the sensitive and emotional nature of the abortion controversy…. One’s philosophy, … experiences, … religious training, one’s attitudes toward life and family and their values, and the moral standards … are all likely to influence and to color one’s thinking and conclusions about abortion”. An honest thing to do.
But the Six deem this license to trash a long-standing fundamental right. “I am Catholic. My faith tells me that abortion is immoral. My faith supersedes fundamental legal rights (Establishment Clause notwithstanding), and I will use my personal and unlimited power to impose that faith even if it means the denial of rights to those of a different (or no) faith.”
A silly thought, were it fiction. When Coney Barrett tells graduating law students that their primary mission is to “create God’s kingdom on earth,” we’re talking theocracy not republic. (That that statement did not, by itself, automatically disqualify her from a role — any role — in a credible judiciary shows the decades of spade work by the country’s religious class.)
Alito, justifier of every flavor of police brutality (including strip-searches of 10-year-old girls), long ago promised Momma Rose that he would overturn that evil Roe v. Wade. He’ll send a her a note when it happens, even if she checked out eight years ago. In his smug law-and-order mind, he’ll have restored virtue. All he’ll really have done is beat up on the poor … again.
Kavanaugh is a different breed, more political operative than jurist. Serial perjurer, he was convinced that, having clerked for the Court’s simpleton (Kennedy), the seat was his right. True to form, Democrats blew it when they focused on the wrong perjury. Playground type that he is, he duly threatened them: “What goes around comes around.” Precedent is dead to him.
Clarence Pube-on-Coke Thomas remains what he’s been for decades, a get-off-my-lawn! ideologue in search of an ideology. He still yearns for legitimacy and resents not getting it. Hardly a thinker, he can safely be reduced to, If humanity is for, he’s against. He usually plows his own furrows into irrelevance but, on abortion, faith — and spite — will have him overturn Roe.
Chief Roberts has a dilemma, it seems. Less obvious in his faith-inspired jurisprudence and true to a worldview shaped in silk-stocking law firms, he’s said to worry about the Court’s reputation. Alas, he’s too obtuse to see that the Court’s questioned legitimacy originates with what his right-wing crew produces. He will dispatch Roe, but contrive tortured reasoning to justify it.
It’s hard to tell what Gorsuch will do. He had no problem, though, converting into a First Amendment issue what was a decision by state health experts, which happened also to apply to religious services. Nor did he hesitate to join the majority in upholding the new Texas law on abortion. A guess? Like Roberts, he’ll create a legal fiction for toasting Roe to a crisp.
These are the crusaders driven to inflict their Christianity on women. More specifically, on women of modest means, women unable to afford to travel to a state where abortion remains lawful. With a realm as steeped in hypocrisy as this one, there is, of course, no chance that the unfortunate babysitter knocked up by Kavanaugh, say, would be compelled to carry to term.
It tells us yet again that the greatest sin an American can commit is to be poor. The mission of the Six is to remind us that poverty is a moral failing. Once failed, redemption is unlikely in a system — its enactment and enforcement of laws, its rules for who gets power — that heavily favors the prosperous. A nation’s motto: “You made your bed, now lie in it.”
The Court long ago grasped that “[n]o state shall make or enforce any law which shall abridge [a person’s] privileges or immunities…; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” affords substantive rights. Yet literalists see only “process”.
Why would the Six want to indulge the bigoted passions of the Jesus Christers were it not to sate their own religiosity? Sure, they will argue that Roe misinterprets the Fourteenth Amendment, but that’s the cover story decency (as they see it) requires. It is solely their faith which spurs them to eviscerate an established fundamental right for half the population.
It may be true that the Six cannot help but represent the Zeitgeist, a time when faith is fashion among deeply ignorant but rabid millions adamant — Founders’ objections to theocracy be damned — in dragging ever more religion into the public square. That hardly justifies the supreme judges’ deeply personal, myth-inspired impulses to adjudicate the Constitution.
