The Weekly Sift

There’s plenty of blame to go around.

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The two featured posts today look at the leaked Alito opinion overturning Roe v Wade through two very different lenses. The other post goes through the text of the opinion and examines its claims and arguments. This one considers the question: How did we get here?

In particular, whose fault is it that women in about half the states are going to lose their right to bodily autonomy, and their ability to plan their lives?

Let’s start with those most directly responsible.

Justices Alito, Barrett, Gorsuch, Kavanaugh, and Thomas. Or, as Stephen Colbert described them: “four old dudes and a woman who thinks The Handmaid’s Tale is a rom-com”.

Sometimes when we start assessing secondary blame, we lose sight of the primary blame. (Yeah, you shouldn’t have left your keys in the ignition, but the main reason your car got stolen was that some thief stole it.) Let’s not do that here: Roe is being overturned because five Supreme Court justices are putting their personal religious opinions above their duty to respect established precedents.

Now, as Justice Kavanaugh rationalized during the oral arguments, it’s not unheard of to reverse a precedent, and reversals have been some of the Court’s best decisions.

But a reversal is typically done after the Court has tried and failed to make the precedent work. That’s what happened, for example, when Brown v Board of Education (1954) reversed the “separate but equal” doctrine of Plessy v Ferguson (1893). In a series of cases from 1938 to 1950, the Court ordered students admitted to previously segregated white schools because the separate educational path provided for Black students was not really equal. In Brown, the Court drew a conclusion from that experience: Separate-but-equal schools were unworkable, because states with segregated schools would never provide a truly equal education to Black students.

But (in spite of what Alito claims, which I discussed in the other post) nothing about Roe and Casey has proven to be unworkable. The only major thing that has changed since Roe was decided in 1973 and upheld in 1992 is the composition of the Court. Alito, Barrett, Gorsuch, Kavanaugh, and Thomas are overturning Roe because they want to.

What’s more, they were all deceptive about this in their confirmation hearings. It’s arguable that they did not “lie”, depending on how tightly you define that word. (Thomas, I would argue, clearly did lie, though his lie may not be provable. It is simply unbelievable that, even though he was in law school when Roe was decided, he never participated in a discussion about it.) When asked about their approach to the Roe precedent, all five gave lawyerly answers that, in retrospect, were designed to deceive. If they could be cross-examined somewhere about their statements (which they can’t be, short of an impeachment hearing), all would have to say something similar to Bill Clinton’s “It depends on what the definition of ‘is’ is.”

And we already knew that Brett Kavanaugh lied repeatedly during his confirmation.

It is ironic, in my opinion, that these five deceivers are now trying to claim the moral high ground. They do not deserve it.

Donald Trump. It isn’t just that Trump appointed Gorsuch, Kavanaugh, and Barrett. It’s that he turned the Court over to the anti-abortion Federalist Society. Judges up and down the court system were selected by Leonard Leo, and rubber-stamped by Trump

Mitch McConnell. The reason Trump got to appoint three justices in four years is that McConnell played shenanigans in the Senate.

When Antonin Scalia died 11 months before the end of President Obama’s term, Obama nominated Merrick Garland to the Court. This was in no way a radical choice: Garland was already the chief judge on the most powerful appeals court in the country; he had been confirmed for that job by 73 senators; he was widely regarded as a moderate; and at the age of 63, he would probably only hold the seat for about 20 years, rather than 30 or 40.

In short: Obama was bending over backwards to be reasonable.

McConnell knew he could not present a valid reason not to confirm Garland, so he simply refused to hold hearings or bring the nomination to a vote, which is the process the Constitution calls for. The reason he gave was that an election was coming up, and the American people should have a chance to weigh in on this decision. (They did: Hillary Clinton got millions more votes than Donald Trump, but Trump got to make the appointment, who turned out to be Neil Gorsuch.)

McConnell also pushed Brett Kavanaugh’s nomination, and rubber-stamped the sham investigation of the sexual assault charge against him. When Ruth Bader Ginsburg died two months before the 2020 election, McConnell completely reversed his 2016 rhetoric about giving the American people a voice, and rammed Amy Coney Barrett’s nomination through in record time to give Trump his third justice.

