Today’s Edition: “A solemn mockery"

December 10, 2021

          [An audio version of this newsletter is here.]

          The reactionary majority of the Supreme Court today ruled that the Texas law prohibiting abortion can remain in effect during the pendency of challenges in lower courts. See Whole Woman's Health v. Jackson. The Texas law was drafted for the express purpose of evading Supreme Court precedent that recognized a fundamental constitutional right.  The decision is nothing less than an affront to the authority of the Court and the supremacy of the Constitution. As Chief Justice Roberts wrote in his opinion dissenting from the ruling,

          The clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings. It is, however, a basic principle that the Constitution is the “fundamental and paramount law of the nation,” and “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, (1803). Indeed, “[i]f the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the Constitution itself becomes a solemn mockery.” United States v. Peters, 1809. The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.

          The reactionary majority thus subordinated the supremacy of the Constitution and the authority of the Supreme Court to the power of state legislatures insofar as abortion restrictions are concerned. As Robert’s dissent notes, the majority’s ruling created an exception to the supremacy of the Constitution based on the “nature of the federal right infringed”—the right to abortion, which the reactionary majority opposes on religious grounds.

          The Supreme Court is rapidly squandering legitimacy that was hard-won over two centuries. The Court’s demise will be a death by a thousand cuts, but the wound inflicted today will be adjudged as the mortis causa by historians.

          To my friends who say that we cannot enlarge the Court to prevent further travesty, today’s ruling should end all debate. It is the Court that has become a solemn mockery, not the Constitution. But the diminishing legitimacy of the Court threatens all of us, not merely the Court. As Professor Laurence Tribe wrote yesterday,

          Hand-wringing over the court’s legitimacy misses a larger issue: the legitimacy of what our union is becoming. To us, that spells a compelling need to signal that all is not well with the court, and that even if expanding it to combat what it has become would temporarily shake its authority, that risk is worth taking.

Concluding Thoughts.

          Today’s ruling reveals that there is one set of rules that applies to the majority’s conservative religious agenda and a different set of rules that applies to other foundational rights in the Constitution—including the right to vote. The ruling in Whole Woman’s Health has relegated the majority of Americans to a status as second-class citizens whose rights under the Constitution can be abrogated by state legislatures promoting the religious agenda of a small minority. That is not what the Constitution says, but it is what this Court has written.

          It is time for all Americans to rise in defense of the Constitution by voting in overwhelming numbers. Only then will Democrats have an incontestable mandate to reform the Court from the ground up. Nothing else can redeem the Court from its present state of derision and scorn.

          Stay strong everyone! We will win. It is just a matter of time.

Talk to you on Monday!