Invigorating, familiar and frustrating outrage at the Supreme Court
WASHINGTON » Sen. Elizabeth Warren, D-mass., cut through the crowd of mostly female abortion rights demonstrators gathered Tuesday morning on the sidewalk in front of the Supreme Court to vent their outrage and indignation over a leaked draft of a majority opinion written by Justice Samuel A. Alito Jr. that overturns Roe v. Wade. And by any estimation, she looked furious.
She arrived without fanfare and began speaking without introduction. She stood shoulder-to-shoulder with protesters as they held up a banner, “Bans Off Our Bodies,” and joined in on the group’s call and response to codify Roe v. Wade into law. Warren turned up long before the organizers erected a small stage and plugged in a microphone. In lieu of that, her bright fuchsia jacket, in the midst of gray skies and marble backdrops, served as a personal spotlight and her voice — crackling with rage — needed no amplification. It cut through the beating drums, the cheers and the muddy background chatter with its sheer ferocity.
“I am here today because I am angry,” Warren yelled. “The United States Supreme Court thinks that they can impose their extremist views on all of the women of this country and they are wrong.”
“I am angry because of who will pay the price of this,” she said. “It will not be wealthy women. Wealthy women can get on an airplane; they can fly to another state. They can fly to another country. They can get the protection they need. This will fall on the poorest women. This will fall on the young women who have been abused, who are victims of incest. This will fall on those who have been raped. This will fall on mothers who are already struggling to work three jobs to be able to support the children they have.
“Well, I am here because I am angry and I am here because the United States Congress can change all of this,” she said. “I am angry, but committed.”
And then Warren paused and took a quick breath. She stopped punching and jabbing at the air for the briefest moment. And then she dug back in, shaking her head in a gesture that spoke of both disgust and determination. “Understand this. Understand this,” she said. “I have seen the world where abortion is illegal and we are not going back. Not ever. So say it with me: We are not going back. Not ever. Not ever. Not ever. Never!”
Alito’s draft opinion was published Monday evening by Politico and Tuesday afternoon, Chief Justice John Roberts confirmed that it was authentic but not final and that he’d ordered an investigation into how the confidentiality of the court had been breached. People are shocked by this lapse of protocol, this egregious disregard for trust. But why should anyone be surprised? All the traditions and norms that have long held this country together have been breaking and fraying since the Trump era. There’s no wonder that the Supreme Court is coming apart at the seams, too. It doesn’t appear as though this country has the capacity to do anything with full-throated dignity and grace.
The other justices included in this tentative majority are Clarence Thomas, Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett. The draft is 98 pages long and spends a good deal of time expounding on the idea that there’s no tradition of a right to abortion because the subject of abortion rights didn’t come up until a few years before Roe was decided in 1973, which suggests that Alito believes that demanding full equality has some sort of due-by date or expiration date. Alito laments that there’s no precedent for recognizing abortion as a right even as he explains why the establishing precedent should be overturned.
It’s a head-spinning and sharply worded opinion and one that uses the political divide over abortion as a reason for the justices to eschew wisdom, mercy and compromise and simply throw up their hands and let the states do what they’d like, which is to essentially bend to the strongest political wind. For Alito, Roe v. Wade is bad because a lot of people found it upsetting and disagreed with it, even though the majority of the country actually believes it should be upheld.
There is plenty to be angry about. Sen. Susan Collins, R-maine, has said that the draft opinion is “completely inconsistent” with what Gorsuch and Kavanaugh told her before she voted for their confirmation. And Sen. Lisa Murkowski, R-alaska, who voted to confirm Gorsuch and Barrett, has had her confidence in the court rocked. These two legislators, who have been supporters of abortion rights, are shaken — shook — by the obfuscations, the misdirections and the half-truths that a host of other people saw clearly but they chose not to see.
There’s so much to be angry about and none of it is new. It’s simply exhausting.
Sen. Amy Klobuchar, D-minn., came to the front of the Supreme Court and told demonstrators that she saw this coming and the way to stop it is through legislation and for that Congress needs to act and then she gave the crowd a pop quiz on civics: “How many votes do we need? We need 60 votes. But not if we get rid of that archaic Senate procedure called the filibuster.” Yes, once again, filibuster is uttered like the magical salve. Banish it forever and the country’s wounds will heal and its broken places will mend.
The demonstrators who’d gathered outside the Supreme Court came with their chants and their cheeky placards and a nice ponytailed woman was offering people snacks from a little plastic grocery bag. Everyone seemed to be hoisting a camera of some sort, whether some long-lens Nikon or a pocket-size smartphone. The moment would be documented a thousand times over but it all had the low-level hum of familiarity. The activists shout potty-mouthed rejoinders to men and women inside stone buildings. They make high-minded declarations equating abortion rights with human rights. They yell and yell and yell. Until they can barely speak. Until they can’t think of anything new to say.
The challenge for nearly 50 years has been in protecting what so many Americans see as a fundamental belief in bodily autonomy from the acid rain of nonbelievers. It’s hard to spend decades on the defensive, keeping your guard up, forever ducking and staying light on your feet trying to avoid a deadly blow. It’s one thing to keep fighting for something that you do not have and another to be constantly tasked with defending something that seems to have always been yours. It’s hard to imagine a right evaporating just like that.
It’s hard to keep fighting a battle you thought was won. People believe in precedent because it’s the only thing that says case closed; it’s OK to move on to the next struggle. Without precedents, we’re doomed to keep having the same arguments instead of reaching new compromises.
Warren’s anger was not unique.
But for just a few minutes, it was blessedly invigorating and cathartic. It cast its gaze toward the future. She didn’t paint a rosy picture. She simply reminded aggrieved citizens that the best way to recover from a gut punch is to breathe, get on the offensive and punch back.