In the space of one day the Supreme Court gave a new constitutional right to take your gun anywhere you like and took away another - a woman’s right to choose. While the first decision was somewhat drowned in the rather pitiful compromise the nearly twenty Senate “Republicans” offered in background checks and funds for mental health care, the latter evoked a spontaneous backlash which will endure between now and the November midterm elections. It was an outrageous radical decision putting once again the onus on each state to decide whether to allow abortions or not.
In question is whether nine unelected Justices, living in a bubble, can inflict their religious beliefs on three hundred and thirty million Americans. Four of the five radicals who backed the majority opinion were appointed by Presidents who didn’t win a majority of votes. All this taking place contemporaneously with the the January 6 Committee’s eviscerating post mortem of Trump’s violent coup of the US Constitution.
The decisions by the Supreme Court reinforce the allegation that it is nothing but a de facto political wing of the “Republican Party”. (An NPR poll showed that fifty percent of the population thought that the judges decision was based on politics not law). The latter fact as well as the unravelling of Trump’s coup conspiracy are bound to challenge the conventional wisdom that rabid inflation and gas prices are going to give the “Republicans” an overwhelming victory in the midterm elections. This ruling will bolster Biden in framing the future of America as a values issue as to “Who we are and who we want to be”. Clarence Thomas said next on the list of prohibitions was same sex marriage, same sex intimacy and contraception.
NO LONGER ROBERT’S COURT
In the words of Chief Justice Roberts who voted in favor of the return to the Wild West on the gun issue but had enough insight to vote against the women’s right to choose motion arguing, inter alia, that this was “…a serious jolt to the legal system…urging judicial restraint”. He pointed out that the complaint before the court did not involve this conditional issue but rather the period in gestation that a termination of pregnancy could be permissible.
The Robert’s Supreme Court has become the Thomas/Trump/McConnell Supreme Court. Roberts was involved in anti abortion movements before he became the Chief Justice. However he recognizes established precedent as a basis for jurisprudence. He can no longer have it both ways, namely, fulfill right wing agendas and have the judicial respectability he so craves. The Supreme Court, has according to the latest poll a twenty - five percent approval rating. While Roberts cares there are five other “Republican” activists who don’t give a hoot.
TRUMP DELIVERS ANTI ABORTION JUDGES WHO DELIVER
To jog memories this judicial mayhem was powered by Trump’s three Supreme Court picks whom he reassured his Evangelical base that they would vote to overturn the fifty year old constitutional decision to allow women the right to an abortion - a right which had been reaffirmed again and again. Two of those picks were not rightly the choice of Trump but the wily McConnell had brazenly, manipulated the Senate proceedings, to deprive the Democrats of those nominations.
The three Trump appointed Judges were not as forthright as Trump was as to their attitude towards the abortion law which was backed by the privacy provision of the Constitution. In their nomination hearings they left any rational person, including a few undecided “Republicans”, that they would support the well established right. So did Justice Alito, the author of the opinion, in his confirmation way back. Clarence Thomas when asked at his nomination hearing glibly lied that he believed the Constitution protected the right to privacy.
Jay H. Ell will not dignify the nonsense Justice Thomas penned in any detail but will point out that the Justice in his supporting brief argued that the rights to contraception, same sex marriage and same sex intimacy, which were predicated under the same constitutional provisions as abortions, should be the next to go. Justice Thomas forgets that his interracial marriage is as is the abortion right also been enshrined as an act of privacy.
The three liberal judges, two of whom are women, said that the fifty year old precedent was struck down not because of new scientific developments or societal changes, but due to changes in the makeup of the Supreme Court itself. They also argued that the new law “..says from the very moment of fertilization, a woman has no rights to speak of”. Justice Elena Kagan pointed out the obvious that this relegates women to second class citizens. The Trump nominee Justice Amy Barrett’s contribution to the new legislation showed how totally out of reality this privileged member of society was when she argued that carrying the fetus to term would not be disadvantageous to a woman, who could anonymously leave her baby at a police station or hospital and carry on with life. She has to be unaware that there are four hundred thousand foster children that nobody wants to adopt. All five were comfortable that several “Republican” states were making no exception for rape and incest.
THE REAL IMPACT ON A WOMAN’S CHOICE
Currently in the red states abortions facilities are far and few between. There has been State legislation that has hampered the services to the extent that they are minimal. While the Supreme Court decision enhances the States’ ability to bring that to zero including for rape and incest and sometimes even disregarding the health of the mother. Previosly some red states like Oklahoma had provided a haven for abortions but that is now over. Even though rights had been hard to come by a blanket ban will produce much more hardship.
So for a long while there have been limited abortion services in the Red States and the society adapted. The recent decision was not unexpected and preparations have been put into place to cope including to ship those that need shipping to the blue states that are preparing for the onslaught. A non profit organization will put mobile units on State borders and the international Aid Access has been making preparations for what they considered inevitable. Large commercial companies have all stated that they will pay the costs for out of State care. But most importantly the termination of pregnancy has changed dramatically since 1972. The majority of abortions are now affected by the taking of pills which are highly effective. Also vacuum extraction is a simple outpatient procedure early on.
