Ketanji Brown Jackson must be wondering what she has gotten herself into
Following the leak of Justice Samuel Alito’s draft opinion striking down Roe v. Wade, the 1973 ruling that protects the right to abort a pregnancy, how can the justices trust one another? How toxic must the atmosphere be inside the high court’s cloistered temple?
Judge Ketanji Brown Jackson must be having second thoughts. When she takes her seat on the Supreme Court, she will be joining an institution whose out-of-control majority values religious dogma — and raw political power — over the freedoms our Constitution is supposed to guarantee. And she’ll become the junior member of a club that increasingly seems riven by animosity.
Following the leak of Justice Samuel Alito’s draft opinion striking down Roe v. Wade, the 1973 ruling that protects the right to abort a pregnancy, how can the justices trust one another? How toxic must the atmosphere be inside the high court’s cloistered temple? And what hope could a clear-eyed newcomer have that the atmosphere in which she’ll spend the rest of her career will get any better?
The leak, which Chief Justice John Roberts is right to call a “singular and egregious” breach of trust, is only a symptom of a larger problem. Rather, the success of a decades-long conservative effort to capture the high court means the justices are poised to contract the rights extended over the past half-century.
When Justice Stephen Breyer retires, Jackson will join Justices Sonia Sotomayor and Elena Kagan in what promises to be an enduring and increasingly marginalized minority. With the confirmation of Amy Coney Barrett in 2020, Roberts, an institutionalist keenly respectful of precedent and protective of the court’s image, no longer has the power to act as a swing vote between the court’s evenly balanced liberal and conservative factions. He can no longer temper the zeal of a five-justice majority determined to impose a retrograde view of Christian morality upon a diverse and divided nation.
Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, Barrett and Alito are in charge — and will be effectively running the court for years to come. Jackson will probably enjoy pleasantly collegial relationships with some or all of them. If she is as smart and skilled a jurist as she seemed during her confirmation hearings, she might even occasionally persuade one or more of them to agree with her analysis of an issue. Realistically, though, she must know that at least until the court’s roster changes, on most hot-button cases, she will be limited to deciding how passionate her dissenting opinion should be.
And when the justices all meet in conference, she will look around the room and know that Thomas, Alito, Gorsuch, Kavanaugh and Barrett all dissembled — arguably, flat-out lied — during their
Senate hearings. All were asked about Roe v. Wade. All quite properly declined to say how they would rule if Roe were challenged, but went on and on about how faithfully they would respect precedent. Alito even noted that Roe has been upheld several times, which establishes it more firmly as the law of the land.
But only until he could muster the votes to overturn it, apparently.
Shocking as it is to read, in black and white, a draft decision taking away a woman’s right to choose, no one should be surprised. Anti-abortion fervor and money have fueled the Republican Party for decades, and Republican presidents have stocked the federal judiciary — including the Supreme Court — with conservative “originalists” and “textualists” who are willing to ignore the original text of the Ninth Amendment:
“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
In other words, the Constitution does not need to include the word “abortion” for reproductive rights to be “retained by the people.” I always thought Roe was quite firmly grounded in protecting a woman’s absolute privacy right to bodily autonomy until a developing fetus reached viability, at which point competing rights had to be weighed. And no, the Constitution doesn’t have to include the word “viability,” either, for a woman’s “retained” right to choose to be guaranteed.
But Roman Catholic and fundamentalist Christian dogma holds that an embryo’s rights begin at conception. To drive a stake into Roe’s heart, Alito’s draft vitiates privacy rights in a way that is utterly chilling. He goes out of his way to claim his ruling in Roe would not call into question other landmark privacy-based rulings, such as those guaranteeing the right to use contraception, to have sex with a person of the same gender or to give same-sex couples equal access to marriage, but he is being disingenuous. The draft Roe opinion puts those and other decisions squarely in the crosshairs.
How long do you think it would be before some red-state governor, eager to court the fundamentalist base, tried to outlaw same-sex marriage?
That’s the kind of battle Jackson can look forward to having to fight. I admire her for being the first Black woman confirmed to the Supreme Court. I admire her even more for knowing what she’s up against and still actually taking that seat.