The Supreme Court Gaslights Its Way to the End of Roe

There are many reasons for dismay over the Supreme Court argument in the Mississippi abortion case, but it was the nonstop gaslighting that really got to me.

First there was Justice Clarence Thomas, pretending by his questions actually to be interested in how the Constitution might be interpreted to provide for the right to abortion, a right he has denounced and schemed to overturn since professing to the Senate Judiciary Committee 30 years ago that he never even thought about the matter.

Then there was Chief Justice John Roberts, mischaracterizing an internal memo that Justice Harry Blackmun wrote to his colleagues as the Roe v. Wade majority was discussing how best to structure the opinion Justice Blackmun was working on. The chief justice was trying to delegitimize the place of fetal viability in the court’s abortion jurisprudence, where for nearly 50 years, viability has been the unbreached firewall protecting the right of a woman to choose to terminate a pregnancy.

“It’s an unfortunate source, but it’s there,” he said, referring to Justice Blackmun’s papers, on file and open to the public at the Library of Congress. “In his papers, Justice Blackmun said that the viability line was — actually was dicta.”

“Dicta” is a dismissive word that refers to asides in an opinion that are not actually part of the court’s holding. The entry in the Blackmun papers to which the chief justice was most likely referring was a memo of Nov. 21, 1972 that the author of Roe v. Wade sent along with a new draft opinion to the other justices, noting: “In its present form it contains dictum but I suspect that in this area some dictum is indicated and not to be avoided.”

In that memo, of course referring to what was still a work in progress, Justice Blackmun proposed that the right to abortion be fully protected only until the end of the first trimester of pregnancy. “This is arbitrary,” he wrote, “but perhaps any other selected point, such as quickening or viability, is equally arbitrary.”

But two weeks later, after consulting with other justices, including Lewis Powell and Thurgood Marshall, Justice Blackmun circulated another memo endorsing the viability line. Far from describing this determination as arbitrary, he wrote in a memo dated Dec. 11, 1972, that viability “has logical and biological justifications,” namely, that “few could argue, or would argue, that a state’s interest by the time of viability, when independent life is presumably possible, is not sufficiently developed to justify appropriate regulation.”

In other words, by the time the court issued the final opinion in January 1973, viability was not dicta but rather an essential element of the decision. Chief Justice Roberts may not like viability — as clearly he doesn’t, observing to Julie Rikelman, the lawyer for the Mississippi clinic challenging the state’s ban on abortion after 15 weeks of pregnancy, that “viability, it seems to me, doesn’t have anything to do with choice” — but he was flatly wrong to suggest that it was an unconsidered aspect of Roe v. Wade.

(And of course it is extremely odd for a Supreme Court justice to dig into the court’s private work papers to cast aspersions on a published opinion.)

In fact, as the second Blackmun memo makes clear, the court that decided Roe saw a direct link between the viability line and a woman’s ability to choose abortion. In that second memo, Justice Blackmun referred to the “practical aspect” of the viability line, observing that “there are many pregnant women, particularly younger girls, who may refuse to face the fact of pregnancy and who, for one reason or another, do not get around to medical consultation until the end of the first trimester is upon them or, indeed, has passed.”

And then there was Justice Brett Kavanaugh, who rattled off a list of “the most consequential cases in this court’s history” that resulted from overruling prior decisions. If the court had adhered, for example, to the separate-but-equal doctrine of Plessy v. Ferguson rather than overruling that precedent in Brown v. Board of Education “the country would be a much different place,” he told Ms. Rikelman. “I assume you agree with most, if not all, the cases I listed there, where the court overruled the precedent,” Justice Kavanaugh continued. Why then, he asked, should the court stick with a case it now regarded as wrongly decided?

More gaslighting: The superficial plausibility of Justice Kavanaugh’s analogy between Plessy v. Ferguson and Roe v. Wade dissolves with a second’s contemplation. For one thing, Plessy negated individual liberty, while Roe expanded it. For another, Justice Kavanaugh’s list could have been 1,000 cases long without casting any light on whether today’s Supreme Court should repudiate Roe v. Wade.

But the justice’s goal was not to invite contemplation. It was to normalize the deeply abnormal scene playing out in the courtroom. President Donald Trump vowed to end the right to abortion, and the three justices he put on the court — Neil Gorsuch, to a seat that was not legitimately Mr. Trump’s to fill; Amy Coney Barrett, whose election-eve nomination and confirmation broke long settled norms; and Justice Kavanaugh — appear determined to do just that.