The anti-democratic structure of the Senate. If the Senate were a democratic institution, Mitch would never have been majority leader to begin with, because the GOP would not have achieved a Senate majority any time in the last 24 years.

Here’s how that works: Every state gets two senators, no matter how many people it has. So Wyoming gets one senator for every 140,000 registered voters, while California gets one for every 11 million registered voters. In other words, it takes about 70 California voters have as much influence on the Senate as one Wyoming voter.

Sounds fair, right?

But you might be thinking: “Sure, blue California is under-represented compared to red Wyoming, but red Texas is also under-represented compared to blue Vermont. So maybe it all washes out.”

It doesn’t wash out. If you run the numbers, the last time Republican senators got more votes (over a complete 6-year Senate election cycle) than Democratic senators was 1994-1998. But in the 24 years since 1998, Republicans have held a Senate majority for 12 years: half the time.

In 2016, for example, when Mitch McConnell was using his Republican “majority” to keep President Obama from appointing Merrick Garland, sitting Democratic senators had gotten 50.7% of the total six-year Senate vote, compared to the Republicans’ 44.1%.

In a democratic country, Mitch wouldn’t have been majority leader at all, and Merrick Garland would be on the Court instead of Neil Gorsuch.

Similarly, during the Trump and Bush years, a democratic Senate would have had a Democratic majority. Bush probably could have gotten Alito and Roberts through anyway, because in those rose-colored days senators were not as partisan about the Court. (Alito was approved 58-42, and Roberts 78-22.) But Gorsuch, Kavanaugh, and Barrett would not have been confirmed.

Next, you might be wondering how we got such a skewed Senate. Historical accident, right?

No. Republicans in the late 1800s intentionally packed the Senate by admitting new states with tiny populations. As historian Heather Cox Richardson explained to Bill Moyers:

After 1888, when we get the installment of Benjamin Harrison in the White House, he loses the popular vote by about 100,000 votes. But he’s installed thanks to the Electoral College. The Republicans under Harrison between 1889 and 1890, they let in six new states in 12 months. That was the largest acquisition of new states in American history since the original 13 and it’s never been matched again. They let in North Dakota, South Dakota, Montana, Washington, and then Idaho and Wyoming to go ahead and make sure that they would continue to control the Senate, and the Electoral College. And they’re not hiding this. They actually go onto their media which is their equivalent of the Fox News channel at the time and say, by letting in these states, we’re going to hold onto the Senate for all time and we’re going to make sure we hold onto the White House for all time.

So if you’ve ever wondered why one Dakota wasn’t enough, that’s the reason: Republicans were packing the Senate. The Senate remains skewed in their favor to this day.

It’s almost impossible to unmake states, and hard to imagine passing a constitutional amendment to give larger states more senators, so the easiest way to change the Senate to better reflect the voting public would be to grant statehood to Puerto Rico and D.C., which presumably would elect four Democrats to the Senate. (If Democrats wanted to imitate Republicans, they could give statehood to East and West Puerto Rico, each of which could have a population roughly equal to the two Dakotas put together.) That won’t happen, McConnell says, because eliminating the Senate’s Republican bias would be “full-bore socialism“.

Also, admitting Puerto Rico and D.C. would let a lot of Hispanics and Blacks cast meaningful votes, so that’s a non-starter.

The Electoral College. Like Benjamin Harrison, Donald Trump was never elected by the American people; he was installed by the Electoral College. In 2016, he got 46% of the vote, almost 3 million votes less than Hillary Clinton’s 48%. But his 46% produced 304 electoral votes to Clinton’s 227.

A less extreme miscarriage of democracy happened in 2000. That election has often been described as “close”, but it really wasn’t that close: Al Gore got half a million more votes than George W. Bush, so there was no doubt who the People chose. But after Florida was adjudicated in his favor (the vote in Florida really was close), Bush’s fewer votes turned into a 271-266 Electoral College win. (Sixteen of those electoral votes come from the aforementioned Montana, Idaho, Wyoming, and the two Dakotas. If they were all one state, it would have 5 million people, or 9 electoral votes; Bush loses.) Bush went on to appoint Justice Alito and Chief Justice Roberts.

