Linda Greenhouse ("The Supreme Court Gaslights Its Way to the End of Roe") cites several instances of the “nonstop gaslighting” by the Republican men and Justice Barrett during this week’s argument setting up the forthcoming repudiation of Roe v. Wade. For instance, Brett Kavanaugh’s invocation of Plessy v. Ferguson:
More gaslighting: The superficial plausibility of Justice Kavanaugh’s analogy between Plessy v. Ferguson and Roe v. Wade dissolves with a second’s contemplation. For one thing, Plessy negated individual liberty, while Roe expanded it. For another, Justice Kavanaugh’s list could have been 1,000 cases long without casting any light on whether today’s Supreme Court should repudiate Roe v. Wade.
But the justice’s goal was not to invite contemplation. It was to normalize the deeply abnormal scene playing out in the courtroom. President Donald Trump vowed to end the right to abortion, and the three justices he put on the court — Neil Gorsuch, to a seat that was not legitimately Mr. Trump’s to fill; Amy Coney Barrett, whose election-eve nomination and confirmation broke long settled norms; and Justice Kavanaugh — appear determined to do just that.
While Donald Trump named half the justices who comprise the far right supermajority on the court, the conservative project to transform the federal bench – like the Southern Strategy that wrenched the Solid South from the Democratic Party – began with Richard Nixon’s presidency. Conservatives doubled down – with the rallying cry “No more Souters!” – after a Republican-dominated court reaffirmed Roe with the Planned Parenthood v. Casey decision in 1992.
What a long, strange trip it's been to get us to this point. As Amanda Hollis-Brusky and Joshua C. Wilson explain ("The Supreme Court might overturn Roe. It took decades of scorched-earth conservative politics to get here."), “The road to overruling Roe runs through the 2010 decision Citizens United v. FEC, which effectively deregulated campaign financing.”
With the Citizens United victory, the National Right to Life Committee, the Federalist Society, and the Christian Right legal movement, in tandem with Republican insiders such as Mitch McConnell and Betsy DeVos, accelerated a big money campaign to buy influence in the GOP. Ka-ching! McConnell’s Senate majority was more than willing to trash norms and contort Senate rules to block an Obama nomination to the high court, paving the way for three Trump appointees. (Alex MacGillis documents in his book The Cynic: The Political Education of Mitch McConnell how McConnell took the heat for the entire GOP Senate caucus, in opposing John McCain’s campaign finance reforms, a stance which eventually won the Kentuckian the GOP’s top job in the Senate. See the fourth bullet point at this link for a description of one of McConnell’s convenient shifts of principle to arrive at a position maximizing at that juncture a political advantage for Republicans.)
The agenda of the court’s Republican supermajority is far broader than denying women the right to make their own health care decisions by imposing state restrictions on their reproductive choices. The court’s majority is intent on radically transforming decades of jurisprudence regarding a host of issues, including voting rights, campaign finance, legislative redistricting, civil rights, gun rights, religious liberty, labor law, environmental (and climate) policy, consumer protections, and more.
For more than a generation (beginning with the Warren era), the United States Supreme Court was a beacon of liberty and justice. This was a historical anomaly. In 2021, with a Democratic president leading the executive branch, Democratic control (barely) of the legislative branch, and Republican domination of the federal judiciary, the Supreme Court poses a grave threat to (i) Americans' liberty, (ii) equal protection and freedom from invidious discrimination, (iii) democratic governance, and (iv) the capacity of government to put into place public policy solutions.
Examples of each: (i) The ongoing evisceration of Roe. (ii) Religious liberty decisions that spin out of whole cloth principles that favor the religious views of white evangelicals and conservative Catholics, and disfavor the power of the state to prohibit discrimination or to restrict public gatherings that endanger public health. (iii) A consistent string of decisions opening the door to voter suppression and gerrymandering, while inviting state legislatures to take steps to overturn the results of democratic elections.
(iv) This is territory that clearly harkens back to the Lochner era. By stripping away tools of the state to address social and economic problems (in ways that Democrats embrace), the court imposes a restrictive set of possible solutions (that Republicans endorse), rather than allowing the political process -- with open debate, competitive campaigns, and elections with the possibility of Democratic victories followed by enactment and implementation of policies as pledged on the campaign trail -- to run its course. As I've argued previously, the Republican Party is on a crusade to craft a "partisan constitution." The SCOTUS majority is intent on debilitating normal politics: rigging the system to invalidate public policy solutions opposed by the Republican Party and the big money donors who fund the GOP.
Earlier this week, Ed Meese (yes, Reagan’s A.G., still kicking after all these years out of sight, out of mind) bemoaned the Casey decision and opined, “Now, unlike then, the Supreme Court has six justices who have all expressed some commitment to the Founders’ interpretive principles, and who have all been shaped by the institutions, scholarship and renewed dialogue brought to the legal profession by the Federalist Society, originalism and textualism.”
Balderdash. Strict constructionism, textualism, originalism, and whatever other isms the conservative legal movement is serving up, are not, as Meese puts it, “neutral principles to constitutional interpretation,” nor do justices vetted by the Federalist Society feel unduly constrained by these “interpretive principles.”
Sure, individual justices do occasionally surprise with their interpretations of the Constitution or of legislative statutes. (See Justice Gorsuch on gay and transgender rights.) That's the rare exception, not the rule. With the 6-3 supermajority securely in place we can expect fewer instances where the exceptions win the day.
In the vast majority of 5-4 and 6-3 cases with every Democratic appointee in the minority, the majority’s decisions more closely track the agenda of the Republican Party, than fidelity to the United States Constitution. For one thing, the justices are highly selective in which parts of the nation’s founding document they affirm, largely ignoring the Civil War amendments, for instance. (Is that a mark of neutral jurisprudence, of an unbiased commitment to the rule of law, or does it signal reflexive deference to the GOP voting base and the politicians answerable to those voters?) Moreover, the justices pick and choose, from case to case, whether or not to appeal to constitutional principles at all. (Which clause or amendment justifies the majority’s gutting of the Voting Rights Act?) As Nicholas Stephanopoulos observed regarding election law [item (iii) above] (and which is apparent in other areas):
Two months ago, I suggested, “Based on recent experience, we can expect the Republican justices to be unconstrained -- whenever it is convenient -- by judicial restraint, stare decisis, federalism, or originalism during the 2021-22 session of the court.”
Thus far, I’ve had no reason to reconsider that judgment. The Republican capture of the judicial branch -- including the high court's Republican supermajority -- is a grave threat to democratic norms and traditions, the patterns and practices that have safeguarded American democracy.