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.
PROTECT PA JOBS
I will fight to keep taxes as low as possible, protecting your earnings and your freedom, and slash regulations to get DC off the necks of Pennsylvania job creators.
I’m from a union family and understand how important unions have been to middle-class families in Pennsylvania. I will always support middle-class working families and defend their rights in the workplace.
After decades of being beholden to OPEC, we are finally energy independent. A net energy exporter, in fact. We need to keep it this way. Fracking creates jobs and keeps us free. I will support Pennsylvania’s energy workers – and I won’t let my party betray them.
FIGHTING FOR VETERANS
Our veterans are the best of us. When they raise their right hand and volunteer to serve our great nation, they do so knowing that they may give their lives in defense of our freedom. When our veterans come home from distant battlefields, they deserve to be thanked on behalf of a grateful nation, but that gratitude must not stop there. Our leaders need to work relentlessly on their behalf to ensure they’re given a fair deal on the home front. They fought for us; now it’s our turn as American citizens to fight for them.
I will never forget the dedication and sacrifice of our nation’s warriors. Veterans who fought and bled for this country should not have to fight and bleed for the healthcare and benefits they were promised. Veterans willingly chose to serve this nation during a time of war; they deserve the right to choose where to get their healthcare. If you like the care you receive at the VA, great. You can keep it. If you don’t, then it should be your right as a veteran to choose where you want to go.
Veterans who deploy to defend the streets of America should not have to return home to sleep on them. I will fight to ensure our veterans stay off the streets and in jobs where they can provide for their families and live the American Dream that they bled to protect.
As we look at what happened in 2020, we need to work to make sure the voters never again have a reason not to have faith in our electoral process. We need to increase transparency and security to prevent voter fraud by making sure signature verification is taking place on mail-in ballots and promoting stability in the process. There should be no changes by unelected bureaucrats or activist judges within 60 days of the election. Our election workers have a great deal of responsibility and changing the rules of the game on them by proclamation within 60 days places unnecessary burdens on them.
SUPPORT LAW ENFORCEMENT
There are those who spend their time and energy trying to tear our police officers down. They attack them for the uniform they wear. They use their positions of power to advocate for defunding the police and demonizing them, while every day, our police walk out their door to keep the people of their communities safe from those that wish to do us harm.
THE AMERICAN DREAM
America is still the greatest nation in the history of the world. While the radical left is trying to silence free speech, transform our institutions, and roll back our constitutional rights, I will always fight to defend the country I love.
Strengthening our military
As someone who has served in fierce combat, I know firsthand the importance of making sure our troops are supported and well-funded. We need to ensure our military is the strongest fighting force in the world and is used to defend Americans from our enemies, NOT to police every corner of the earth. At the same time, we need to be fully funding our military budget. China and Russia are not backing down, and we need to be prepared to defend ourselves should the need arise.
“…The right of the people to keep and bear arms shall not be infringed…” I will fight like hell to protect the right to keep and bear arms, and I reject the notion that society is somehow guilty because a criminal commits a crime. We do not need more gun control laws, we need to enforce the laws we have and give resources to those whose job is to enforce those laws.
I have a pre-existing condition. This is personal to me. I will always protect people with pre-existing conditions and make sure they have the same access to quality health care.
I want Americans to have the freedom to choose a healthcare plan that fits their needs. The best way to drive healthcare costs down is to get people jobs, allow insurance companies to compete across state lines, and allow small companies to band together to get lower rates.
I will defend the good health benefits Pennsylvania’s labor unions have won through negotiation – and fight the liberals who try to take these benefits away.
I believe the more insurance companies have to compete for your business, the more affordable healthcare will be, and it will ultimately empower all Americans to pick a customizable plan that works best for them.
Securing the border is a national security issue, it’s an illegal drugs and guns issue, and it’s a human trafficking issue. We need leaders to admit this is a crisis. President Biden’s failure to acknowledge the problem he created shows the lack of sincerity in addressing our nation’s border security.
If there are members of either party that are serious about fixing our immigration system, I will gladly work with them. But first, we must secure the border.
I will stand up against those who want to open our border and continue to allow for policies like sanctuary cities that circumvent federal law to exist. Those positions are out of step with what the majority of Pennsylvanians believe, and I will always put Pennsylvania first.
fight for the unborn & the supreme court
I am pro-life, and will always vote to protect the unborn. As a US Senator, I will vote to confirm judges who share that view. I will strongly support pieces of legislation like the Born Alive Act, and believe Joe Biden’s decision to revoke the Mexico City policy undermines our moral leadership worldwide.
I disagree with packing the court or confirming justices that will legislate from the bench. We are a country of laws, and the judiciary should enforce them as they are written, not create policy.
SOCIAL SECURITY & MEDICARE
It’s simple, Social Security and Medicare should be protected. People have paid into the program their whole lives, and at the end of the day, they have earned it, and they deserve their Social Security and Medicare at retirement.
Do Black people have full Second Amendment rights?
That’s the question historian Carol Anderson set out to answer after Minnesota police killed Philando Castile, a Black man with a license to carry a gun, during a 2016 traffic stop.
“Here was a Black man who was pulled over by the police, and the police officer asked to see his identification. Philando Castile, using the NRA guidelines, alerts to the officer that he has a licensed weapon with him,” she says. “[And] the police officer began shooting.”
In the 1990s, after the assault on the Branch Davidian compound in Waco, Texas, the National Rifle Association condemned federal authorities as “jackbooted government thugs.” But Anderson says the organization “went virtually silent” when it came to Castile’s case, issuing a tepid statement that did not mention Castile by name.