Minority-vote presidents aren’t an accident; that’s what the Electoral College was designed to do: make some Americans’ votes count more than others. So in 2016, a few thousand voters in Wisconsin, Michigan, and Pennsylvania overruled much larger majorities in states like California, New York, and Illinois. If you’re a Californian, your vote just doesn’t matter as much as a purple-state vote. Sucks to be you.

Why did the Founders curse us with this unjust system? In a word: slavery. Votes in slave states were supposed to count more than votes in free states.

In 1787, the slave states wanted federal power comparable to their full populations (including slaves), but for obvious reasons they didn’t want to give the vote to slaves (or women, or men who didn’t own enough property). In school, most of us learned about one result of this desire to wield power in the name of people whose rights you totally deny: the 3/5ths Compromise. In setting the number of representatives a slave state got in Congress, its slave population would be included, but at a 40% discount.

That settled the House. The Senate was already undemocratic, so no problem there. But that left the presidency: If presidents were elected by the People, states that let more people vote would have more influence on the outcome.

Can’t have that, so the Electoral College was born. Each state got one electoral vote for each senator or congressman. So no matter how few people a state let vote, its influence on the presidency was guaranteed.

As Shakespeare had Marc Antony say: “The evil that men do lives after them.” Slavery ended with the 13th Amendment in 1865, but the blatant injustice of the Electoral College lives on. Women can thank it for the loss of their bodily autonomy.

Theocrats. There are people who honestly believe that an ovum acquires a complete human soul the instant it bonds with a sperm. That sounds nutty to me (and it’s completely non-Biblical, so don’t tell me it’s the “Christian” position). But your religion is your own; it doesn’t have to make sense to me.

Where I lose patience is the point where people decide that their theological speculations give them the right to interfere in other people’s lives. You can believe whatever you want about fetuses and souls and abortion. But if you’re not the pregnant woman, what happens to the pregnancy is not your decision. And if no pregnant woman is asking for your advice, your opinion doesn’t matter.

The gullibility of purportedly pro-choice senators. Susan Collins isn’t the only one, but she is definitely on the poster.

My favorite Susan Collins joke describes how she gets lunch in the Senate cafeteria: She studies the menu for half an hour, and then orders the same thing as Mitch McConnell.

That’s pretty literally what happened during the Kavanaugh confirmation. Collins was one of the last senators to commit to Kavanaugh, who was confirmed 50-48. (Collins and Democrat Joe Manchin were the deciding votes.) For weeks, her agonizing decision process had us all speculating about what she would do. In the end, though, after all that dithering, she voted with Mitch McConnell, just as she had on the deficit-busting billionaire-boosting Trump tax cut, and as she did on Trump’s first impeachment. (She said Trump had learned “a pretty big lesson” from being impeached, and predicted that “he will be much more cautious in the future”. She voted to convict on his second impeachment, and says she’s “very unlikely” to support him in the 2024 Republican primaries. But in the general election? She leaves it open. Maybe failing to overthrow democracy on 1-6 taught him something.)

During her speech advocating Kavanaugh’s confirmation, Collins recounted her conversations with the nominee.

Our discussion then turned to the right of privacy, on which the Supreme Court relied in Griswold v. Connecticut, a case that struck down a law banning the use and sale of contraceptives. Griswold established the legal foundation that led to Roe eight years later. In describing Griswold as “settled law,” Judge Kavanaugh observed that it was the correct application of two famous cases from the 1920s, Meyer and Pierce, that are not seriously challenged by anyone today. Finally, in his testimony, he noted repeatedly that Roe had been upheld by Planned Parenthood v. Casey, describing it as “precedent on precedent.” When I asked him would it be sufficient to overturn a long-established precedent if five current justices believed it was wrongly decided, he emphatically said “no.”

