by MARK GABRISH CONLAN
Copyright © 2022 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved br>
On May 2, 2022 the U.S. Supreme Court decisively overturned U.S. politics and society, anid put the most intimate decisions of Americans’ private lives (and not just for women, either!) on the political chopping block. A draft opinion of the Court by Justice Samuel Alito, leaked (likely) by a Court staffer and published on the Politico.com Web site (
https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473) revealed that there are five justices – a majority of the current Court – willing not only to strike down the Court’s landmark 1973 decision in Roe v. Wade but to declare it was “egregiously wrong from the start,” according to Alito’s draft opinion.
In a sweeping 98-page draft, including a 31-page appendix intended to establish that America had a long tradition of restricting or outright banning abortion rights until 1973, Alito called into question the whole idea that the U.S. Constitution guarantees individuals a right to privacy in their personal lives, including how they have sex, with whom and how they deal with the consequences therefrom, good and bad. He pointed out that the Constitution itself does not contain the word “abortion,” as if that were enough to argue that Roe was illegitimate.
Nonsense. The Constitution itself says that the naming of individual rights as protected in its text does not bar the recognition of other rights. The last two sections of the Bill of Rights make this crystal clear. The Ninth Amendment reads, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Tenth Amendment reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The Legacy of “Originalism”
Justice Alito’s draft ruling on abortion in the case now before the court, Dobbs v. Jackson Women’s Health Organization – challenging a Mississippi law that bans abortion after the first six weeks of pregnancy, typically before a woman even knows she’s pregnant – is an example of the so-called “originalist” school of constitutional interpretation. Originalism is based on the belief that the words of the Constitution should be read exactly the way they were written in 1789, or thereafter in the case of subsequent amendments. Thanks to the long-term domination of the Republican Party in selecting and nominating U.S. Supreme Court justices – since 1981 Republicans have appointed 11 justices and Democrats have appointed five – the originalist doctrine has come to dominate American jurisprudence, especially on the Supreme Court.
Originalism flies in the face of the other school of constitutional interpretation, the so-called “Living Constitution” promoted in the early 20th century by Louis Brandeis first as an attorney appearing before the Supreme Court and then as a justice himself. Brandeis argued that the courts should interpret the Constitution in light of what its overall concepts mean now, not what they meant in 1789. He also argued that justices had a social and moral obligation to consider the effects their rulings would have on the real world. The concept of a “Living Constitution” has allowed the U.S. to have the same constitution for more than 200 years, with only one sweeping revision – the Thirteenth, Fourteenth and Fifteenth Amendments, adopted after the Civo; War and enshrining the Union’s victory – while other nations have had to revise and throw out their constitutions far more frequently.
But over the last 50 years or so, Republicans have launched a sweeping attack on the whole idea of the “Living Constitution,” to the point where a Supreme Court nominee who proclaimed a belief in it would almost certainly not get confirmed by the Senate. The notion of “Living Constitution” advocates like Brandeis that, for example, in ruling whether a law regulating wages and hours was constitutional one had to acknowledge the gross difference in economic power between the lowly worker and the giant corporation that was hiring him or her has never been popular among conservatives, especially Republicans. In the early 20th century the Supreme Court routinely ruled that minimum-wage laws, laws protecting workers’ health and safety, and laws allowing workiers to form unions were unconstitutional because they violated workers’ so-called “freedom of contract” to agree to work longer hours for less money and under less safe conditions.
Court’s Righ-Wing Role in U.S. History
In fact, one of the most cogent comments on Alito’s draft opinion in Dobbs came from a U.S. Congressmember who’s also a constitutional law scholar, Jamie Raskin (D-Maryland). He noted that throughout most of our history the Supreme Court has been a conservative, even a reactionary. Institution. He pointed to such decisions as Dred Scott v. Sandford (1857), which stated that African-Americans had no rights white Americnas were obliged to respect and a slave could not escape bondage simply by moving to a state where slavery was illegal; Plessy v. Ferguson (1896), which upheld the constitutionality of racial segregation and said that if Blacks felt bad about being segregated, that was their problem; and Korematsu v. United States (1942), upholding the internment of Japanese-Americans during World War II, ostensibly as a war measure but really out of racism.
