At a party of liberal activists to mark the end of the Senate confirmation hearing for Supreme Court nominee Ketanji Brown Jackson, and her likely confirmation as the first Black female justice, the mood in the downtown Washington club this week was upbeat even before funk star Chaka Khan took the stage.
I’m glad they enjoyed it, because this crowd has little else to celebrate in the months and years ahead.
Even amid the partying, folks lamented the likelihood that the Supreme Court, by the end of its term in June, will effectively strike down the half-century-old constitutional right to abortion established by Roe v. Wade. They also know that Jackson’s expected replacement of retiring Justice Stephen G. Breyer after this term — a swap of one liberal for another — won’t change the conservatives’ 6-3 stranglehold on the court.
And that means more defeats ahead at the court’s hands, and on social issues that have majority support nationwide.
As emboldened Republicans made clear during the week of Jackson’s hearing, at the Senate Judiciary Committee and elsewhere, conservatives are playing a long game that doesn’t stop with curbing abortion rights. Republicans are now openly questioning other familiar court precedents on reproductive, racial and LGBTQ rights that go to Americans’ most intimate decisions about whom they marry and whether they have children.
Perhaps the only person more unnerved than supporters of these rights is the court’s chief justice, John G. Roberts Jr.
Roberts is a strong conservative who opposes abortion and same-sex marriage. Yet he’s also protective of the institution of the Supreme Court and its public image, which was scuffed even before the biggest furor yet involving right-wing power couple Clarence and Virginia “Ginni” Thomas left many Americans (further) questioning Justice Thomas’ impartiality.
So Roberts is less likely than Thomas and the four other conservatives to chuck the court’s precedents, especially widely popular ones, as they take the front lines of Republicans’ culture wars. Proposals on the left to enlarge the court to restore some balance — ideas that President Biden and most congressional Democrats are resisting — could well gain traction if the court is seen as lurching too far right. Worse, Roberts knows, the court could lose the mainstream support essential to its legitimacy.
Contrary to Roberts’ prudence, however, other conservatives on the court and off are barreling ahead in hopes that the right’s lopsided majority can brake, even reverse, the rights won in past decades.
That explains the otherwise inexplicable three-minute video that Tennessee’s Sen. Marsha Blackburn released before Jackson’s hearing, previewing a theme she’d return to — with saccharine snark in her best “Bless your heart” style — as she interrogated the nominee. The Republican senator singled out as wrongly decided a 1965 ruling, Griswold v. Connecticut, that is little known to most Americans but enjoyed by countless: It established a right to use contraceptives.
Last month in a debate, three Republicans running to be Michigan’s attorney general also condemned Griswold. It’s not that conservatives are opposed to the pill and its alternatives, though some are. Rather, they consider Griswold a sort of judicial original sin: By creating a constitutional right to privacy, the court 57 years ago (by a 7-2 vote, by the way) laid the foundation for later rulings on abortion rights, interracial and same-sex marriage, and more.
Which brings us to Republican Sen. Mike Braun of Indiana and his attack last week not only against Griswold and Roe, but also Loving v. Virginia. That wonderfully named 1967 ruling struck down state laws against interracial marriage — making the Thomases’ marriage possible, and Jackson’s, and so many millions more over 55 years.
While Braun soon retreated after facing blowback, the video of his session with Indiana reporters made clear that he meant what he said, and his remarks were in fact philosophically consistent: If, as he argued, the Constitution doesn’t establish a right to privacy — it’s not explicitly mentioned — then Loving was just as wrongly decided as Roe and others based on that privacy right; it’s up to the states to decide whether their residents can get abortions and marry someone of a different race or the same sex.
A reporter twice asked Braun whether his reasoning extended to Loving. “Yes,” he said without a pause. “If you’re not wanting the Supreme Court to weigh in on issues like that, you’re not going to be able to have your cake and eat it too. I think that’s hypocritical.”
Unlike Braun, fellow Republican Sen. John Cornyn of Texas isn’t retreating from his criticism of Obergefell v. Hodges, the 2015 ruling establishing a right to same-sex marriage. That decision, he told Jackson during his questioning of her, created “a conflict between what people may believe as a matter of their religious doctrine or faith and what the federal government says is the law of the land.”
“Now don’t get me wrong,” Cornyn added. “I’m not arguing the merits or lack of merits of same-sex marriage. I believe the states and the voters can choose what they will.”
There we have it: Republicans are not only anticipating the end of a nationally recognized right to abortion, but also looking to build on that victory to target other rights we thought were “settled law” — as Republican nominees to the Supreme Court call Roe while they’re seeking Senate confirmation. We’d be back to a patchwork of state laws, where we once had fundamental rights.
We won’t be partying then.
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