Kavanaugh had obviously lied numerous times during is confirmation hearings, but Collins took his affirmations of Roe’s status at face value. Now she describes Kavanaugh’s apparent vote to overturn Roe as “completely inconsistent” with what he told her, but she accepts no responsibility for being such a stooge.

Pro-choice voters who refused to vote for Hillary Clinton. Who could have foreseen that electing Donald Trump might risk ending abortion rights? Well, everyone, actually. This is from an AP article written in May, 2016:

Scalia’s death was a shock, but the next few years are almost certain to produce more vacancies. Justice Ruth Bader Ginsburg is 83, Justice Anthony Kennedy turns 80 in July and Justice Stephen Breyer will be 78 before the end of the summer. A Trump nominee in any of those seats would cement conservative domination of the court for years, if not decades. By contrast, a victory by the Democrats in November probably would lead to the most liberal Supreme Court in a half-century. …

Advocates on both sides of the abortion debate were quick to react in ways that pointed to the importance of the presidential election. “Donald Trump’s list of potential Supreme Court nominees are a woman’s worst nightmare. Their records reveal a lineup of individuals who would likely overturn Roe v. Wade if given the chance, gutting what’s left of abortion access in this country and heaping punishment on women,” said Ilyse Hogue, president of NARAL Pro-Choice America. On the other side of the issue, Susan B. Anthony List President Marjorie Dannenfelser said Trump’s list was especially strong and stood in contrast to judges Democratic front-runner Hillary Clinton would choose. “There is no question Clinton would only nominate judges who stand in lock-step with the abortion lobby and would strike down even the most modest abortion limits,” Dannenfelser said.

But here’s what Bernie-supporter H. A. Goodman was writing in November, 2015 in a Salon article “Hillary Clinton is on wrong side of everything: Stop telling me I have to vote for her because of the Supreme Court“:

Ruth Bader Ginsburg is fine and the New York Times writes that she has “no interest in retiring.” Justice Scalia isn’t stepping down from the U.S. Supreme Court soon and will only contemplate retirement when he “can’t do the job well.” Anthony Kennedy is in “no rush” to leave the Supreme Court. Justice Breyer has no plans to step down but will “eventually” retire one day.

The paranoid legions, frightful of voting their conscience and actually upholding our democracy, can rest assured that all four Supreme Court justices mentioned are still capable of lasting four more years.

It turned out that Scalia didn’t last six months. But even after his death reminded everyone that you never know, here’s an article advocating that gay progressives vote for Jill Stein, because even if those votes did happen to cost Hillary the election, “Trump would be an acceptable setback for the ultimate greater good.”

Many are quick to point out that this election is actually about who gets to nominate Supreme Court judges and I agree that it is better to elect a candidate who would nominate liberals to these positions.

But anyone who knows politics knows that all of the potentially vacant seats are currently occupied by conservatives, so in the worst case scenario, after Obama nominates, liberals will still have a 5-4 advantage.

That worked out great, didn’t it? Obama would choose Scalia’s replacement, Ginsburg would live forever, and Kennedy was already a “conservative”, so nobody needed to worry about a Federalist Society extremist replacing him. Supreme Court? Not a problem.

Every pro-choice American who has treated abortion as a secondary issue. For nearly fifty years, pro-choice politicians have hidden behind the Supreme Court, and pro-choice voters have let them do it.

Now that Roe is being overturned, Democrats are beginning to work on protecting abortion rights through federal legislation. But given their narrow majority in the Senate and a few Democratic senators’ unwillingness to end the filibuster, they will be unable to pass that legislation.

But Democrats have had Senate majorities about half the time in recent decades, and for about six months during the Obama administration, they had a filibuster-proof majority. Roe could have been codified then. Or the filibuster could have been eliminated long ago, when the party had a few votes to spare, and then Roe could have been codified.

Even if they could not pass legislation, they could have made Republicans vote it down again and again. They could have challenged those legislators to explain that vote to their constituents.

But it was easier to rely on the Court. As a result, after the Supreme Court’s protection of abortion rights ends, there is no second line of defense. Abortion rights are already gone in Texas, and will vanish in many other states in June.

It didn’t have to be this way.