Raskin argued that the 16-year tenure of the late Earl Warren as chief justice (1953 to 1969) gave liberal Americans a much more positive feeling about the Supreme Court. Starting with Brown v. Board of Education (1954), which overruled Plessy v. Ferguson and held that “separate educational facilities are inherently unequal,” the Warren court enacted quite a lot of the liberal agenda, from expanding the rights of criminal defendants (the familiar Miranda warnings stating that you have the right to an attorney, and if you cannot afford one an attorney will be provided for you, came from a Warren Court decision) to abolishing mandatory prayer in schools, ending bans on interracial marriage, and, in the 1965 case of Griswold v. Connecticut, ruling that married couples had the right to use birth control. Griswold was especially significant because it found that the Constitution granted Americans a so-called “penumbral right” of personal privacy, especially in how they chose to lead their sex lives, and it was one of the main precedents Justice Harry Blackmun relied on in writing the Court’s opinion in Roe v. Wade eight years later.
But, Raskin and others have argued, as more and more Supreme Court appointments have been made by Republican presidents, the Court has in recent years moved back to its original position as a bastion of reaction. In large part that has been due to the increasing polarization of American politics and the extent to which both major parties – the Republicans far more than the Democrats – have become ideologically driven. It used to be that Republican Presidents appointed liberal or even progressive Supreme Court justices. Dwight Eisenhower appointed Warren and William Brennan, Nixon appointed Blackmun, Gerald Ford appointed John Paul Stevens, and George H. W. Bush appointed David Souter.
That doesn’t happen anymore, and a large part of why it doesn’t is due to the influence of Leonard Leo, perhaps the most important modern-day American you’ve never heard of. In the 1980’s Leo and others organized the Federalist Society, whose purpose was to identify law students with strong Right-wing politics and shepherd them through their legal careers, ultimately getting them jobs as high-powered attorneys with major law firms and/or getting them appointments as federal or state judges. Today no Republican President appoints anybody to the Supreme Court, or to virtually any lower federal judgeship, unless he or she has the imprimatur of the Federalist Society. While Democrats have tended to appoint more moderate justices in the hopes of gaining bipartisan support for their Senate confirmationd, Republicans have appointed hard-core Right-wing ideologues from the Federalist Society’s membership, and they come with a solidly “originalist” judicial philosophy and a determination to read the Constitution and other laws strictly in what the words contain, without any cognizance of the effects their rulings will have in the real world.
We see this in Justice Alito’s draft opinion in Dobbs, particularly in his withering scorn towards considering the real-world impacts of his decision, While an earlier generation of more moderate conservative justices – Sandra Day O’Connor, Anthony Kennedy and David Souter – drew back from overturning Roe in the 1992 decision of Planned Parenthood v. Casey on the ground that the political effect of overturning Roe would be galvanic, Alito would have none of it. “We cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work,” Alito writes in his draft opinion. “We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision.”
Alito also reads the history of Plessy v. Ferguson and Korematsu v. United States quite differently from Jamie Raskin. To Alito, those were two previous decisions that were so totally wrong on their face and so badly decided that they serve as precedents for ignoring stare decisis – the rule that courts should decide cases based on what they’ve decided before – in overturning Roe. Aside from the rather obvious point that Plessy and Korematsu were about treating Americans as second-class citizens based on their race, while overturning Roe essentially turns the female (more than) half of the American population into second-class citizens and slaves to their wombs – there is a striking difference between how Earl Warren reversed Plessy in Brown v. Board of Education and what Alito is proposing to do to Roe.
Warren, who came to the job of chief justice from being Governor of California and had never been a judge before, saw Brown in terms of consensus-building. According to historian Richard Kluger, whose book Simple Justice is the definitive history of Brown. Warren lobbied the other justices hard to secure what he thought would be the best result for the country: a unanimous opinion. He particularly worked hard to persuade Stanley Reed, the last holdout who wanted to keep racial segregation constitutional, to sign on to Brown because it would be the best thing for the country.
By contrast, Alito makes clear in his opinion his sheer disdain for anyone who disagrees with him, including other Supreme Court justices both past and present. He cherry-picks the historical record and quotes the late Justice Ruth Bader Ginsburg and Harvard law professor Laurence Tribe as people who expressed skepticism about Roe v. Wade. (They did, but their skepticism was over relying on a Supreme Court opinion instead of continuing the battle for reproductive freedom in state legislatures, where the momentum in the early 1970’s was on the pro-choice side.) Rather than trying to build common ground among the justices the way Warren did in overruling Plessy v. Ferguson, Alito’s draft caters to the other members of his bloc – Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – and totally ignores the rest of the Court. That includes chief justice John Roberts, who based on his past record would probably have wanted a decision that paid lip service to Roe v. Wade while upholding the Mussussuppi anti-abortion law and giving Roe the death of a thousand cuts.
