The Constitution’s revenge

The leak of a draft Supreme Court opinion repealing Roe v. Wade is so stunning it’s hard to know where to begin.  First, there’s the leak itself.  Although any number of ideas are bouncing around as to who dunnit, the theory that makes the most sense is that it was a liberal judicial clerk stunned and appalled that the court was about to abolish a right that women have enjoyed for half a century.  If so, it’s sad because it’s a safe bet that the leaker’s career will be ruined once his or her identity is revealed and that criminal or civil prosecution will follow.  But it’s also heroic since the leaker was no doubt trying to stop the court from pushing US society over a cliff – which is precisely what will happen if this ruling goes through.

Elizabeth Warren: Seriously annoying

But the leak is also a revolutionary act since, in violating various rules and ethics, it says, in effect, that such trifles don’t matter in view of a court that has lost all legitimacy.  This is not to say that it’s lost constitutional legitimacy since it’s still acting in accord with Article III as far as anyone can tell.  But what really counts in this day and age is democratic legitimacy, and, in that regard, the court is not just shooting itself in the foot, but using a bazooka to blow off its lower extremities.

The draft is flagrantly at odds with anything resembling the popular will.  After all, a recent poll found that only 28 percent of Americans think that Roe should be overturned versus 54 percent who think it should be upheld, while another poll was even more lopsided, with just 30 percent in favor of repeal and a whopping 69 percent opposed.  

But it’s not just the decision that’s undemocratic but the court itself.  As the conservative (!) journalist Byron York points out, four of the five justices who signed the draft were nominated by unelected presidents, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett by Trump and Samuel Alito by George W. Bush.  They were then confirmed by a Senate so disproportionate that it gives multiracial California the same clout as lily-white Wyoming even though its population is 68 times greater.  The 54 senators who confirmed Gorsuch in 2017 thus represented just 44.6 percent of the population thanks to such monstrous imbalances while the 50 who put Kavanaugh over the top a year later represented 44.5.  The same goes for the 52 senators who confirmed Barrett in 2020: they represented a minority as well, i.s. 47.6 percent.  Alito, to be fair, made it by a hair since he was confirmed in 2006 by 59 senators representing 50.1.  But even though Thomas, the fifth signatory, was nominated by a duly-elected president (George Bush I), he’s still a minority choice because the 52 senators who voted for his confirmation in 1992 represented just 48.7.  That’s an average of 47 percent for each of the deadly five.  (By the way, the equivalent figures for Stephen Breyer, Sonia Sotomayor, and Elena Kagan, the court’s three remaining liberals who did not sign the opinion, are 89.5, 72.5, and 65.2 respectively.)

A minority-controlled executive thanks to a lopsided Electoral College and a minority-controlled Senate have moved the Supreme Court so far to the right that it is about to issue the most outrageously undemocratic decision since the 1930s.  The upshot is a dictatorship that can only intensify as the political infighting turns white-hot on Capitol Hill and a rightwing minority resolves to make the most of its built-in constitutional advantages.

It’s all quite reminiscent of the 1850s when a slaveholding minority in the south used its built-in constitutional advantages to control the federal government while a growing majority up north struggled to free itself in vain.  Some 170 years later, the same perverse constitutional mechanisms are at work, the same frustrations are building up to the point of explosion, and, once again, there’s no way out short of civil war.

This is what makes people like Chuck Schumer, Nancy Pelosi, and Elizabeth Warren so contemptible.  The day after Politico published the draft, Schumer called on Congress to codify Roe v. Wade by writing the right to an abortion into law.  But it’s so much empty blather since (a) Democrats no longer have a majority in the Senate now that Joe Manchin and Kyrsten Sinema have effectively deserted to the other side; (b) even if they did have a majority, they’d never be able to override a Republican filibuster, and (c) even they did override a filibuster, the Supreme Court would strike any such law down in a flash on the grounds that it amounts to a clear-cut violation of states’ rights.  If the draft opinion is correct and a constitutional right of privacy does not exist, then there’s nothing to stop states from doing away with abortion and no constitutional basis for Congress to stop them.

Pelosi lost no time after the Politico story broke to send out a mass fund-raising email describing the upcoming midterms as “the most important election in terms of women’s rights in history.”  This was also nonsense. Even if Democratic win big in November – which they won’t – they’ll still be unable to do anything to stop a Supreme Court bent on turning the clock back to the 18th century.  They won’t be able to codify Roe for constitutional reasons, and they would be able to alter the court’s ideological balance either because Alito and Thomas, the two most senior conservatives, are both in their early 70s and therefore are likely to remain on the bench for at least another decade.  Pelosi either doesn’t know what she’s talking about or she’s just hustling for funds.

Besides, this is the same Nancy Pelosi wo not long ago sang an ode of joy to — get this! — “the beautiful, exquisite, brilliant genius of the Constitution,” the same Constitution that is now robbing women of a fundamental right.

Finally, there’s Elizabeth Warren.  “An extremist Supreme Court is poised to overturn Roe v. Wade and impose it’s far-right, unpopular views on the entire country,” she tweeted on May 2.  “It’s time for the millions who support the Constitution and abortion rights to stand up and make their voices heard.  We’re not going back – not ever.”  Brave words!  But you are going back, Liz, because the slaveholders’ Constitution is not the instrument of democracy you say it is.  Rather, it’s a blueprint for minority control that you’ve spent your entire career helping to enforce.

Needless to say, small-d democrats – a category that most definitely does not include Pelosi, Schumer, and Warren – are outraged by the move to dump Roe.  But if they’re honest, they’ll also admit to being made uncomfortable by pro-privacy arguments of the sort that William O. Douglas made famous in Griswold v. Connecticut in 1965.  Yes, the Constitution should contain a right to privacy protecting not only abortion, but drugs, contraception, and sex work. But such a right does not exist in “penumbras and emanations” that only highly trained jurists can discern.  Rather, it should be in plain black and white for all to see.  In fact, just to make sure there’s no confusion, “we the people” should put up a big neon sign declaring: “The public has no legitimate interest in regulating activities that do not adversely affect public well-being.  Otherwise, individuals have a democratic right to do with their bodies what they will.”

Theoretically, the people could institutionalize such a right via the constitutional amending process set forth in Article V, except, of course, that the article makes it effectively impossible by giving untrammeled veto power to one-third-plus of either house or one-fourth-plus of the states.  This means that thirteen states representing as little as 4.4 percent of the population have an unqualified right to say no, not for a month or a week but forevermore.  Since 21 states have already shown where they stand by moving to restrict abortion, that particular escape hatch has been locked and bolted as well.

It’s yet another example of the minority dictatorship that Pelosi, Schumer, and Warren celebrate while making a great show of raging against the results. 

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