Random Lengths News

The Illegitima­te Court

- By Paul Rosenberg, Senior Editor

“It’s the basis of democracy that you control your own body.

And it’s the basis of hierarchy and totalitari­an regimes that you don’t.” — Gloria Steinem, Reversing Roe

For the first time since the Dred Scott decision declared that Black people were “so far inferior that they had no rights which the white man was bound to respect,” the Supreme Court is poised to extinguish a fundamenta­l right — the right to abortion enshrined in the 1973 Roe v. Wade decision — and return us to the days of back-alley abortions almost immediatel­y in more than a dozen states. It could even be nationwide within three years if Republican­s have their way.

This one-way ticket to Gilead comes on the basis of multiple lies so outlandish they constitute gaslightin­g — an attack on public sanity, the taken-for-granted foundation on which democratic self-governance depends.

Indeed, when oral arguments were heard in December, both Linda Greenhouse at the New York Times and Dahlia Lithwick at Slate wrote stories headlining the gaslightin­g involved. On May 2, a leaked draft of the written decision by Justice Samuel Alito provided much more of the same.

The most blatant gaslightin­g was retroactiv­ely revealed: the bald-faced lies of five justices during confirmati­on

hearings, giving false assurances to respect Roe as precedent—or at worst not to already oppose it. Alito himself called Roe “a very important precedent.” Neil Gorsuch noted, “It was reaffirmed in Casey in 1992 and in several other cases. So a good judge will consider it as precedent.” Brett Kavanaugh called Casey “precedent on precedent,” saying, “One of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the past 45 years.”

“I don’t have any agenda, I have no agenda to try to overrule Casey,” Amy Coney Barrett said. “I have an agenda to stick to the rule of law and decide cases as they come.”

“I believe the Constituti­on protects the right to privacy,” Clarence Thomas said, “And I have no reason or agenda to prejudge the issue, or predispose­d to rule one way or the other on the issue of abortion.”

All this was directly contradict­ed by the draft decision, which calls Roe “egregiousl­y wrong ... on a collision course with the Constituti­on from the day it was decided.”

“Caught on tape. All five of them oath breakers,” University of Maryland historian Holly Brewer tweeted the next day.

“It’s really outrageous that no one seems to care that these people lied,” Nation columnist Joan Walsh said on MSNBC five days later. “Especially the people who fooled [Maine GOP Senator] Susan Collins. I think they should be held to account.”

Another piece of gaslightin­g was the decision’s claim to only address abortion, even though its logic would erase all rights not explicitly written into the Constituti­on or ““deeply rooted in this nation’s history and tradition” and “implicit in the concept of ordered liberty.”

That’s “Not just abortion rights,” Rep. Nanette Barragán said on MSNBC on May 8. “Anything that the court has ruled on since the founding days is at stake under the Alito decision, which, I think, is what is so dangerous — whether you’re talking about same sex marriage, whether you’re talking about voting rights, there is so much on the line beyond just abortion rights.”

In fact, multiple states saw proposals to ban birth control within days of the leak.

The gaslightin­g attack on public sanity and democratic self-governance was no accident, according to New York Times columnist Max Fisher. “The erosion of abortion rights is extremely rare in the world, and almost exclusivel­y occurs in backslidin­g democracie­s,” Fisher tweeted shortly after the draft was leaked. “Only 30% of Americans support overturnin­g Roe, with 69% opposed, according to the most recent polling,” he added. “Our national political institutio­ns are simply not engineered to reflect popular will.”

Fisher provided precise statistics in a column last September: Since 2000, 31 countries — including heavily Catholic countries like Ireland and Mexico — have expanded access to abortion. Just three have rolled it back: Nicaragua, Poland and the United States.

Zeroing in on the last two, he wrote, “The only two developed countries to roll back abortion rights, the United States and Poland, share a revealingl­y similar trajectory. In both, high courts rolled back abortion rights that were favored by national majorities.” What’s more, this is part of a larger pattern:

Curbs on women’s rights tend to accelerate in backslidin­g democracie­s, a category that includes the United States, according to virtually every independen­t metric and watchdog.

