The five unelected right-wing lawyers who control the court don’t care about abortion, climate disaster, rampaging gun violence or any of the lethal human consequences that flow from their opinions.
This headline in the Charlestown Mercury celebrated South Carolina’s decision on December 20, 1860, to end America. That didn’t work, so now, 162 years later, the U.S Supreme Court has taken another bite at the apple of dissolution.
(This story was original published in slightly different form in the LA Progressive, June 30, 2o22, six days after the decision in Dobbs v. Jackson Women’s Health Organization.)
The real mission of the Supreme Court’s hard-right majority was pretty clear once the wording of the Dobbs decision was released. With the publication of the EPA decision six days later, there could be no doubt. The five unelected right-wing lawyers who now control the court don’t care about abortion, climate disaster, rampaging gun violence or any of the lethal human consequences that will flow from their opinions. What they do care about is destroying all hope of achieving the original ideal of America as a unified, purposeful nation capable of recognizing and protecting our rights.
A hard look at Dobbs is a good place to begin the search for the court majority’s real mission. It’s hard to believe anything coming from any five lawyers, especially if most or all of them have lied to Congress about their pasts, made false promises about their future behavior, and misrepresented their fundamental beliefs regarding the Constitution and the law. But when the lawyers are Alito, Kavanaugh, Thomas, Gorsuch and Barrett, we miss crucial evidence of their motives if we fail to consider taking them at their word.
In the case of the Supreme Court’s expected but still shocking decision in Dobbs, the justices’ words eradicate women’s constitutional right to choose abortion. But the five justices who made that decision assert that they don’t care one way or another about abortion. “The Constitution does not take sides on the issue of abortion,” Brett Kavanaugh writes in his concurring opinion. This neutrality sounds like a lie, of course, since the decision obviously forces millions of American women to face dangerous, potentially insurmountable and even deadly barriers to obtaining the medical care they want and need. But if we can, just for a moment, pretend to take the justices’ claim seriously, it raises a fateful question for us and our country: If this isn’t about abortion, what are these five ideologues really trying to accomplish?
The American left often repeats that these Republican justices were selected by their party specifically to end women’s right to abortion care. But their project is much, much bigger than that, and Dobbs is more about accomplishing their ultimate mission than our public dialog initially acknowledged.
splintering the U.S. into clashing societies with no consistent definition of justice
As the consequences of Dobbs and other recent Supreme Court edicts play out, it’s undeniable that the hard-right majority is doing what they have telegraphed for years they would do — shackle, destabilize, and dismember the federal government until it is powerless to govern this diverse country. They’ve now shown they will do this any way they can. In Dobbs, the strategy is to shift power over our most consequential domestic issues of freedom, autonomy, and survival to 50 state legislatures, splintering the U.S. into clashing societies with no consistent definition of justice. In West Virginia v. EPA, the strategy is to decide that Congress never meant to give the country’s critical regulatory agencies the power to deal with any “major question” — certainly not climate catastrophe.
Each of the recent major decisions are weapons the right-wing justices have chosen to stop the United States from ever being a single, unified nation with consistent laws, universally recognized freedoms for all, and a coherent national purpose. The injuries Dobbs will inflict on the country are the best example of this. They reach far beyond the realm of abortion care, even far beyond “women’s rights.” The idea that any group of people can be singled out and given different human rights in different states is an existential threat to the basic sustaining ideal of an American nation that is “the land of the free” — a country where all people are treated equally. But so far, the Democrats have failed to recognize and enunciate the scale of the threat and have no realistic plan to counter it.
Joe Biden’s first reaction to Dobbs, bizarrely, included a full-throated vote of confidence in the Supreme Court. The day after Dobbs was announced, presidential press secretary Karine Jean-Pierre was dispatched to the back of Air Force One to tell reporters that Biden “sees the court obviously as legitimate and he respects the court... it is a court that he highly respects." Despite volumes of evidence that this Supreme Court is totally politicized, illegitimate, and packed with right-wing hacks who make up law as they go along, Biden remained blind to our political reality, firmly stuck in an antiquated fantasy where “bipartisan” refers to something real.
The announcement six days later of the decision canceling the EPA’s ability to fight climate disaster apparently roused Biden. Reversing his position on the sacredness of Senate rules, Biden finally said that he will try to get an “exception” to the Senate’s filibuster rule for abortion and voting rights issues. But his chances of doing that, of course, are rated as slim by almost everyone.
“i think our country is really on the precipice.”
Hillary Clinton, of all people, has come closer than any other middle-of-the-road Democrat to ringing the right alarm. With the current Supreme Court in charge of deciding what the Constitution means, we are “looking at dismantling the federal government,” she said in a rare network TV appearance following the Dobbs decision. “I think our country is really on the precipice,” she warned.