No, Justice Alito says in the tone of his opinion: we have the votes to do this 5-4 and we don’t care what the other justices (or anybody else) think. To bolster his culture-war arguments, Alito cites the early support of Planned Parenthood’s original founders for eugenics, a 1920’s attempt to “improve” the human race by selective breeding, and he says that Black and Latina women are more likely to have abortions and therefore abortion is a form of genocide against those communities. Nonsense: if Black and Latina women are more likely to have abortions in the U.S. than whites, it’s because of racism, particularly economc racism that relegates them to low-paying jobs that don’t offer enough money or support to raise additional children.
A Salvo in the Culture War
Justice Alito’s draft opinion is yet another salvo in the ongoing American culture wars. In the late President Abraham Lincoln’s phrase, we have become “a house divided against itself” – and the divisions are so extreme that only once, when the Civil War was imminent, were there greater social, cultural and political divisions than there are now. Lincoln’s speech (https://www.abrahamlincolnonline.org/lincoln/speeches/house.htm), delivered in Springfield, Illinois on June 16, 1858 during Lincoln’s unsuccessful campaign to unseat Stephen A. Douglas from the U.S. Senate, directly referenced the Dred Scott decision the Supreme Court had issued a year earlier, and his words were chillingly appropriate for the modern situation:
“I believe this government cannot endure, permanently half slave and half free. I do not expect the Union to be dissolved -- I do not expect the house to fall -- but I do expect it will cease to be divided. It will become all one thing or all the other. Either the opponents of slavery will arrest the further spread of it, and place it where the public mind shall rest in the belief that it is in the course of ultimate extinction; or its advocates will push it forward, till it shall become alike lawful in all the States, old as well as new -- North as well as South.”
Lincoln described the Dred Scott decision and the 1854 Kansas-Nebraska Act, which his opponent Senator Douglas had sponsored, as part of a long-term plan to extend slavery and ultimately make it nationwide. Likewise Justice Alito’s draft opinion striking down Roe v. Wade is the culmination of almost 50 years of Right-wing planning, strategizing and acting. And despite Justice Alito’s attempt to wall off the effect of his opinion exclusively to abortion because it involves “the potential taking of a human life,” the effect of Alito’s and the four other justices in the majority would be to eviscerate decades of legal rulings guaranteeing individuals a constitutional right to privacy. Alito’s ruling that in order to be protected by the Constitution, it must not only be stated explicitly therein but be “deeply rooted in our nation’s history” – which he argues isn’t the case for abortion because all 50 states prohibited the procedure until California allowed it in the Therapeutic Abortion Act of 1967 (signed into law by then-governor Ronald Reagan, who 13 years later cut the deal with Jerry Falwell and other leaders of the radcal Right that made Republicans the so-called “pro-life” party).
It also isn’t true of a lot of rights that previous Supreme Courts have ruled are constitutionally protected. Once Roe v. Wade is overruled and states are free to ban abortion, the next target is likely to be Queer rights. Just as all 50 U.S. states banned abortioin until 1967, all 50 states banned sexual activity between same-gender partners until 1961, when the Illinois legislature did a full revision of the state’s criminal code and inadvertently left out the anti-Queer sodomy law. And the ruling allowing same-sex couples to marry dates back only to 2015 – and Alito has slgnaied that this, too, is on his chopping block.
In October 2020 – with liberal justice Ruth Bader Ginsburg dead and her far-Right replacement, Amy Coney Barrett, before the U.S. Senate awaiting confirmation – Alito joined fellow Right-wing justice Clarence Thomas in reading a statement from the bench saying that the ruling allowing same-sex couples to marry threatened “the religious liberty of the many Americans who believe that marriage is a sacred institution between one man and one woman.” (See https://www.cnn.com/2020/10/05/politics/thomas-alito-obergefell-same-sex-marriage-analysis/index.html.) With Barrett about to be confirmed on a party-line vote, the Thomas/Alito letter essentially was an invitation to anyone who might want to bring a case before the new Court that their “religious liberties” were being violated because the law now allowed same-sex couples to be married.