It was Justice Sonia Sotomayor who asked the uncomfortable question. “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” she demanded of Scott Stewart, a former law clerk to Justice Thomas who argued for Mississippi as the state’s solicitor general. Listening to the live-streamed argument, I first heard “political acts” as “political hacks,” I suppose because still in my mind were Justice Barrett’s words when she spoke in mid-September at a center in Louisville, Ky., named for her Senate confirmation mastermind, Senator Mitch McConnell. “My goal today is to convince you that the court is not comprised of a bunch of partisan hacks,” she said then.

Justice Barrett’s performance during Wednesday’s argument was beyond head-spinning. Addressing both Ms. Rikelman and Elizabeth Prelogar, the U.S. solicitor general who argued for the United States on behalf of the Mississippi clinic, Justice Barrett asked about “safe haven” laws that permit women to drop off their unwanted newborn babies at police stations or fire houses; the mothers’ parental rights are then terminated without further legal consequences. If the problem with “forced motherhood” was that it would “hinder women’s access to the workplace and to equal opportunities,” Justice Barrett asked, “why don’t safe haven laws take care of that problem?”

She continued: “It seems to me that it focuses the burden much more narrowly. There is, without question, an infringement on bodily autonomy, you know, which we have in other contexts, like vaccines. However, it doesn’t seem to me to follow that pregnancy and then parenthood are all part of the same burden.”

I’ll pass over the startling notion that being required to accept a vaccine is equivalent to being forced to carry a pregnancy to term. “Gaslighting” doesn’t adequately describe the essence of what Justice Barrett was suggesting: that the right to abortion really isn’t necessary because any woman who doesn’t want to be a mother can just hand her full-term baby over to the nearest police officer and be done with the whole business. As Justice Barrett, of all people, surely understands, such a woman will forever be exactly what she didn’t want to be: a mother, albeit one stripped of her ability to make a different choice.

I will give the gaslighting prize to Justice Kavanaugh and his suggestion that the court should simply adopt a position of “neutrality” with respect to abortion. Abortion is a contentious issue with important interests on both sides, he said to Solicitor General Prelogar. “Why should this court be the arbiter rather than Congress, the state legislatures, state supreme courts, the people being able to resolve this?” he said. “And there will be different answers in Mississippi and New York, different answers in Alabama than California because they’re two different interests at stake and the people in those states might value those interests somewhat differently.”

Justice Kavanaugh painted a soothing description of a down-the-middle resolution, but Solicitor General Prelogar, for one, wasn’t fooled. “The nature of fundamental rights is that it’s not left up to state legislatures to decide whether to honor them or not,” she responded.

Can Justice Kavanaugh really believe what he said? We’ll see soon enough. Last month, the court heard arguments in a case that challenges New York’s strict requirement for a license to carry a concealed weapon. Most states have looser restrictions. New York, through its legislative process, is in a minority.

Will Justice Kavanaugh and those of his colleagues who glorify a recently manufactured version of the Second Amendment allow New York City to keep going its own way on gun safety in the name of “letting the people decide”? That’s about as likely as the chance that those very same justices will decide to keep the right to abortion on the books. In both cases, we know what they’re going to do. The only mystery is how they will explain it.