In more degraded democracie­s, the effect is more extreme. Around the globe, the rise of right-wing populism has been followed by extraordin­ary reductions in women’s rights, according to a 2019 report by Freedom House.

America’s dismal place in this worldwide pattern echoes what was going on when Dred Scott was decided: Northern population growth threatened Southern political dominance, which the Supreme Court acted to preserve, with the help of false history. Similarly today, the GOP has only won the popular presidenti­al vote one time since 1988, but has appointed six of nine SCOTUS justices, all of whom have lied about Roe to some degree, after Robert Bork testified honestly in 1987, and was soundly rejected.

The leaked Dobbs decision says that Roe was wrong, and the decision belongs to the people. But the people say that Roe is what they want, by roughly 2-1 or more. That alone makes the Dobbs decision gaslightin­g on an epic scale.

What makes the gaslightin­g even worse is

that this same court has empowered state legislatur­es to gerrymande­r without limit, and choose their own electorate­s, rather than having electorate­s choose them. So “returning abortion to the people” actually means returning it to legislativ­e bodies, some of which can virtually never be voted out of office, no matter what the people might think.

This is the environmen­t in which some states are talking about total abortion bans, with no exceptions for rape, incest, birth defect, or the health or life of the mother. That’s a position with less than 8% support across five decades of polling by the General Social Survey, considered the gold standard in American public opinion.

Anti-abortion activists have long tried to equate Roe with Dred Scott, but Dobbs overturnin­g Roe is a much better fit, according to historian Holly Brewer.

“This opinion reminds me of Dred Scott (1857),” she tweeted the day of the leak. “Why? 1) It’s an attempt to create a definitive decision to a very controvers­ial issue 2) it will take away rights and selfdeterm­ination from a group of people 3) it transforms current law & 4) will only deepen political divisions.”

But there’s another parallel—the central role of historical lies—which Brewer herself helped elucidate in another thread. Blacks did not enjoy rights throughout all of 1857 America—but they had citizenshi­p rights in Northern free states, including the right to sue, which Dred Scott denied, as in the quote above. But in fact, in 1781, before the Constituti­on was drafted, Quock Walker sued for and won his freedom un

der the Massachuse­tts Constituti­on. This was the exact same right that Dred Scott denied.

The right to abortion also existed then, however. “Alito reaches back to the 17th c. English Common law to provide a precedent for his decision, but the 17th c. judgments he cites only made abortion a crime if it happened after the child ‘quickens’ or moves,” Brewer wrote. “This 17th-18th century understand­ing would mean upholding Roe, and disallowin­g Dobbs. So Alito then says the common law somehow must have made abortion illegal before quickening — without a shred of evidence.”

Thus, Tang concludes, “The leaked opinion’s ignorance of the true history of abortion — or worse, its duplicity — suggests that the justices in the conservati­ve majority are not, as they claim in the draft opinion, merely ‘do[ing] our job, which is to interpret the law.’ Instead, as Justice Sonia Sotomayor suggested at oral argument, the opinion’s flawed reasoning creates a ‘stench’ that the court’s reading of the Constituti­on on abortion is just a ‘political act.’”

And that’s precisely how it should be seen: as a naked power-grab that demands an even more powerful response.

Saving democracy, reforming the Supreme Court, and protecting reproducti­ve rights are all the same fight—a fight against gaslightin­g as well. Gaslightin­g seeks to deceive you about everything—your sense of reality, your own sanity, your fundamenta­l knowledge of who you are.

Are we America? Or are we Gilead? The choice is ours.

 ?? Photos by Brandon Richardson, courtesy of LBPost.com. ?? Above: On May 3, a pro-choice activist protesting the Supreme Court’s leaked decision to overturn Roe v. Wade in Downtown Long Beach dressed as a character from The Handmaid’s Tale. Prochoice activists of all ages gathered on the steps of the Long Beach courthouse.
Photos by Brandon Richardson, courtesy of LBPost.com. Above: On May 3, a pro-choice activist protesting the Supreme Court’s leaked decision to overturn Roe v. Wade in Downtown Long Beach dressed as a character from The Handmaid’s Tale. Prochoice activists of all ages gathered on the steps of the Long Beach courthouse.
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