#344 Musings Beyond the Bunker (Friday May 6)
Good morning,
I’ve gotten a lot of mail about the Supreme Court’s likely striking down Roe v. Wade in an exercise of base power, ignoring precedent and the public’s expectations, without regard for the sentiments of the vast majority of the populace, and a victory of the sophistry of “only reading the words” over the context and intent of those words and their applicability to changing conditions.
There is too much more to be said about this ridiculous exercise in judicial activism and lawmaking.
The important thing to remember here as this is NOT the ultimate victory that the anti-abortion activists have been seeking. It is merely the biggest victory to date in a long war that is not over yet. Troops are now being deployed to adopt a national ban (or severe restrictions) on abortions. Troops are being deployed to take aim at other rights we would have thought reasonable and inviolate only months ago.
MAJORITY RULE, RIP
Anti-majoritarian rule is the order of the day. This Court is complicit in a movement to lock-in continued rule by a minority of the population. How is minority rule ensured?
The Electoral College is established in the Constitution. It ensures the continued over-representation of small, rural, conservative states in determining the presidency. We have seen several presidents elected with a minority of the popular vote and there will be more to come. Changing this will be difficult, if not impossible. I strongly doubt we will see a constitutional amendment in our lifetimes.
The Senate also is established in the Constitution. It also provides disproportionate representation of the less populous states. The difference here is that there are TWO factors at work here. The first is the Senate representation codified in the Constitution. The other is the prolonged disenfranchisement of the District of Columbia and Puerto Rico. This can be fixed. One of Biden’s greatest gaffes was not staking out a claim for democracy and fair representation early in his term. Why he didn’t schedule a national address to announce his support of representation of Black and Latino Americans, in D.C. and Puerto Rico, is a mystery to me. Sure the Republicans have suggested that Statehood is just a power-grab by the Democrats. But this is a sword worth falling on. Biden could have solidified Democratic support in these communities and could have resolved an inequity. Statehood requires only a majority vote in the House and the Senate. No super-majorities required.
The Court and its politics historically have been dependent upon the party in power and the lifespans of jurists appointed for life. As unfair and random as this would seem, Mitch McConnell and his array of sycophants and ideologues wrested a Supreme Court slot away from the ordinary course by denying President Obama’s nominee, Merrick Garland, from even getting a hearing. It was theft, pure and simple. Biden’s second “great gaffe” of his first hundred days was not proposing term limits on Supreme Court Justices (either based upon tenure or age; there are a number of proposals that have been floated) and not trying to rectify the wrong committed by the Republicans. He should have moved toward two additional Supreme Court seats to “rebalance” as things would have been, had the Republicans not violated their Constitutional duty of advice and consent. Those seats could have been of a limited duration, with a phased-out reduction to the current nine-seat Court. There are ways to make it not permanent and defeat the notion of “court-packing.” It is, after all, the Republicans who packed the current court.
Gerrymandering of the House is a real problem. While the Senate is skewed constitutionally, the House theoretically is not. But because politicians in many states set the districts, the result is manipulated. As if that’s unfair enough, check out the recent federal court determinations on gerrymandering. Democratic efforts have been met with opposition, whereas some Republican efforts have been upheld.
One would think all of this anti-majoritarian stuff is just in the pursuit of power and position. But not so. The anticipated ruling overturning Roe is clearly a minority view in America. Most people favor abortion rights and reasonable restrictions on them (polls suggesting as many as 80%), particularly in late-stage pregnancies. Whereas the Court has some awful history of rulings (see, e.g., Dred Scott and Plessy v. Ferguson), as reprehensible as those rulings were, they were reflective of public sentiment at the time. In this case, it is clearly not. Like it or not, the courts are, at least in part, should be reflections of who we are at the time, as well as the circumstances in which they act. This one doesn’t see it that way.
