Morning Sun

Ketanji Brown Jackson must wonder what she has gotten herself into

- Eugene Robinson’s email address is eugenerobi­nson@washpost. com.

WASHINGTON » 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 A. Alito Jr.’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 G. Roberts Jr. 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 G. 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 M. Gorsuch, Brett M. 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. Antiaborti­on 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.

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