It’s not only same-sex marriage and, indeed, same-sex sex that are on the post-Roe chopping block. It’s also the right of married heterosexuals to use birth control, which was guaranteed ini the 1965 case Griswold v. Connecticut. The court in Griswold found that the Constitution guaranteed what they called a “penumbral right” to privacy, a phrase abortion opponents have ridiculed ever since, and it was one of the key precedents the Court relied on in Roe. Also on the chopping block is the right to marry a person of a different race, since that was guaranteed by the 1967 case Loving v. Virginia also on “privacy” grounds that will be stripped away if Alito’s draft opinion in Dobbs, or something close to it, becomes the law of the land.
The current Right-wing Supreme Court majority has become a hopeful sign for all sorts of radical-Right crazies on issues that have nothing to do with either medicine or sex. Texas Governor Greg Abbott has announced plans to challenge the U.S. Supreme Court’s ruling in Plyler v. Doe (1982), which guaranteed the right of children of undocumented immigrants – including U.S.-born ones who were automatically citizens under the 14th Amendment, to attend public schools. Abbott and Florida Governor Ron DeSantis have also threatened prosecuting parents who authorize hormone therapy for their Transgender children – as recommended by the medical establishment for treating gender dysphoria – for “child abuse.”
The modern-day American Right is an uneasy coalition between economic libertarians who wanted to abolish worker health and safety protections, labor unions and all social welfare programs under the guise of “limited government,” and radical Christian Rightists who want a huge government to micromanage people’s personal lives, especially their sex lives. Despite its inherent contradictions, this coalition has stayed together for over 60 years and is on the verge of its biggest success to date. For most of these 60-plus years the economic libertarians have been in the driver’s seat – mainly because it was far more important for the big-noeey donors who support the Republican Party to win huge tax cuts for themselves than to deal with abortion or Queer rights.
But now the balance of power between libertarian and evangelical Rightists in the U.S. is shifting. Bob Chapek, the chief executive officer of the Walt Disney Corporation, found this out when he came out against a severely restrictive bill passed by the Republican-dominated Florida legislature and signed by Governor Ron DeSantis that forbids any discussion of sexual orientation or gender identity in elementary school grades one through three, and restricts classroom discussion about sexual orientation or gender identity for older children. It also gives parents the right to sue a school district for alleged violations of the law – which makes opponents fear that cash-strapped Florida school districts will just ban all discussions about Queer people or issues, period.
Chapek originally wanted to keep quiet about the bill, reasoning that buth supporters and opponents of Queer rights spend money at Walt Disney World in Orlando and the company’s other businesses and attractions. Then he faced opposition from Queer and Queer-friendly Disney employees, and he publicly spoke out against the so-called “Don;t Say Gay” bill and pledged that Disney would use lts clout as Florida’s largest private-sector employer to pressure the legislature to get rid of it. Instead, Governor DeSantis and the Florida legislature went out of their way to punish Disney for their bill by revoking the special-district status Walt Disney himself had negotiated with the Florida government before his death in 1966 for the land on which Walt Disney World sits.
Called the “Reedy Creek Improvement District,” the Disney World land was allowed to be virtually self-governing. The law was denounced by Leftists at the time as a giant giveaway to a private corporation, but the Florida legislature enthusiastically embraced it because they’d seen the sensational success of Disneyland in California and wanted their own tourist attraction. Now it’s being attacked on the Right by people who ordinarily support corporate giveaways, but in this case their commitment to an anti-Queer culture war has overcome their commitment to corporate freedom. The message to corporate America couldn’t be more clear: companies that toe the radical-Right culture line, like Hobby Lobby and Chick-fil-A, will continue to get government benefits and sweetheart deals. Companies like Disney that oppose anti-Queer legislation will have those benefits taken away.
The imminent repeal of Roe v. Wade and the possibility that the federal government will impose a nationwide ban on abortion the next time Republicans have control of the White House and Congress are the latest steps towards the “dictatorship of virtue” the Republican Party and America’s radical Right want to impose on the nation. Both Ronald Reagan and Donald Trump ran for President on the slogan “Make America Great Again,” and to them and America’s Right in general, America was “great” when Blacks stayed on the back of the bus, women stayed in the kitchen and Queers stayed in the closet.