Actually, Dobbs alone managed to push us off that precipice. Liberal historians and political pundits have talked generally in recent years about how we haven’t seen today’s deep popular political divisions since the Civil War era. But Dobbs, by messing with the intimate details of personal privacy and liberty, parallels the destructive political history of that era in alarming detail. Dobbs truly has the potential to set the stage for the next Civil War by reshaping modern America into the 21st-century version of the country that Abraham Lincoln, borrowing a phrase from Jesus, described prophetically as a “house divided against itself;” a house that “cannot stand.”
Lincoln made that oracular speech in 1858, three years before the Civil War began. Running for the Senate in Illinois, Lincoln saw an existential threat to the country in the policy of letting each new state have its legislature decide whether to allow slavery. That threat, he said, had been weaponized by the Dredd Scott decision, a still-frightening Supreme Court edict in 1857 that decided Black people could never be U.S. citizens and struck down as unconstitutional a federal law that blocked slavery from some of the country’s new territories.
Lincoln’s project was unity and consistency. His motivating ideal was to preserve a republic that would protect liberty for all. He understood that no nation can hold together as a balkanized crazy quilt of free and slave states. It took a war and some 750,000 deaths, including Lincoln’s own, to preserve the United States. Even that apocalyptic sacrifice failed to secure unity or the “more perfect union” we committed to in our Constitution’s non-binding preamble. Now, we’re looking at essentially the same disaster Lincoln confronted 157 years ago. The Dredd Scott decision, which enraged anti-slavery America and helped hasten the war, ultimately became known as the worst decision the Supreme Court ever made. Today, Dobbs provides at least a little competition for that title.
a patchwork country split roughly in half between states where abortion is a serious crime and states where it is a human right
So, let’s look again at Dobbs: What it doesn’t do, of course, is ban abortions. What it does do — and the justices who wrote it know this — is create a patchwork country that will be split roughly in half between states where abortion is a serious crime and states where it is a human right.
The confusion and outrage that Dobbs creates raises virtually infinite opportunities to ignite a war between the states. The New York Times, for example, ran a story on June 24th asking, “Is it legal for women to travel out of state for an abortion?” President Joe Biden, Attorney General Merrick Garland, and even Justice Bret Kavanaugh say yes, it is. But legislatures in Texas, Missouri, and other Red states have passed or debated a raft of state laws that claim they have the power to criminalize abortions performed for their state residents anywhere in the country. They’re contemplating prosecutions and law suits against anyone who “helps” one of their residents obtain a legal abortion.
Here’s a question raised by Dobbs that the Supreme Court doesn’t care to consider: Are we ready for a country where pregnant women will be detained at state lines until state border agents can interrogate them to determine why they are traveling? There are similar sorts of questions involving our basic human rights that are raised by the right-wing majority’s decisions in the New York gun rights case and the EPA case: What happens in densely populated cities when any idiot can carry a concealed gun for no reason at all? What happens to the entire population of the world when the U.S. is powerless to reduce the air pollution that is killing us all and setting the planet ablaze?
And all these kinds of disputes and uncertainties — all these opportunities for conflict — are just the beginning of what looks like a generation-long reign for this court majority.
Most of our important rights are “not mentioned” in the Constitution.
The Dobbs majority agreed that abortion and privacy cannot be protected under the Constitution because they are “not mentioned in the Constitution.” That should be very, very scary to everybody. The right to vote, for one example, is “not mentioned” in the Constitution. (Neither, for that matter, is the right of the Supreme Court to determine which federal laws are unconstitutional.) Most of our important rights are “not mentioned” in the Constitution. If we have to rely on that centuries-old document, we best keep in mind that it makes no mention of a right to health, to education, to earn a reasonable living wage, or, as underscored by the EPA decision, to breathable air or drinkable water.
Besides badly under-specifying our rights, as I’ve written before, legal scholars have concluded that our Constitution is so vague on so many points that it can’t be relied on to guard our basic liberties.
Dobbs provides proof positive of the Constitution’s lethal vagueness. For the last half-century, the Constitution meant that women in the United States have an absolute right to privacy and to abortion care free from interference by any government — local, state or federal. Today, it turns out the Constitution means exactly the opposite. Welcome, as one commentator said in a fitting reference to the Netflix horror hit “Stranger Things,” to the Upside-Down.
The Constitution has now delivered us to roughly the same deadly impasse twice in the country’s relatively short history. We should be able to see that the real culprit is the Constitution itself. If we’re going to fix this mess and survive, we need a new one.
