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It isn’t surprising, but it's still shocking
The news yesterday of a leaked draft decision from the Supreme Court that decimates the precedent of Roe v. Wade produced a cacophony of emotions across the nation. For those who have for decades sought to exploit the weaknesses in our democracy to install a coterie of far-right justices, there is no doubt elation. But polls suggest that while these forces have a majority on the court, they represent the views of a distinct minority of Americans. And it is in this group that a backlash, fueled by an outrage rising to fury, may have begun. What this scenario portends for our country, no one can predict.
The means by which we accessed the court's deliberations, a leak to Politico of Justice Alito’s draft and its support from a majority of justices, immediately became a big part of the story. Speculation is rife about who may have leaked it –– a liberal justice's law clerk warning the nation of what was to come, or someone from the right wing of the court seeking to force alignment among Republican-appointed justices? Many smart legal scholars suggest it is likely the latter, notwithstanding efforts by Republicans to once again blame “liberals.” One theory is that publicly exposing Alito's opinion was a technique to undercut Chief Justice Roberts, who according to some reporting was trying to convince at least one justice not to blow up Roe to the degree Alito proposes. But at this point, it is all speculation.
Most news accounts also noted that the leak is “unprecedented.” If we want to talk about unprecedented events at the Supreme Court, though, let us cast our gaze farther back in our history. The court's intervention to decide a presidential election in 2000 with Bush v. Gore was unprecedented. So too were Mitch McConnell's machinations to block the court appointment of Merrick Garland. Both contributed to the court's current majority, which appears hellbent on scorching legal precedent in a march to desired political and social ends — the will of the people be damned.
All caveats should hold: This is a draft opinion, and things could change. But court experts suggest they are unlikely to at this point.
If this opinion prevails and Justice Alito’s brazen and incendiary language and reasoning dictate a new reality for America, the effects cannot be overstated. This development would expose the court as a partisan political body. The claims that the justices weigh the arguments before them in good faith and with neutrality, that they are restrained in their reach, that they are sensitive to the impact of their rulings on the functioning of the nation, and that they understand the importance of previous court rulings, become nonsensical. The hypocrisy of a movement that lectured America on the harms of “judicial activism” is jaw dropping. But they have no shame and frankly couldn’t care less.
What we see here are unelected politicians who cannot be voted out. That this is a court majority orchestrated by presidents who lost the popular vote only solidifies its anti-democratic reality. The path to the majority was forged by Mitch McConnell, who used the arcane mechanisms of Senate rules to achieve his agenda. Along the way, the American people were sold a story about humble justices who would be measured actors in their tenure on the court. That was a lie, as many suspected at the time. There is no humility in sight; there is a proliferation of hubris. And we must wonder what will be next as the justices salivate at remaking America in their vision. LGBTQ+ rights are a likely target.
Political repercussions are to some extent up to the American people, although we must note this same court has also made political change more difficult by empowering the Republican Party through rulings on gerrymandering and voting rights. How convenient. Nevertheless, a passionate and irate electorate can seek recovery in upcoming elections, despite the hurdles. The facade is permanently off when it comes to what this court represents. Will enough of the majority who opposes this lurch to extremism show up at the polls to make a difference? Will we see more fury, or more apathy?
In the tumult of what this development means on a societal level, we cannot forget its impact on the individual. Countless women will suffer; some will die. Survivors of violence and abuse will be forced to endure more torment. The burden will be felt disproportionately by the poorest and most marginalized, who have no other options. The most intimate conversations between patients and doctors will be dictated by this unelected minority. Their decision will cast a shadow over a generation of young women and girls who will see the rights their elders enjoyed stripped from them.
I believe that this ruling is a major overreach that will tarnish the reputation of the court for a long time. I believe it will likely lead to a passionate and sustained response that could help remake this country. Nothing is theoretical anymore. Sadly, that includes the real world impact of this cruel intemperance.