Years ago I was a finalist for a position on the Florida First District Court of Appeal, nominated and my name forwarded to Governor Scott's office for interviews of the four or five of us who'd made the list.
I studied for that day like it was a final exam, reading everything the Federalist Society made available on its webpage regarding the hot button issues of the day. For it was not enough that I had a very strong academic record, fairly distinguished legal career, and narrative of public service that included serving in combat. I also had to be able to mouth the things the interviewers believed, convincingly.
But apparently not convincingly enough, because here I am, robe-less and pecking at a computer in Key West, with a beautiful wife who would've hated working in Tallahassee, homes in places that are of our own choosing because we have that flexibility out here in the private sector, and the ability to tell a dirty joke or have a second cocktail in public without worrying that I'm sullying the reputation of the court and weakening the rule of law.
That education, that insight into the process of judicial selection and the way the coup plotters on the right think, provided context as I waded through the 213 pages of Dobbs v. Jackson Women's Health, the opinion that overturned Roe v. Wade last week. The majority opinion read like a Federalist Society law review article, smarmy and condescending toward anyone with a contrary view. I was on the law review back in the day, and observe looking back that my classmates who held strong ideological ties to the far right generally didn't make the cut. Of course, they're mostly running the country now.
Anyone who's wandered the fever swamps of right-wing statutory construction doctrine would readily recognize Justice Alito's analytical framework. Start with the document, and see if it expressly addresses the right being questioned. Nope. It doesn't say the word "abortion" anywhere. But that's not the end of the process. Now we must reach back to what's been called in short-hand the "history and tradition" rubric, and see how the issue was treated when the Bill of Rights became law in 1789, and when the Fourteenth Amendment extended those protections to limit state action in 1868.
So down the rabbit hole Alito went, quoting seventeenth century treatises by folks like Blackstone, surveying the state of abortion laws in the years following the Civil War, dazzling with descriptions of what our ancestors thought constituted "quickening" or whatever. The bottom line is that because, in Alito's conclusion, abortion was not a right firmly rooted in American history and tradition at the time the constitutional amendments became law, those words adopted by long-dead lawmakers cannot provide a basis to support a constitutional right to reproductive autonomy, whether grounded in due process or liberty or equal protection.
This should worry you. As has been observed repeatedly in the last few days, there are lots of rights that weren't part of "history and tradition" two hundred years ago that we now take for granted. Birth control. The ability to marry pretty much whomever one chooses, whether the same or different race or gender. Taking Alito's framework to its illogical extreme, the basket of rights we grew up largely taking for granted are now back in play for the theocratic right.
But not to worry, Alito tells us, we're not talking about all those other rights that are neither expressly protected in the Constitution nor firmly rooted in our history. He reminds us of that more than once. But Justice Thomas is more candid in his concurrence, and muses that the individual rights Justice Douglas found were implied in the "penumbras and emanations" of the Constitution when he penned Griswold v. Connecticut are, in fact, now open to question.
But how can that be? Doesn't the doctrine of stare decisis, which binds the courts by their own precedents, mean rights already recognized by the Supreme Court as having their source in the Constitution are inviolate? Not according to Alito in Dobbs. Instead, he reminds us that the Court has receded from bad precedent before, bludgeoning the libtards with the memory of the execrable holding in Plessy v. Ferguson, which made separate-but-equal the law of the land until the Supremes reversed course in Brown v. Board of Education over five decades later. Sometimes courts get it wrong, Alito counsels, and there is a checklist that serves as a guideline for them to analyze whether to undo past mistakes. In his analysis, Roe was just such a case, and the Court's own precedent mandated that the mistake be blotted out.
This is dangerous ground, as the Court's rulings over the last few days have shown. Just yesterday they released the holding in Kennedy that cast into the jurisprudential junk bin the longstanding rule that a state official acting in his official capacity cannot lead sectarian prayer because such behavior violates the Establishment Clause. That's been the law since Lemon v. Kurtzman was decided in 1971, but Justice Gorsuch engaged in the same crazy textualist gyrations as Alito had in Dobbs, and with the stroke of a pen that half-century-old bulwark against your coach or judge or county commissioner shoving his benighted religious superstitions down your throat disappeared with nary a "poof".
So now we have an illegitimately constituted court (remember what happened with the Merrick Garland nomination, followed by the eleventh-hour appointment of the creepy Catholic cultist Amy Comey Barrett to the Court just as DJT began planning the insurrection?--we'd be 5-4 the other way if the process worked as it should have), unfettered by its own precedents and ready to set the knob on the time machine back to 1789. Is there nothing we can do about this?
Not to worry, Alito consoles--there's always the democratic process. Just get your local legislature to pass a law, or not pass a law, or whatever.
Well, about that.
First, this same Court has gutted the Voting Rights Act, turned a blind eye to gerrymandering as a "political" issue, and repeatedly countenanced a rapid and material erosion in the functioning of our democratic political structures. Large swaths of our country are now controlled by a theocratic, racist, misogynistic minority whose sole idol is power. If you're wealthy and have a portable profession you can always move, but for most folks stuck with a middling job and a mortgage in a shitty red state, this season of our nation's history simply presents a hopeless erosion of individual rights and no way to push back through the ballot box.
Further, the Court's role has always been essentially counter-majoritarian when it comes to individual liberty. The Constitution provided the space for us to live our lives without our neighbors dictating who we loved, what God we worshipped or did not worship, or whether to bring a child into the world. Don't count on getting 50.1 percent of the vote to preserve any of those things, because it's just human nature to feel the urge to cram our vision for society down our neighbors' throats. And a so-called "Christian Nation" is particularly vulnerable to this sort of thing, given our grounding in a theology that demands we convert those around us, for their own good of course.
The courts and the Constitution protected that small but sacred liberty space. And it took both, because the words of the Constitution were intentionally vague, leaving room for interpretation as society changed. The courts have provided that interpretation since Marbury, and if there's an arc or a pattern to the constitutional jurisprudence of the last two hundred years, it's a sometimes halting and frustratingly slow recognition of individual rights and personal autonomy and dignity. Lacking a common ethnicity or religion, it's that shared story of the rule of law preserving our individual rights, creating the space for us to grow into our best selves, that makes us a nation and not just an assembly of jostling factions.
That all ended this week. To my recollection this is the first time the Court has eliminated a previously recognized constitutional right, a step backward and perhaps the beginning of the legal unraveling of the society we thought we'd created over the last five or six decades. Alito's inference that this Court's holding in Dobbs is the equivalent of the Warren Court's ruling in Brown v. Board of Education mocks our heritage, and is just the sort of risible, tone-deaf jurisprudential nonsense we'd been warned would be forthcoming if the conservatives ever hold sway on the Supreme Court.
And that's all I have to say about that.
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