Abracadabra - Rights Vanish!

I have just one word for the four conservative male Supreme Court Justices and their Handmaid colleague who think women should give birth and drop infants off at the nearest church: Vasectomy.

It would be quite revealing to discover how many of the sanctimonious male prigs who want to control women’s reproductive lives have taken on the responsibility for their own sperm.  I’m guessing the answer is “few,” if any.

The draft opinion in Dobbs v. Jackson Women’s Health is terrifying – and not only for its impact on women’s health and women’s rights more generally.   Many legal analysts have pointed out the dismal “reasoning” offered.  The opinion’s author, Justice Samuel Alito, argues that the word “abortion” does not appear in the Constitution.   Such specious reasoning would put at risk other rights, such as gay marriage, that are not explicitly enumerated in the Constitution.  This opinion violently disregards settled law and shreds the notions of privacy implicit in many rulings and protections under the 14th Amendment.   This ruling could lead to a cascade of reversals of rights previous affirmed by the court.

But these observations are not original.  I am deeply worried about another, broader, political and legal dynamic that this case represents.

This case and others reveal a shift in power that may be irreversible and more corrosive to democracy than the attempted Republican coup.  The shift I observe renders our tripartite system of government nearly impotent.  The mechanism used in Dobbs and and future cases can erode rights and effectively undo decades of social progress regardless of the composition of the legislative and executive branches.  The founders, for all their prescience, left an unintended loophole sufficient to drive a stake through the heart of the republic.

For instance, the court will hear arguments in another affirmative action case in the next term.  That lawsuit against Harvard and the University of North Carolina is an example of what I term “plaintiff shopping.”  A partisan advocacy group, Students for Fair Admissions, founded by Edward Blum, has initiated a series of similar actions seeking to end affirmative action.  They search for a person or people to represent their cause and then use their significant – bottomless – resources to pursue the case. In two prior cases, Abigail Fisher was the poster child, leading to the SCOTUS cases known as Fisher I and Fisher II.

In Dobbs, along with many other pieces of anti-abortion litigation, the “plaintiffs” for whom the pro-life zealots litigate are state legislatures that pass nonsense laws, blatantly unconstitutional, that can be appealed through the system until they reach the sympathetic SCOTUS majority.  And – abracadabra! – abortion rights vanish.  In ancient text “abracadabra” means, “I will create as I speak, i.e. that the act of speech will magically create new realities.”

All of these efforts are funded by a vast network of conservative advocacy groups, in turn funded by many of the richest people in America.

Whether affirmative action, abortion rights, gay marriage, voting rights, contraceptive rights, or any other issue, conservatives have developed a shadowy network of financial supporters, prepared to support litigation aimed at undoing those things to which they object.  The final piece of the strategy was put in place with court-packing, facilitated by the election of a useful idiot, Donald J. Trump.  With the untimely death of Ruth Bader Ginsburg and the hasty confirmation of Amy Coney Barrett, they sealed the deal.

This partnership between conservative ideologues and a long awaited SCOTUS majority can undo nearly any legal precedent or progressive legislation.   Congress and the president are utterly impotent.   Take abortion rights as an example, beyond Dobbs. Democrats are now pressing more urgently to advance legislation – the Women’s Health Protection Act (WHPA) – that would essentially codify in law the protections of reproductive rights lost when Roe v. Wade is overturned.    

But the ruling in Dobbs will eviscerate the legal arguments that were used in Roe v. Wade and Planned Parenthood v. Casey, clearing the way for the court to also overturn the WHPA!   

Using Alito’s astonishing logic that no right is safe unless explicit in the Constitution, this process can undo virtually anything, including the Affordable Care Act, and, at the far end of possibilities, Social Security and Medicare.  The entire New Deal, including workers’ rights, the FDIC and more, could become the Dead Deal.  If you don’t think that the current conservative power brokers want to reverse these things, I’ve got a bridge to sell.

Even if Democrats muster the gumption and votes to bypass the filibuster, there is no legislative act that would be immune from challenge.  Even if Democrats prevail in the midterm elections, maintain majorities in the Senate and hold the presidency in 2024, they will be powerless in the face of the conservative machine and its hand-picked SCOTUS majority.

The founders of our republic failed to anticipate the possibility of a highly partisan court that would be complicit in a long-game strategy to effectively “legislate” by overturning legislation.   Lifetime appointments and judicial independence were supposed to balance the delicate mechanisms of democracy.  Instead they may shatter them.

The only remedy I can imagine is for Democrats to seize the moment, abolish the filibuster, rapidly expand the number of justices and retake the majority.

I fear that is highly unlikely.   

(This post also appears on the website of the Yellow Scene Magazine, a fine publication where I regularly contribute.)