02 December 21
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The Supreme Court conservatives signaled as much in oral arguments regarding a Mississippi abortion law.
This is nonsense. The Mississippi law was specifically designed to prohibit abortion, and it was specifically designed by its authors to take advantage of the carefully engineered new majority on the Supreme Court, where Merrick Garland’s nomination was slow-walked into oblivion while that of Amy Coney Barrett’s was sent up on a rocket sled, and where Brett Kavanaugh was confirmed despite his having clearly bullshitted his way through his confirmation hearings—most notably, given our current moment, on his great respect for stare decisis. Roberts is not a stupid man. He knows the history of the Mississippi law as well as anybody does. He knows what it does and he knows why it does it. He also knows that a complete, unambiguous prohibition is the obvious next step. There are already laws ticking away in state legislatures, including Mississippi’s, to do that very thing.
(Personally, I can easily envision state laws prohibiting women from going out of state to access abortions. Welcome back to the Fugitive Slave Law. I can envision that as easily as I can envision the eventual state-based assaults on gay marriage, and the constitutional right to privacy itself.)
Here, however, as Roberts pretends he doesn’t know any of these things, I think we see him fashioning the “reasonable” camouflage for his eventual vote to overturn 50 years of precedent. And, even if he doesn’t employ the camouflage, there are clearly still five votes to read reproductive freedoms out of the Constitution, so Roberts would be free to join the minority if he so chose. The coffin is now complete and sealed.
We should pause here to commend Scott Stewart, the solicitor general of Mississippi, for being one of the most unctuous presences to grace the halls of government since the departure of Kenneth Starr. I don’t know if I’ve ever heard a more revolting set of remarks than listening to the solicitor general of Mississippi Goddamn praising the wisdom of Brown v. Board of Education as a reason to restrict established constitutional freedoms. Justice Kavanaugh also ran down a whole litany of important rulings that overturned precedents, as though he would have been with the majority on any of them. The gorge rose steadily and stayed at high tide.
In reality, the opposing counsel were merely accessories. This was a case in which the justices were clearly contending with each other. Justices Sonia Sotomayor and, surprisingly, Justice Stephen Breyer came in very hot on the issue of how the Mississippi law’s stated reliance on the ideological shift on the Court was an arrow aimed dead at the heart of the Court’s credibility.
"Will this institution survive the stench that this creates in the public perception," asked Sotomayor, "that the Constitution and its reading are just political acts? I don’t see how it is possible."
This point is profound enough on its own. But implicit in it was a rebuttal to one of Mississippi’s sub rosa attacks on Roe: that the decision has been so “divisive” that, somehow, leaving it up to the individual states will ameliorate the anger it has provoked. It is considered impolite to point out that the divisiveness has come mainly from the one side of the debate that has an actual body count. Or that, if this view prevails, it’s not just a victory for conservative politicians and ambitious theocrats, it’s also a victory for snipers and clinic bombers, for Eric Rudolph, and James Kopp, and Paul Hill. That part of the anti-choice movement doesn’t get discussed at fundraising parties, but that is the most graphic historical evidence of what the “divisiveness” of the debate has been about.
In any event, it’s hard to see any result out of Wednesday’s arguments that doesn’t leave the Mississippi law intact. This will open the floodgates fully, not only on reproductive freedom, but also on a lot of the social progress that has come about since the Court decided all those cases that Stewart and Kavanaugh pretended to honor as they equated Roe with Supreme Court decisions that legitimized racial segregation and abusive police tactics. The law isn’t supposed to exist this far beyond the looking glass.
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