Supreme Court: Politics, Then Country

“When a law in its nature is a contract, when absolute rights have been vested under that contract, a repeal of the law cannot divest those rights.”

– Chief Justice John Marshall, 1755-1835

If the Supreme Court repeals the constitutional right to abortion, it will sound the death knell of a free society while an overconfident right-wing marches along a road already being paved toward autocracy.

It’s all about politics, not honest debate about policy, as the minority Republican Party with the support of conservative judges its presidents nominated erodes more American freedoms, little by little – everything from limiting voting rights to permitting what can be taught and read in schools and libraries.

They’re conducting a war on privacy with conservative judges at the spearhead, the Constitution be damned. It’s a living document, not some tombstone in America’s backyard. Proof? The 27 amendments of 33 passed by Congress and sent to the states for ratification.

Gov. Gavin Newsom of California, a Democrat, seemed exasperated over the country’s swing toward dystopia as he defended the right to abortion. He connected that to another right-wing extremist move, accusing Trumpist Republican Gov. Ron DeSantis of Florida of creating a bitter, unnecessary, fabricated controversy over the teaching of critical race theory in the schools. It’s simply not taught.

“They’re banning books!” The New York Times quoted Newsom as saying recently. “In 2022!”

Newsom, along with senior state legislators, proposed an amendment to the state’s constitution that would preserve the right to abortion, the newspaper reported. The proposal will be put before voters in November. Viva California!

The leaked draft Supreme Court ruling overturning abortion, a 98-page opinion written by conservative Justice Samuel A. Alito Jr., appointed in 2006 by GOP President George W. Bush, shocked and panicked not only the high court but much of the nation and leaders of the Democratic Party, may they thrive.

Aside from the leak of the final ruling on Roe v. Wade in 1973 — yes, a leak — there’s not much history of premature disclosures of the court’s secret deliberations; it’s far removed from other Washington institutions. Or was.

The court’s preliminary ruling in February has sparked the biggest of battles between conservative Republicans and the more liberal Democrats. It marks a significant shift from a cold civil war in the country to a confrontation heating up between those who want to restrict others from doing what they themselves don’t like and those who want to expand freedom and equality for all.

The flames will surge with anxiety over the expected termination of Roe, which could come with a final decision late next month, coupled with the angst over what a right-wing court might do next to curtail society’s progressive advances, which already are too slow.

The crucial midterm elections in November loom like a dark cloud in the background. The overturning of the legal right to abortion can have a major impact on them. Turnout will be a major factor. Roe’s repeal will mean the instant end of legal abortion in 26 states.

President Joe Biden was at the forefront of publicly expressed concern about follow-ups to a conservative victory to further squelch American rights to privacy enshrined in the 14th Amendment to the Constitution in 1868.

“This is about more than abortion,” he warned recently, mentioning same-sex marriage, contraception and LGBTQ rights and protections.

“What are the next things that are going to be attacked? Because this MAGA crowd is really the most extreme political organization that’s existed in recent American history,” Biden said.

Vice President Kamala Harris echoed Biden in outlining the ramifications of overturning Roe:

“The rights of all Americans are at risk. If the right to privacy is weakened, every person could face a future in which the government can potentially interfere in the personal decisions you make about your life. This is the time to fight for women and for our country with everything we have.” Amen.

A recent Washington Post-ABC News Poll found 54 percent of the American people in favor of retaining Roe while 28 percent said it should be repealed. That’s a 2-1 gap.

Far-right and other extreme conservatives surely are celebrating uproariously over what they see as an enormous victory after decades of crusading to scuttle the right to abortion, adopted by Chief Justice Warren Burger’s court in 1973.

Their glee may be cut short if today’s justices on a 6-3 conservative court together arrive at a different, less overwhelming decision, focusing perhaps on the Mississippi case prohibiting abortion after 15 weeks that led to the appeal to the Supreme Court. Roe allows up to 26 weeks.

But compromise doesn’t appear to be in the lexicon of Republicans in this case because they stacked the court with no fewer than six conservatives, three of them appointed by Trump with help from then-Senate GOP Leader Mitch McConnell of Kentucky, the architect of creating conservative appellate courts.

He refused to bring President Barack Obama’s nomination of Merrick Garland before the Senate, even for a hearing, nearly a year before the 2016 election. He argued the nomination could wait because the people should have a choice in voting for president who would nominate a justice. Trump beat Hillary Clinton and – voila! – the new president nominated conservative Neil Gorsuch.

But McConnell rammed through Trump’s nomination of conservative Amy Coney Barrett mere days before the 2020 election. What happened to his argument about the people’s choice during an election? Oh, the unpardonable hypocrisy. He stole two Supreme Court seats from the Democrats.

The Democrats, at least this generation, have been too meek in confronting authoritative Republican boldness, giving the party the power to become a dictatorship of the minority, with Trump and McConnell heading an axis of tyranny. McConnell is still at it, holding up Biden’s voting rights bill, as one example of unfairness and the unethical. But who says life is fair?

As for the Burger court’s leak of Roe to Time reporter David Beckwith, he was told by the court clerk who leaked it, Larry Hammond, to hold the story until it was to be announced that afternoon, Smithsonian magazine said. They knew each other at law school.

Burger got angry. The announcement had been delayed to avoid upstaging President Richard Nixon’s second inauguration in two days, Jan. 20. Justice Harry A. Blackmun wrote the majority report. Leaker Hammond worked for Justice Lewis Powell. Burger accepted Hammond’s apology.

What’s required to get the country to reverse years of setbacks is for Congress to pass a law guaranteeing the right to an abortion among all of the states, not only the 13 that have passed laws protecting that freedom.

If there’s any greater reason to delete the filibuster, the right to abortion is it, for the sake of all of us who want to live our lives free of government interference. The Republican Party as representative of a minority of the people has become too powerful and un-American.

Richard C. Gross, who covered war and peace in the Middle East and was foreign editor of United Press International, served as the opinion page editor of The Baltimore Sun.