I enjoy a great legal thriller. If a book jacket were to frame the plot as starting with a dead-of-the-night ruling by the Supreme Court over an issue that did not have any oral arguments, resulting in a decision that was unsigned by the Justices, and which upended decades of settled law, I would be most intrigued. I would surely add the book to my cart.
That is, after all, how a great legal drama should leave a reader feeling. Wanting more.
But when that plot instead is the lead paragraphs in the morning newspaper it makes for a very different feeling for the reader. There is only dread and concern, with a desire to hurl the newspaper back to the front stoop.
By now we all are again aware that the Supreme Court is morphing towards a most dangerous conservative bent, and precedence is recklessly being tossed aside like last year’s calendar.
Last Thursday night the Supreme Court handed down a 5-4 decision, with conservative Chief Justice John Roberts joining the three liberal justices in dissent regarding the ruling which upheld the now infamous Texas abortion law. (Roberts made a move that underscores the fact he cares about the Court, and his legacy. A topic often noted on this blog.)
We have all become very aware that Senate Bill 8, signed by Texas Republican Governor Greg Abbott in May is now law. It bars abortions once a doctor can detect fetal cardiac activity, which is often before many women even know they are pregnant. This is the most draconian and bizarre abortion law in the nation. Not only because it is estimated to prevent an estimated 85% of abortions there, but also because of how the law is framed to work.
What has been created in Texas is more akin to the way those in places like the former USSR used snitches and tattlers to bring down their neighbors and enemies.
Most laws in the land are enforced by government officials. But the outrageous Texas law says that private citizens can step in by suing abortion providers and anyone who “aids and abets” a patient obtaining an abortion after six weeks.
Overnight a chill traveled up the collective spine of the nation.
Think about this.
Family members of a woman getting an abortion, or the taxi cab driver who transported the woman, or any counselor who spoke to the woman about the abortion could all face legal effects from violating the law. If the Gladys Kravitz types in Texas, who will now sneak around communities and poke, pry, and try to gather information on women, should prevail this law says they are entitled to damages of at least $10,000 plus legal fees.
Listening to the nation’s leading legal experts this past week has been one way to sort through the atrocious nature of the law.
“The Constitution, including Roe v. Wade, only applies against the government, it doesn’t apply against private individuals,” says Laurence Tribe, a leading constitutional law expert at Harvard. “That’s what makes this really dangerous. It’s a kind of vigilante justice, circumventing all of the mechanisms we have for making sure that the law is enforced fairly, and that it’s not enforced in a way that violates people’s rights.”
While many correctly state the disastrous outcome this is for women and their rightful control of their health decisions it is also equally clear this law is a blow to our understanding of democracy.
I actually enjoy, each time a nominee for the Supreme Court is asked questions by the Judiciary Committee, to hear how that person feels about the meaning of the law and concepts that the court deals with continually.
Without fail, there was always a deep conversation about the importance of judicial precedent. As one who respects Alexander Hamilton, he being my favorite Founding Father, I let his views make the case. From “The Federalist No. 78” where he stated a robust respect for precedent is indispensable to preventing judges from exercising arbitrary discretion.
“To avoid an arbitrary discretion in the courts it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them.”
Additionally, I add a fact we need to be mindful of when considering the tossing aside of precedence. This week it was noted on NPR that in cases over the past half-century where a constitutional precedent was overturned, the court was either unanimous or nearly unanimous in that decision, with two or fewer justices in dissent. Hence the call from Hamilton about preventing judges from exercising arbitrary discretion. Democracy runs the best when the law is stable and society has a level understanding of, and expectations about the issues at the heart of the laws.
So this past week there was, for me, this great chasm between those Senate hearings and the Court’s calamity that allowed for a state legislature to empower individual citizens to harass and intimidate women seeking a decades-long constitutionally protected medical procedure.
So where does the nation go from here with this issue?
Clearly, other state legislatures in the hands of conservative will try to entertain such kindred scenarios and pass legislation that mimics Texas. After all, these types of zealots have been working to strike down Roe v. Wade for decades. But what these Republicans have not taken into account is the reaction from the people.
We live in a very politically split nation, but there are a few issues where the people are united. When it comes to the 1973 Roe decision there is a strong majority–most polls show it at roughly 70%–in support. Therefore, the brunt of negative reaction will be placed, correctly, upon the party who undermines that ruling for women’s health.
What the GOP has done, with the aid of Mitch McConnell and other such luminaries in their party, is place truly culturally backward nominees on the bench. What those throwbacks on the bench are doing is sowing the seeds of anger that will then create well-deserved blowback on the Republican Party in future elections.
Consider the mid-term elections in 2022. Republicans nationwide are going to need to answer, again and again how they feel about the Texas law. A law that will only become more unpopular as more stories of actual impacted women in that state make for headlines. More trouble for the GOP candidates as more court cases result from the Texas law. And more angst for the GOP over the very idea of a draconian and stupefying ban on abortions after 6-weeks!
Is it any wonder that President Biden and Democrats grasp the fact that the Republicans have leaned way too far over their skis? Abortion can be a potent and energizing issue in just an average election cycle. Given what the Republicans have offered as a blazing trash can of disgust we are left to feel genuine shock at their level of amateurish behavior in Texas.
So, Mr. 2022 GOP candidate: “Do you agree that your uncle should be sued by his nosy neighbor concerning his driving a daughter to a medical facility so to allow her to make a personal health decision?”
If conservatives want to wage a political war against women, I know a majority of Americans who will have a response.
And so it goes.