In her new book, The Second: Race and Guns in a Fatally Unequal America, Anderson traces racial distinctions in Americans’ treatment of gun ownership back to the founding of the country and the Second Amendment, which states:
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
The language of the amendment, Anderson says, was crafted to ensure that slave owners could quickly crush any rebellion or resistance from those whom they’d enslaved. And she says the right to bear arms, presumably guaranteed to all citizens, has been repeatedly denied to Black people.
“One of the things that I argue throughout this book is that it is just being Black that is the threat. And so when you mix that being Black as the threat with bearing arms, it’s an exponential fear,” she says. “This isn’t an anti-gun or a pro-gun book. This is a book about African Americans’ rights.”
On the crafting of the Second Amendment at the Constitutional Convention
It was in response to the concerns coming out of the Virginia ratification convention for the Constitution, led by Patrick Henry and George Mason, that a militia that was controlled solely by the federal government would not be there to protect the slave owners from an enslaved uprising. And … James Madison crafted that language in order to mollify the concerns coming out of Virginia and the anti-Federalists, that they would still have full control over their state militias — and those militias were used in order to quell slave revolts. … The Second Amendment really provided the cover, the assurances that Patrick Henry and George Mason needed, that the militias would not be controlled by the federal government, but that they would be controlled by the states and at the beck and call of the states to be able to put down these uprisings.
On Black people’s access to arms after the American Revolution
You saw incredible restrictions being put in place about limiting access to arms. And this is across the board for free Blacks and, particularly, for the enslaved. And with each uprising, the laws became even more strict, even more definitive, about who could and who could not bear arms. And so free Blacks were particularly proscribed. And so we see this, for instance, in Georgia, where Georgia had a law that restricted the carrying of guns.
On the Founding Fathers’ fear of a slave revolt, which was stoked by the Haitian Revolution
When Haiti began to overthrow the French colonial masters and were seizing that country for themselves, when Blacks were seizing that country for themselves, the violence of the Haitian Revolution, the existence of the Haitian Revolution, just sent basically an earthquake of fear throughout the United States. You had George Washington lamenting the violence. You had Thomas Jefferson talking about [how] he was fearful that those ideas over there, if they get here, it’s going to be fire. You had James Madison worried. …
Whites … were fleeing Haiti and were bringing their enslaved populations with them, their enslaved people with them. … [There was a fear that] the ideas that these Black Haitians would have, that somehow those ideas of revolution, those ideas of racial justice, those ideas of freedom and democracy would just metastasize throughout Virginia’s Black enslaved population and cause a revolt. You had that same fear coming out of Baltimore that then began to open up the public armory to whites, saying, “You are justified in being armed because they’re bringing too many of these Black Haitians, these enslaved Haitians, up here who have these ideas that Black people can be free.”
On how the Black Panthers responded to restrictions on Black people’s ability to bear arms in the 1960s
What the Black Panthers were dealing with was massive police brutality. Just beating on Black people, killing Black people at will with impunity. And the Panthers decided that they would police the police. Huey P. Newton, who was the co-founder of the Black Panthers along with Bobby Seale, … knew the law, and he knew what the law said about being able to open-carry weapons and the types of weapons you were able to openly carry and how far you had to stand away from the police arresting somebody or interrogating somebody. … And the police did not like having these aggressive Black men and women doing that work of policing the police. And the response was a thing called the Mulford Act, and the Mulford Act set out to ban open carrying of weapons. And it was drafted by a conservative assemblyman in California with the support and help of an NRA representative and eagerly signed by Gov. Ronald Reagan as a way to make illegal what the Panthers were legally doing.
Sam Briger and Kayla Lattimore produced and edited the audio of this interview. Bridget Bentz, Molly Seavy-Nesper and Meghan Sullivan adapted it for the web.
Follow-up: New Army Gun will alter Gun Control Debate
Talking about the second amendment during a rally, Florida Congressman Matt Gaetz said that people have a right to an armed rebellion against the government.
Matt forgot the word ‘peaceably’ when he was talking about our First Amendment.
2nd amendment means you can bring your AR to a drone fight. Best of luck with that.
“We are the elites”? I thought Republicans hated elitism. They always use the word to defame liberals. The GOP sure has more than its share of crazies.
Victim hood , it’s been used since the beginning of time . Freedom is free it’s in the word . It’s not feedom .
Matt Gaetz: proof that turds can be polished.
The armed rebellion has happened! This is truly wicked! The Lord himself hates those who sow discord, has a lying to tongue 😛, it’s a matter of time! The fall is sure!
This would not have been tolerated back in the 80s. I remember when Republicans had some class and dignity, now I’m ashamed when people find out I’m Republican.
Watch the Florida congressman in action at a recent rally:
The founders had a word for a bunch of farmers marching with guns without government sanction: a mob. One of the reasons we have a Constitution is the founders were worried about the danger posed by individuals acting like a militia without legal authority. This was precisely what happened during Shays’ Rebellion, an insurrection in western Massachusetts that persuaded many Americans that we needed a stronger central government to avert anarchy.
Many people think that we have the Second Amendment so that we can take up arms against the government if it overreaches its authority. If that interpretation were correct, it would mean that the Second Amendment had repealed the Constitution’s treason clause, which defines this crime as taking up arms against the government. In reality, in the first decade after the Constitution, the government put down several rebellions similar to Shays – and nobody claimed that they were merely asserting their Second Amendment rights.
Read Cornell’s entire piece at The New York Daily News.
American historian Joanne Freeman also chimes in: