Not so long ago, the Supreme Court possessed sufficient stature that nobody — least of all its own justices — felt obliged to reassure the public of its legitimacy. Neither Chief Justice John Roberts nor his colleagues had to promise that the court reaches its decisions based on law, not partisanship or ideology. Today they regularly utter such cheerful bromides — and the more they talk, the less anyone believes them.
The highest court's credibility has trended downward for the past two decades, ever since a Republican majority handed the 2000 presidential election to George W. Bush, with consequences that most Americans agree were disastrous. That steep slide will seem gentle if and when, as now appears inevitable, the conservative majority's draft opinion to overturn Roe v. Wade becomes law.
Stunningly ill-advised and contrary to constitutional order, that decision will starkly highlight the crisis of the court — and demonstrate once more how Republicans have gnawed like termites at the lawful foundation of democracy.
The decision's illegitimate foundations lie in the very construction of the court majority that will make it possible. Justice Samuel Alito, who auditioned for his appointment as a relentless foe of abortion, is only on the court thanks to the partisan outcome of Bush v. Gore — which awarded the presidency to a man who had decidedly lost the popular vote and probably lost the Electoral College as well. The three Trump justices — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — likewise gained their appointments via an election that saw the popular-vote loser elevated to power.
Far worse, the conservative majority exists only because Senate Republicans denied an appointment to Barack Obama on spurious grounds that they abandoned at the end of Trump's presidency. By that measure, neither Gorsuch nor Barrett belongs in their seats. When Mitch McConnell whipped those swindles through the Senate, he irrevocably stained the justices who benefited from them. (The McConnell rule is simple: When a Supreme Court vacancy arises, it's always too late for a Democratic president to appoint, but never too late for a Republican.)
Next came the deception perpetrated by the Trump justices during their confirmations, when asked about how they would handle this vital issue. At least two of them clearly stated in public hearings — and privately told senators who supported them — that Roe was settled law, validated many times over the past five decades. Sens. Lisa Murkowski and Susan Collins both now profess astonishment that these men misled them during the confirmation process.
The same lie was reiterated in conservative media. In July 2018, The Wall Street Journal, that repository of reactionary falsehood, published an editorial mocking the "abortion scare campaign" that accompanied the appointment of Republican justices. According to the Journal editorial board, nobody needed ever to fear for Roe: "The reason is the power of stare decisis, or precedent, and how conservatives view the role of the Court in supporting the credibility of the law." (Be warned: That editorial board now breezily insists that vacating Roe won't endanger same-sex marriage, contraception or any of the other "unenumerated" privacy rights whose demise Alito strongly hinted in his opinion.)
Yet there is another stigma of illegitimacy on this act that overshadows all the rest: the almost mindless misogyny that is, to use a favorite Alito phrase, so "deeply rooted" in the court's ongoing repeal of abortion rights. The draft opinion exposed Alito's profound sexist contempt in a way that would be comical if not for the fact that it has cost so many women's lives and will continue to destroy them.
To justify his assertion that abortion is an affront to Western legal traditions, Alito went deep indeed. He cited the views of a 17th-century British jurist named Edward Coke, who declared abortion to be a heinous crime. As Lawrence O'Donnell noted on MSNBC, that same Coke believed some women (and a few men) were witches and should be torturously put to death for assisting the devil. As an additional legal authority, Alito also cited several times Sir Matthew Hale, another 17th-century British judge who oversaw the execution of alleged witches — and came up with the stunning theory that a man by definition could not rape his wife, regardless of her consent.
It seems possible that one of Alito's clerks pranked him with these choices, but he circulated the draft that included the embarrassing citations, so it's on him. Evidently such barbaric jurisprudence is what the likes of Alito mean when they blather on about "original intent."
More than two-thirds of Americans believe that Roe should be preserved to protect the health and security of women and their families. When it is cast aside, the political consequences for those responsible should be severe — because the damage done to one of our most important institutions will be so grave.
To find out more about Joe Conason and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at www.creators.com.