Yo, Chicken Little, You’re right. The Sky is truly falling. Also, You folks who think the mouthy kid from next door is lying about The Wolf had best look to your flocks. A Right-Wingnut Wolfpack with Blood-Stained Teeth is on the Prowl!
Introduction: Some blessings of the Baby Boomer generation.
The current state of politics is, of course, the reason for this essay. Somewhat strangely, the horrifying crisis in today’s politics clarifies just how lucky I am to be a Baby Boomer. Consistent economic growth was the rule, not the exception. Our parents told us to get an education so that we could go better than they did, and many of us did exactly that and prospered.
A few problems went along with what I am calling a piece of luck. I grew up in a world where we always felt on the edge of a nuclear holocaust. I was raised in a Texas town next to a Strategic Air Command base with B-52 bombers ready at any moment to drop nukes on those Russkis. My town was supposedly high on the USSR’s hit list in the case of nuclear war. So, as a youngster, whenever I heard a sonic boom, I wondered if the end of the world was rushing at me. Of course, if it had truly been the end, I would have been radioactive dust before I had a chance to hear that boom. But you need to remember that my youth coincided with the era of magical thinking called “duck and cover.”
Nonetheless, my family home was purchased through the GI Bill. I received government loans for college at a shockingly low interest rate and easy terms for repayment. All in all, my generation, those of us who lived through or avoided Vietnam, did pretty well. Our futures were relatively bright.
I am not sure that the same can be said for more recent generations. But one of the blessings that my generation received, which I feel sure is ending abruptly, is the expansion of individual liberties protected by The Constitution.
Progress in constitutional rights while the Baby-Boomers came of age.
As a general rule, the US Supreme Court was, until the last few years, an institution to be treasured, or at least respected. The Warren and Burger courts tremendously expanded our adherence to the spirit and tenets of the Bill of Rights and the14th Amendment to the Constitution that states:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States no shall any State deprive a person of life, liberty, or property, which due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
That amendment, which had largely lain dormant since its approval in the post American Civil War era, was finally, and justly, used in conjunction with the Bill of Rights to explosively expand constitutional rights for Americans. The Warren and Burger courts used these elements for a variety of laudable causes. The Rehnquist court, which followed these engines of change, luckily did little to arrest or reverse this trend. My generation saw an impressive array of important decisions involving substantial change. The list of important cases in this period is both noted below and incomplete, but it names most of the major cases of the era.
- Racial segregation in schooling ended, though the “all deliberate speed” element of that decision meant that I was in high school in the late 60s before I saw a Black face in my school.
- Individuals charged with crimes received a meaningful right to counsel.
- The right against self-incrimination in criminal courts was strengthened.
- The use of illegally seized evidence was barred from criminal trials.
- Mandatory prayers were ended in public schools.
- Miscegenation laws were struck down.
- Laws against the use of contraceptives were prohibited.
- The right to vote was protected, and the “one man, one vote” doctrine became a (surprisingly time limited) constitutional principle.
- A woman’s right to make, along with a medical professional, the personal decision to end a pregnancy was established and reinforced by later decisions.
- The right to a same-sex marriage was established.
All of that makes the denunciation of Roe v. Wade all the more horrifying. The “logic” in Justice Alito’s opinion shows just how far the American right wing and Christian fundamentalists will go to solidify their power over our lives. Serious legal scholars and behavioral scientists will certainly offer much more cogent arguments and better information than that provided below. But, some parts of the opinion bear comment. Besides, I’m too pissed off not to write this now.
Discussion of some elements of the opinion, interspersed with more general comments on the current state of American politics, are the “meat” of the essay.
Does the upcoming decision constitute the overturning of just another precedent?
Part of the Alito argument has to be that The Court has a somewhat illustrious history of overturning outdated or poorly supported rulings. Legal scholars tell us that The Court has overturned precedent over 200 times during its history. Be that as it may, let’s look at some of the important cases overturning precedent, or establishing new rights, in the Boomer era. I am not an attorney, so be ready to forgive any errors in my presentation of the decisions below.
- Brown v. Board of Education of Topeka (1954). A unanimous Warren Court decided that a separate but equal policy of educational facilities for racial minorities, consistent with Plessy v. Ferguson (1896), violated the 14th Amendment’s Equal Protection Clause.
- Mapp v. Ohio (1961). Overruling Wolf v. Colorado (1949), the court said in a 6-3 decision that evidence gathered by authorities through searches and seizures that violated the Fourth Amendment could not be presented in a state court—otherwise known as the “exclusionary rule.”
- Gideon v. Wainwright (1963). Justice Hugo Black’s unanimous opinion invalidated Betts v. Brady (1942) and required state courts to appoint attorneys for defendants who cannot afford to retain lawyers on their own.
- Miranda v. Arizona (1966). In a 5-4 opinion, Chief Justice Earl Warren concluded that police violated Ernesto Miranda’s rights by not informing Miranda that he could remain silent and also ask for an attorney during interrogations. The ruling invalidates two court rulings from 1958: Crooker v. California (1958) and Cicenia v. Lagay (1958).
- Katz v. United States (1967). In a 7-1 decision (Justice Thurgood Marshall did not take part in the case), the court determined that a man in a phone booth could not be wiretapped by authorities without a warrant from a judge. The decision overturned two prior Supreme Court decisions: Olmstead v. United States (1928) and Goldman v. United States (1942.)
- Brandenburg v. Ohio (1969). The court decided that Ohio’s criminal syndicalism law, barring public speech calling for illegal activities, was unconstitutional on First and 14th Amendment grounds unless the speech incited “imminent lawless action.” The decision overruled Whitney v. California (1927).
- Gregg v. Georgia (1976). In a 7-2 decision from Potter Stewart, the court ruled that Georgia’s capital punishment laws didn’t violate the Eighth and 14th Amendment’s prohibitions on cruel and unusual punishment. The court invalidated McGautha v. California (1971), a prior death-penalty case.
- Planned Parenthood of Southeastern Pennsylvania v. Casey (1992). A divided court invalidated parts of two prior decisions, Thornburgh and Akron I, as inconsistent with Roe v. Wade.
- Atkins v. Virginia (2002). The Supreme Court held that executions of intellectually challenged criminals were “cruel and unusual punishments” barred by the Eighth Amendment. The decision overturned Penry v. Lynaugh (1989).
- Lawrence v. Texas (2003). Justice Anthony M. Kennedy, in a 6-3 ruling, cited the Due Process Clause and invalidated a Texas law making it a crime for two persons of the same sex to engage in sexual conduct. The decision overturns Bowers v. Hardwick (1986).
- Citizens United v. FEC (2010). By a 5-to-4 decision, Justice Anthony M. Kennedy writes for the majority and says the First Amendment did not permit the government to ban corporate funding of independent political broadcasts during election cycles. The decision overturned Austin v. Michigan Chamber of Commerce (1990) and parts of McConnell v. FEC (2003).
- Obergefell v. Hodges (2015). In a 5-4 opinion, Justice Kennedy said the 14th Amendment’s Due Process Clause guaranteed the right to marry as a fundamental liberty that applied to couples regardless of their sex. The decision overruled a one-sentence ruling in Baker v. Nelson (1972).
- Janus v. American Federation of State, County, and Municipal Employees (2018). In a 5-4 opinion from Justice Samuel Alito, the court said the state of Illinois violated the First Amendment by extracting agency fees from nonconsenting public-sector employees. The decision overturned Abood v. Detroit Bd. of Education (1977).
All case material above is quoted directly from Scott Bomboy in Constitutional Daily. For some reason, a few important cases are not mentioned, so I will add a few to Bomboy’s summary.
- Loving v. Virginia (1967). The Court unanimously ruled that Virginia’s statute outlawing interracial marriage violated the equal protection and due process clauses of The Constitution
- Roe v. Wade (1973). Justice Blackmun’s opinion stated that Texas’s ban on abortion violated the appellant’s right to privacy, assured by the 14th Amendment. The opinion was nuanced in that it established different standards for state action based on the trimester of the pregnancy. No State inference was allowed in the first trimester; in the second trimester States may regulate for issues related to the mother’s health In the third trimester, States may prohibit or regulate abortions, except to save a life.
What you will notice about almost all of the cases noted above is that the decisions expanded rights, even for corporations. What we don’t see are cases overturning precedent in order to strip individuals of their rights. Yet, what we see in Alito’s opinion is exactly that. It is a case that will strip women of a right they have had for over 40 years—the right to personally control their reproductive processes.