SUPREME COURT REPUTATION, RIP
For years, the Court was seen as the “non-political” branch of the government. No more. The Supreme Court safely maneuvered itself to be just another political branch of the government. This decision, the evisceration of the Voting Rights Act, upholding of gerrymandering and, I fear, others that will follow it, share two things in common:
Maintaining a conservative stranglehold on the levers of power
Propagating minority views on “social issues,” not held by a majority of Americans
But there is another insidious aspect of this. The advice and consent process of the Senate has been laid bare as merely a partisan farce. And, while both parties share in the blame, the Democrats are using knives and the Republicans are using automatic weapons. Setting aside the McConnell travesty, it doesn’t even matter what the facts may be. Plus, the system allows nominees to lie in public and, because of lifetime terms, there is no consequence. Lisa Murkowski and Susan Collins, who still cling to the notion that the Republican party is what it once was and there is a place there for them, were satisfied by answers provided by the three Trump nominees regarding their views of Roe v. Wade. Imagine the snickers when behind closed doors, when Justices Kavanaugh, Barrett and Gorsuch recall their disingenuous statements to Congress that “Roe v. Wade is settled law.” Poppycock. They played the more moderate senators like violins.
A DISTURBING FACTOID
“There have only been three Justices who were appointed by a president who lost the popular vote, and who were confirmed by a bloc of senators who represent less than half the country. All three of them sit on the Supreme Court right now, and all three were appointed by Donald Trump.”
And to think that one of these was a stolen seat, to boot.
THE RAMIFICATIONS OF OVERTURNING ROE V. WADE
Harvey Englander observes the obvious, namely, that “the political party that wants to keep government out of the boardroom wants to have government in the bedroom.” Harvey does not a small upside, namely, that this decision could be a motivating factor for young voters and suburban women to vote in November.
Dana Gordon raises some of the obvious questions:
· If a fetus is a person, what happens with a miscarriage? Will there be a hearing into the cause? Will there be a criminal trial?
· What about a mother with a cancer diagnosis, who can’t carry a child to birth?
· What if a mother’s life is at risk?
· What about a pregnant woman who is in a car accident? If the fetus dies, is it vehicular manslaughter? If the pregnancy is compromised, should it nonetheless be forced to continue?
· What about the exceptions for rape and incest? If the fetus is a “person,” then these exceptions would be murder.
· What about the mental health risk to an unprepared or unstable mother?
· What about ectopic pregnancies? Run the risk of the mother’s death from internal bleeding?
· What about underage girls? Should a 14 year old be mandated to carry a child to term? And what if she’s been raped?
· What about multiple viable implanted eggs after in-vitro fertilization? Can the parents selectively reduce them, increasing the odds that others will survive?
Dana notes that there will be far more births, many to those who don’t want and can’t provide for children. Will the same people who encourage these births also provide medical care, parental leave, food stamps, and other government support for these people forced to carry a fetus to term?
Finally, she shares with me the irony that the Supreme Court, upon learning of the leak of the draft opinion, is outraged by the loss of their privacy. Yet the loss of privacy for millions of women seems okay.
THE DOCTOR IS IN
Then there is Bobby Katz, an obstetrician/gynecologist, who many know just a little bit more about this issue than does Neil Gorsuch (or, for that matter, any of us). He says we’re already seeing Texans of means finding their way to California for abortions. But he raises the issues of chromosomal and structural abnormalities and maternal morbidity, which now apparently will be the domain of politicians, rather than clinicians. Should we expose women with cardiac or cancer histories to carrying to term and risking their lives?
THE LAWS, THEY ARE A-CHANGING
The Republican right is patient and relentless. They will wait patiently for Republican majorities in the House and Senate (and don’t doubt for a moment they won’t waive the filibuster) and a Republican president to pass national legislation restricting abortion. Sure, they’ve been arguing for decades that this is something for the states to decide. Well, until it isn’t. If they control Congress and the presidency, you can be assured of this. Then we will all be in the net of Gilead—not just the red states.
And it won’t stop with this.
COUSIN CHRIS
Meanwhile, my cousin asks the question, “Is it time to overturn Marbury v. Madison?” I don’t have the bandwidth for this—at least not today. But remember that it is a court established concept to which the other branches acquiesced. To pull back would require herculean effort and political cost.
I’m sure there will be more to say soon.
Have a good day,
Glenn
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