Brett Kavanaugh’s Rage & Tears Are Revealing, Body Language Expert Says

PHOTO: ANDREW HARNIK/POOL/GETTY IMAGES.
Brett Kavanaugh’s forceful, aggressive testimony stood in stark contrast with Dr. Christine Blasey Ford’s polite deference as they both testified in front of the Senate Judiciary Committee on Thursday.
We have to be careful and remember that behavioral analysis alone cannot determine somebody’s guilt or innocence, says body language expert Patti Wood, author of Snap: Making the Most of First Impressions, Body Language, and Charisma. But after analyzing Kavanaugh’s testimony, she says it’s worth highlighting the revealing moments that say a lot about who he is.
“His extreme emotions and inability to control his anger, rage, contempt, and tears is revealing,” Wood tells Refinery29. “I have analyzed dozens of congressional hearings and I have never seen someone questioned display this broad range of emotions or this intensity.” Wood says Kavanaugh used emotions that are known as “cover emotions” in deception detection; anger, “victim tears,” and laughter. These emotions can be sincere and he could be showing them because he is innocent, but they can also “cover guilt,” she says.
“His tears seem real and they can certainly call forth empathy,” she continues. “They can show that he is absolutely innocent, but I have also seen in my work throughout the years that people who are ‘caught’ sometimes cry because they feel like victims of circumstances. I have additional problem with somebody crying during their congressional testimony. I have seen people eviscerated during congressional testimony. He was not questioned with the same intensity as many have been. He’s the first person I’ve ever seen cry.”
She notes that when questioned by senators, Kavanaugh tended to both evade questions and redefine their terms, something that doesn’t necessarily mean a person is guilty, but is a notable habit. She pointed out that it could have been a conscious choice to say, “I never had any sexual or physical encounter of any kind with Dr. Ford,” rather than using the name Christine Blasey, which she was known by back when they were teenagers, at the time of the alleged assault. “I have seen this technique used so often by liars,” she says. “He has a habit of rephrasing and redefining terms and of not answering direct questions.”
PHOTO: WIN MCNAMEE/GETTY IMAGES.
An example of evasion is when he responded to Sen. Amy Klobuchar asking him whether he had ever blacked out after drinking too much with “belligerent and attacking nonverbal cues,” responding with a question rather than an answer: “Have you?” Wood says he used humor and the “everybody does it, we all like beer response” to the questions about drinking. “I was very briefly a substance abuse counselor and I had to question people every week on their drinking and their behavior,” she says. “I would have asked him more specific questions like, ‘How many beers did you typically drink at a party?‘ ‘What is the most you ever had to drink in one evening?’ … The drinking questions are critical to the assault allegations, and it was interesting that that line of questioning was interrupted.”
Wood says that a key piece of Dr. Ford’s testimony was revelatory; when she said that Kavanaugh and Mark Judge’s laughter — “the uproarious laughter between the two, and their having fun at my expense” — is the strongest impression in her memory. “If Kavanaugh did it and he was laughing, he may not have seen it or felt it as anything but ‘horseplay,'” says Wood. “He may not have had it register in his memory as anything wrong or bad. And if he was drunk, he may not have remembered it at all. This is important because his anger is so strong and he seems so emphatic, and he could actually feel he never did anything like this.”
Wood emphasized that we still don’t know the truth.

How to spot a pattern of denials in the #MeToo movement

Brett Kavanaugh testifies to the Senate Judiciary Committee during his Supreme Court confirmation hearing on Sept. 27, 2018 in Washington, DC. (Win McNamee/Getty Images)

When Brett Kavanaugh denied sexual assault allegations, attacked his accuser’s memory, and then described himself as being the victim of a conspiracy — several psychologists knew what they were seeing: DARVO.

DARVO stands for deny, attack, and reverse victim and offender. The term was coined by a research team at the University of Oregon and the University of California, Santa Cruz, who identified the pattern alleged abusers use to deflect attention away from themselves and back to the person making the accusation.

University of Oregon psychology professor and Stanford fellow Jennifer Freyd, said that the reason it gets used frequently is that it works.

Jennifer Freyd is a psychology professor at the University of Oregon and a fellow at Stanford’s Center for Advanced Study in the Behavioral Sciences (Submitted by Jennifer Freyd)

“I did not expect … that so many people actually found the DARVO convincing. But it makes sense. I mean that’s why people use it,” said Freyd.

However, she said that the number of people who are inclined to believe a DARVO response, lessens significantly as soon as they understand its mechanics.

For example, Freyd identified Kavanaugh as someone who used this aggressive retort to shift blame away from himself when accused of sexual harassment by Christine Blasey Ford and other women.

Here’s how DARVO works, using Kavanaugh’s senate testimony.

DENIAL:

“The drinking age was 18 in Maryland for most of my time in high school and was 18 in D.C. for all of my time in high school. I drank beer with my friends. Almost everyone did. Sometimes I had too many beers. Sometimes others did. I liked beer. I still like beer. But I did not drink beer to the point of blacking out and I never sexually assaulted anyone.”

ATTACK:

“Dr. Ford’s allegation is not merely uncorroborated, it is refuted by the very people she says were there, including by a longtime friend of hers. Refuted.”

REVERSE VICTIM AND OFFENDER:

“This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.”

Freyd asserted that while not everyone accused of an accusation is guilty, DARVO is not a good way to defend your innocence.

“You don’t have to respond defensively to an accusation, whether you’ve done it or have not done it. And a non-defensive response can really move people,” said Freyd.