In its broadest terms, the State, largely composed of a bunch of old guys, will take control of every American woman’s womb away from her and turned it over to over to state legislatures, many of which are prepared to put an end to abortion. That is a vastly different thing from Brown v. The Board, and every one of the justices supporting Alito knows it.
What difference does it make that abortion is not mentioned in The Constitution?
Alito makes much ado about how Roe simply pulled women’s right to control her reproduction out of some legalistic hat. One might be willing to give this argument some measure of credence, but The Constitution also says nothing about corporations, yet they now have some First Amendment rights concerning contributions to political campaigns.
Alito writes that any “substantive due process” claim like that in Roe must be deeply rooted in our nation’s history and traditions. Marriage in not mentioned in The Constitution, and legal protection for interracial marriage is not something deeply rooted in or nation’s history and traditions. Contraception, which was illegal for many years, may not be something considered “deeply rooted.” Yet, all of the above are constitutionally protected.
Will the upcoming case affect other rights?
Alito goes to lengths to stridently indicate that the upcoming ruling will have no effect on other rights. Well, time to call “bullshit” on that statement. If there is no constitutional right to privacy, which allows women the right to make decisions concerning their own body, then a number of other rights are truly at risk.
Following Alito’s logic, not his rhetoric, overturning Roe will affect a number of other rights. One doesn’t see sex or marriage in The Constitution, yet rights attaching to those issues are currently protected by The Constitution. Members of the LGBTQ+ community can marry, as can individuals of different races. Those rights are now protected by The Constitution, while The Constitution says nothing about such issues. In fact, the heart of those rights is deeply buried in the logic of Roe and Griswold.
What about the use of contraception? What about those forms of contraception that pro-forced birth advocates consider abortifacients? What about those fertilized eggs prepared for IVF but not used? What about using vigilante justice to enforce state mandates, legislatures using individual citizens to report women or physicians to police or to sue them?
The draft decision opens a Pandora’s Box of enormous size. If Justice Alito sees the current situation as chaotic, then all he needs to do is sit back and watch as klaverns of neanderthal state legislatures begin to sink their sharp teeth into legislation regulating abortion and disputing other rights to privacy that citizens have accrued over these last 60 years.
What about the “safe havens” of Justice Barrett?
Though this argument may not be mentioned in Alito’s draft, it deserves some attention. The most recent appointee to the Court was very eloquent about the fact that if a woman didn’t want a baby, then she could give birth and leave it at a “safe harbor.” This is the sort of fairy tale that middle class White anti-abortion women tell the world. What this fairy tale ignores is that pregnancy is not a burdenless or risk-free process. A 2012 article in a peer-reviewed article used national data and concluded that the mortality rate for births with live deliveries was over 14 times higher than the death rate from induced abortions. Such differentials are even higher when one compares rates among racial or ethnic groups versus white American women and rates across socioeconomic status.
Amy Coney Barrett and Religion
Okay, she lied about respecting precedent when questioned about Roe. But that horse has left the barn. What I am concerned about is her commitment to her religion, which is something close to Dominionism or Theonomy. These doctrines focus on implementing a government based on Christian principles (largely Old Testament). Time will tell how deeply she will dig into this well of religious bigotry as she reaches her decisions. Dobbs is not a good sign. She went along with Alito, but I wonder how much of her decision was based in some part (large or small) on her commitment to a religious doctrine in which women’s basic role is to bear children and meekly submit to their husbands. As Rachel Maddow says, “watch this space.”
What should one make of the Justice Thomas’s musings about the idea (not in his concurrence) that support for abortions is racially discriminatory?
Alito steers clear of this argument, but it bears mention. The current longest serving justice has danced around the issue, but he seems to believe that support for abortion is racially discriminatory. Thomas backs this view with statistics such as those indicating that from 1990-2006, Black women had 63.9 abortions per 100,000, and White women had 21.5 abortions per 100,000. The dynamics of this difference lie in differences in socioeconomic status, access to effective contraception, and differentials in family dynamics. However, abortion supporters are, according to this logic, surreptitiously doing the work of White Supremacists.