The Governors of the “Republican” states have said that to go out of state will be illegal as will the oral hormonal procedures. They can stand on their heads. How on earth are they going to police it? Are they going to do what they did on the border monitor menstrual cycles? Are they going to open all parcels and letters addressed to women? The social media companies, excepting Trump’s of course, have flat out said they will not provide records of conversations in this regard. Biden is going to initiate an Executive order that will facilitate interstate travel.
The real problem lies in the smashing of the fabric of American democracy that the Supreme Court has inflicted.
THE IMPACT ON DEMOCRACY
A large section of America is reeling in disbelief at the brazenness of the radical members of the Supreme Court attempting a coup with the same revolutionary abandon that their sponsor Trump had shown in a breath taking disregard for constitutionality. Jay H. Ell on June 1 had blogged on “Guns, Culture, Politics, Money, The Supreme Court and Tiny Coffins”,which gave some of the background of how this all came to be. However everyone is still clumsily trying to frame the action and the further implications of it in terms of the democracy America was believed to be. In essence that analyzing is denial. This outcome is as a result of decades of preparation by the Federalist Society, it was delivered by the midwifery of Trump who to put it at its kindest does not play by the rules and maneuvered by McConnell who maintains a pretense to the rules, tradition, institutions and democracy.
It was Alexander Hamilton who described the Judicial Branch as the least dangerous arm of the government as itself had no army or infrastructure to ensure its rulings. As Hamilton put it it had, “no influence over the sword and the purse”. Ironically, it is reliant on the social fabric and the democratic institutions to uphold it’s rulings which cannot be challenged.Taken to its extreme which is the way one has to hypothesize and to a certain extent has been exhibited the Supreme Court it is the most powerful force in America. Jay H. Ell has to believe that the weary Founding Fathers envisioned its role akin to a baseball umpire, “There maybe balls there maybe strikes but they ain”t nothing till I call them”.
So what can be done?.
THE SUPREME COURT’S CONSTITUTIONALITY
Ironically other than there should be a Supreme Court there is nothing in the Constitution that can protect its integrity or anything about it. Of course the Justices themselves could be impeached but that requires a bipartisan vote. The Senate that would “hear” the case is so designed that the minority of the population have disproportionate representation - Wyoming with a population of less than a million have the same number of Senators as does California which has forty - four million. Put another way if the Senate didn’t impeach Donald Trump for instigating a violent coup they are not going to impeach a “distinguished and learned” jurist of another party.
Strictly speaking the whole ball of wax could be undone if Democratic Senators Manchin and Sinema didn’t hold to the “gentleman’s” agreement that such a motion needed sixty votes. All the ruling party in the Senate has to vote that the Supreme Court needs thirteen judges. So If suddenly the latter two stopped fighting fair in a contest where the other side have abandoned the rules then Biden could appoint four more judges to the Supreme Court and that would be that.
However what would stop “The Republicans” should they get fifty one votes in the next election voting for another six more judges and President Pence nominating six Evangelical Judges. This may sound trite but the whole scenario is part of “The Brave New World” that we currently are entering. If the Democrats don’t do anything there is at least twenty - years of the current court and Justice Thomas has told you what they will do and worse. Justice Thomas is not waiting to hear the merits of a case - he has decided.
In short the Supreme Court is precipitously close to being a totally undemocratic component of government and nobody knows that better than Chief Justice Roberts.
THE POLITICAL IMPACT ON THE MIDTERMS
The "Republican" response has been mooted at the decision to say the least. The only Presidential candidate to come out in favor is former Vice President Mike Pence. Trump at his most recent rally hardly even mentioned his great victory. “Usually reliable sources” state that while he hails the decision he is “fretting” about it. Mitch McConnell has welcomed it but each and every other “Republican” dignatory and presidential candidate is AWOL. Rick DeSantis who is challenging Trump in the polls, as Governor of Florida is in no rush to take advantage of the Supreme Court ruling which leaves it up to the States. Nor is he like the Governors of Illinois and California going to create a sanctuary for those that might need an abortion. The “Republican” Governors of blue States like Connecticut and Maryland have said they are not remotely interested in limiting abortion care. The issue cannot be ignored as the Evangelical base are madly exited. They are Trump’s base and probably will become Pence’s base.
The “Republicans” could have done without this victory. It can potentially split them in several directions.
While the “Republicans” hope this will all go away, abortion and guns will become the top issues for the Democrats. Biden led with the fact that these are the issues for the midterms. Also for the first time in a while the Democrats for State legislature have policies they can really run on. On top of it all Trump is unravelling in plain sight. He still has his following so he can cause havoc. Half the “Republican” candidates for the midterms believe in “The Big Lie” which even Fox has abandoned.
It remains to be seen how this all turns out.
AT THE END OF THE DAY
The future ain’t what it uses to be in American democracy. In addition to the Trump coup there is the Supreme Court becoming untethered.
As a background to all of this the January 6 Committee investigation rolls on while the legal investigations into Trump’s coup proceed apace. Congressman Raskin’s promise that the revelations would bring down the House now appear like an understatement.
Israel have facilitated access to abortions. Their Minister of Health claiming that they were spurred on by the “sad” US Supreme Court Decision.
Notwithstanding all of the above Trump is still the most powerful figure in the “Republican Party” which as matters stand is still his MAGA operation. The Evangelicals and the gun rights people owe him big.
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