The path forward

June 25, 2022

The path forward.

          There is much to discuss after the Supreme Court’s brutal ruling in Dobbs v Jackson Women’s Health, but the most important question is, “What are we going to do about it?” We have several effective paths forward and must pursue all simultaneously.

          First, Alito claims he is returning the decision of reproductive freedom “to the people and their state representatives.” Let’s ignore (for the moment) Alito’s smoldering bad faith and thinly veiled contempt for the rights of women. We need to flip state legislatures to repeal antiabortion legislation and capture statewide executive offices that can veto legislation abortion bans. While this path is not an answer in every state, it can make a difference in states where the GOP margin of control is thin.

          Second, we must demand that Congress pass legislation codifying Roe. That means gaining a 54-seat majority in the Senate, carving out an exception to the filibuster, and retaining control of the House. Will national legislation be challenged? Sure! Will the Supreme Court invalidate it? Possibly, but it is worth the effort.

          Third, we must break the Supreme Court. Democrats should expand the Court to thirteen justices. This path also requires holding the House, gaining a 54-seat majority in the Senate, and carving out an exception to the filibuster. Expanding the Court requires only a majority vote in both chambers of Congress and signing of the bill by the president. Will Republicans expand the Court to nineteen? Maybe. But what Republicans might do in the future shouldn’t deter us now. Will tit-for-tat expansions of the Court undermine its legitimacy? It is far too late for that.

          Fourth, reproductive choice must be on the ballot in every race. Republicans have finally achieved what they wanted—no right to abortion and no exceptions for rape or incest. We must make every Republican running for every office in the land own the GOP position on abortion in its ugliest manifestation. The outcome in Dobbs is opposed by a strong majority of Americans and should provide a basis for a sweeping Democratic victory in 2022.

          Finally, the right to same-sex marriage, same-sex relations, contraception, and other privacy-based rights must be on the ballot in every race. Justice Clarence Thomas’s concurrence declared war on those rights and invited reactionary legislatures to pass laws to serve as test cases. We would be foolish to assume that the other members of the reactionary majority will not follow his lead, given a chance.

          None of these approaches will be easy or provide a complete answer. Readers have already sent emails that preemptively identify the problems with some of these approaches and dismiss their chances of success. But these are the paths available to us. We can choose to pursue them or do nothing. We must pursue them relentlessly until we have regained control of every branch of government, including the Supreme Court. Only then can we reverse the ruling in Dobbs and preserve other liberties grounded in the same right to privacy that supported reproductive rights for a half-century.

          We are the majority, and American democracy presumes majority rule while protecting the rights of the minority. Republicans are attempting to reverse that presumption by seeking to impose permanent minority rule with no protection for the rights of the majority. That cannot stand. It will not stand. But it is up to us to restore the natural balance to democracy. It is not enough that we vote with greater passion or conviction. We must motivate those who did not believe this day would not come or who were not paying attention. We can do that—if we act with greater passion, conviction, and urgency.

The ruling.

          Alito’s final decision is a judicial insult. In a single blow, he has demoted American women to second-class citizens. It is filled with venom and contempt in addressing a contentious issue on which people of good faith can disagree. He refers to physicians as abortionists when they seek to save a woman’s life or terminate a pregnancy forced on a teenager by a rapist. He misrepresents, minimizes, and dismisses the burdens and risks of pregnancy. He substitutes his Catholic dogma for judicial analysis.

          Alito’s final version of his opinion changed little from the draft leaked last month. As such, it retains the dishonesty and intellectual sophistry of the “deeply rooted tradition” analysis contained in the draft—an analysis that deliberately misrepresents the American tradition relating to abortion. See Aaron Tang in The Los Angeles Times, Op-Ed: The Supreme Court flunks abortion history.

          But most ominously, Alito’s “deeply rooted” analysis signals Alito’s intent to attack other privacy-based rights, such as same-sex marriage. Alito dissented in the Court’s decision recognizing same-sex marriage, Obergefell v. Hodges. Alito wrote in Obergefell, as follows:

          To prevent five unelected Justices from imposing their personal vision of liberty upon the American people, the Court has held that “liberty” under the Due Process Clause should be understood to protect only those rights that are ‘deeply rooted in this Nation’ s history and tradition.’ And it is beyond dispute that the right to same-sex marriage is not among those rights.

          There it is: Alito’s analysis in overruling Roe v. Wade does not stop with reproductive rights. It reaches to same-sex marriage. He said so in his dissent in Obergefell. And Justice Thomas made that explicit in his concurrence in Dobbs:

          In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.

          Griswold recognized the right to use contraceptives of choice; Lawrence recognized the right to enter into a same-sex relationships; and Obergefell recognized the right of same-sex couples to marry. Justice Thomas notably omitted a right based on “substantive due process precedents”—the right of members of different “races” to marry, a right first granted in Loving v. Virginia in 1967. If the Court reverses Loving v. Virginia, Thomas’s marriage to Ginny Thomas would be illegal in some states.

          For a longer discussion of the threat to other rights, see Mark Joseph Stern in Slate, The Supreme Court decision overruling Roe v. Wade puts marriage equality in immediate jeopardy.

          It will take weeks to understand the implications of Justice Alito’s decision, but a good place to start is with Ian Millhiser’s analysis in Vox, The Roe v. Wade abortion decision, explained.

          Finally, for a discussion of self-inflicted damage to the Court’s legitimacy, see Dahlia Lithwick, in Slate, Roe v. Wade overturned: The Supreme Court will pay for abortion decision.

The corruption and illegitimacy of the Supreme Court.

          As currently constituted, the Supreme Court is illegitimate and corrupt. It is illegitimate because two justices appointed by Trump resulted from norm-busting “rules” made up by Mitch McConnell on the fly. Gorsuch sits in a seat stolen from an Obama appointee, and Barrett sits in a seat that belonged to the incoming president.

          The Court is corrupt because Gorsuch, Kavanaugh, and Barrett lied to the Senate about their pre-determined intent to overrule Roe v. Wade. And it is corrupt because Justice Thomas has refused to recuse himself from cases in which his wife assisted in an attempted coup.

          The trust of the American public in the Court has plummeted to an all-time low of 25%. It will decline further if the January 6th Committee proves that Ginny Thomas funneled information about Court deliberations to John Eastman. It will fall further if the Committee demonstrates that Justice Thomas knew of and condoned his wife’s insurrectionist activities.

          Jennifer Rubin succinctly summarizes the death blow to the Court’s legitimacy in her column in WaPo, The Supreme Court eviscerates abortion rights and its own legitimacy. Per Rubin,

The hypocrisy and intellectual dishonesty of the court’s right-wing justices lead to the conclusion that they have simply appointed themselves super-legislators free to impose a view of the United States as a White, Christian and male-dominated society despite the values, beliefs and choices of a majority of 330 million modern Americans.

The court’s decision may result in women’s deaths. But it has certainly killed off what is left of the court’s credibility. And for that, there is no solution in sight.

Concluding Thoughts.

          On a day like today, it does not feel right to end on an optimistic note. Rather, we should acknowledge the anger, frustration, fear, and grief that tens of millions of women in America are feeling after the ruling. There will be a time to rally and rejoin the fight for the dignity and equality of women—a fight we will win.

But today, we should acknowledge what women have lost and give them the time and space to absorb and recover from a once-in-a-generation shock. As they do, everyone in their lives should let them know we are at their side every step of the way. Walk along in silence and listen. Nothing can be “fixed” today, but we can begin the long journey back in the coming days.

          I will be in touch over the weekend.