This entire argument seems very much like a response to the American far-right’s version of replacement theory, which holds that Whites, unless they increase their population proportion, will be (horror of all horrors) “replaced” as the dominant racial/ethnic group in America. It is important to remember that, historically, ever generation faced with demographic change has its coven of right-wing alarmist. The mid-19th century had its Know Nothing Party, its origins rooted in American nativism and nationalism, that had a considerable following. It also had an agenda aimed at keeping America White and Protestant. Yet, even then, a diverse, multi-cultural America was a reality.
Or, the Justice’s mutterings about racial discrimination may just be a way for him to mask he and his spouse’s conservative antipathy to abortion with rumblings that make the Justice seem to be his race’s champion. Unfortunately, all we know for sure are the actions of the Justice, not his real motivations.
Get Ready for a Cruel, Crazy Time.
Louisiana has already passed a law classifying abortion as homicide. Over a dozen states already have trigger law that outlaw abortion in one way or another as soon as Roe is overturned. Officials in other States have indicated their willingness to outlaw contraception.
What are Justice Alito and his cabal of justices going to do when the appeal of a murder case where the woman was convicted of homicide because she had an abortion due to an ectopic pregnancy demands their ruling? What will Justice Sam and his friends do when the person who drove the woman to the physician is sentenced to death for capital murder, since any person involved in a felony that results in death is as guilty of murder as the “perpetrator” herself.
That is some crazy shit, but it is not beyond the pale, given the cretinous politicians that dominate a number of states. Think this idea is outlandish? One of the definitions of capital murder in Texas is the murder of a person under 10 years of age. When the Texas Leg decides that life begins at conception, then you best hang onto your hat.
If Alito thinks Roe caused unrest and confusion, then, to take a line from a classic film, he and his buddies need to “fasten their seatbelts, it’s going to be a bumpy flight.”
Conclusions: Oh, woe is me, or, the more grammatically correct phrase—Oh, woe is I.
At this point, the essayist is expected to offer a discussion of further implications of the decision and how it fits into the current political climate. I think that the implications of the decision are clear, and its place in the current political situation is not at all mysterious. Instead, I offer a more general commentary of the current, and I fear future, political climate in this nation.
One of Ari Fleisher’s regular guests is, Chai Komanduri, a Democratic strategist. Fleisher asked Komanduri why Republicans were so taken with Vladimir Putin and other authoritarian leaders. His response surprised me. He indicated that they liked authoritarian regimes like Putin’s because that is their vision for America’s future. At the time I thought his statement was simple hyperbole. Now, I fear he was dead on.
The American right’s anguish of the lost 2020 election and it worship of the big lie means that too much of the nation, over two-thirds of Republicans and roughly one-third of all Americans, don’t believe electoral democracy works in America. This belief is now deeply entrenched in the rhetoric of the Republican party’s current and its future leaders.
Republican candidates in 2022 will invariably kiss the ring of the former, twice impeached, president. Trump was, and will continue to be, a revered authoritarian leader. He cares about nothing but power, as do most current Republican politicians.
Additional evidence of the authoritarian ethos permeating many of the nation’s leaders, comes in the drive of Republicans state officials to disenfranchise Democrat voters, especially those of color. Republicans want their party to choose the voters. They aren’t interested in having voters choose their representatives. After all, in the last three Republican presidential victories, their candidate twice entered The White House even though his opponent received more votes.
We have Republican state officials calling for the banning and burning of books (classic authoritarian tactic) because they are not consistent with the idea of American as a straight, White man’s Christian nation. If you doubt this, then see Marjorie Taylor Greene at the America First Political Action Committee. The leader of the group referred to “young White men” as the “secret sauce” that would make America great again. He also heeded and then led the audience in a powerful refrain — “Putin, Putin, Putin.” Greene is obviously too stupid to recognize that if this group has its way, then their highest aspiration for her is that she will be barefoot and pregnant, while back in the kitchen. Oh, and Paul Gosar spoke at the meeting, too.
One commentator calls the current Republican Party the safe harbor for all those “who missed their chance to be involved in Vichy France (OG reference, look it up).”
In all likelihood, given my advanced age, I may well be dead before the political pendulum swings back from this precipice of authoritarianism, and all this horrible shit goes away. Unfortunately, for those who will be around, it will not be a calm, peaceful rebirth of political decency, empathy for the less fortunate, and a commitment to democratic values.