The Irrational, Misguided Discourse Surrounding Supreme Court Controversies Such as Roe v. Wade

Politico on Monday night published what certainly appears to be a genuine draft decision by Supreme Court Justice Samuel Alito that would overturn the Court’s 1973 decision in Roe v. Wade. Alito’s draft ruling would decide the pending case of Dobbs v. Jackson Women’s Health Organization, which concerns the constitutionality of a 2018 Mississippi law that bans abortions after fifteen weeks of pregnancy except in the case of medical emergency or severe fetal abnormalities. Given existing Supreme Court precedent that abortion can only be restricted after fetal viability, Mississippi’s ban on abortions after the 15th week — at a point when the fetus is not yet deemed viable — is constitutionally dubious. To uphold Mississippi’s law — as six of the nine Justices reportedly wish to do — the Court must either find that the law is consistent with existing abortion precedent, or acknowledge that it conflicts with existing precedent and then overrule that precedent on the ground that it was wrongly decided.

Alito’s draft is written as a majority opinion, suggesting that at least five of the Court’s justices — a majority — voted after oral argument in Dobbs to overrule Roe on the ground that it was “egregiously wrong from the start” and “deeply damaging.” In an extremely rare event for the Court, an unknown person with unknown motives leaked the draft opinion to Politico, which justifiably published it. A subsequent leak to CNN on Monday night claimed that the five justices in favor of overruling Roe were Bush 43 appointee Alito, Bush 41 appointee Clarence Thomas, and three Trump appointees (Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett), while Chief Justice Roberts, appointed by Bush 43, is prepared to uphold the constitutionality of Mississippi’s abortion law without overruling Roe.

Draft rulings and even justices’ votes sometimes change in the period between the initial vote after oral argument and the issuance of the final decision. Depending on whom you choose to believe, this leak is either the work of a liberal justice or clerk designed to engender political pressure on the justices so that at least one abandons their intention to overrule Roe, or it came from a conservative justice or clerk, designed to make it very difficult for one of the justices in the majority to switch sides. Whatever the leaker’s motives, a decision to overrule this 49-year-old precedent, one of the most controversial in the Court’s history, would be one of the most significant judicial decisions issued in decades. The reaction to this leak — like the reaction to the initial ruling in Roe back in 1973 — was intense and strident, and will likely only escalate once the ruling is formally issued.

Every time there is a controversy regarding a Supreme Court ruling, the same set of radical fallacies emerges regarding the role of the Court, the Constitution and how the American republic is designed to function. Each time the Court invalidates a democratically elected law on the ground that it violates a constitutional guarantee — as happened in Roe — those who favor the invalidated law proclaim that something “undemocratic” has transpired, that it is a form of “judicial tyranny” for “five unelected judges” to overturn the will of the majority. Conversely, when the Court refuses to invalidate a democratically elected law, those who regard that law as pernicious, as an attack on fundamental rights, accuse the Court of failing to protect vulnerable individuals.

This by-now-reflexive discourse about the Supreme Court ignores its core function. Like the U.S. Constitution itself, the Court is designed to be an anti-majoritarian check against the excesses of majoritarian sentiment. The Founders wanted to establish a democracy that empowered majorities of citizens to choose their leaders, but also feared that majorities would be inclined to coalesce around unjust laws that would deprive basic rights, and thus sought to impose limits on the power of majorities as well.

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How the Supreme Court Rewrote the Constitution Part VII: Concentration Camps and the End

This is the last installment in a series on the nadir, or low point, of the U.S. Supreme Court. This was the period from 1937 to 1944, when the court stopped protecting the Constitution’s limits on the federal government. Our Constitution has never fully recovered.

The firstsecondthirdfourthfifth and sixth installments related to how the justices initially tried to balance the demands of President Franklin D. Roosevelt’s New Deal with the Constitution’s rules. In 1937, however, Roosevelt began to replace sitting justices with New Deal enthusiasts who had no prior judicial credentials. The remodeled bench successively discarded limits on federal spending, federal property ownership, and federal economic regulation. In at least one case, it abandoned habeas corpus and the right to a trial by jury.

This final installment addresses the court’s role in what was, aside from slavery, the most egregious violation of civil rights in U.S. history. It adds some observations on how the court’s abysmal record from 1937 to 1944 continues to affect us today.

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Mystal: U.S. Constitution Is ‘Trash’ Written by Slave-Owning ‘White People’

The Nation’s justice correspondent Elie Mystal said Friday on ABC’s “The View” that the United States Constitution is “trash” written by slave-owning white people.

Discussing his new book “Allow Me to Retort: A Black Guy’s Guide to the Constitution,” Mystal said, “Republicans are obviously trying to manipulate those laws, particularly the rights of minorities, women, and the LGBTQ communities, and I explain it in ways we can understand so we can fight them.”

Co-host Ana Navarro said, “I live in Florida, so I’m, like, on ground zero of where all of this is happening. I’m out of my mind about the bills banning conversations about race and ethnicity and LGBTQ, just even mentioning gender identity in primary schools…Are you arguing for throwing out the Constitution? Should the Constitution be thrown out? What do we do? Is it a living document, or is it a sacred document?”

Mystal said, “It’s certainly not sacred. Let’s start there. The Constitution is kind of trash. Again, let’s just talk as adults for a second.”

Co-host Joy Behar said, “What did you say?”

Mystal said, “It’s kind of trash. It was written by slavers and colonists and white people willing to make deals with slavers and colonists. They didn’t ask anybody who looked like me what they thought about the Constitution.”

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Political science professor claims in Politico essay that Constitution is enemy of Democracy

The day prior to the one-year anniversary of the Jan. 6 Capitol breach, Politico magazine ran a guest column by a political science professor who argued the U.S. Constitution has become a threat to democracy.

Corey Robin, a professor at Brooklyn College and the City of New York Graduate Center, wrote a piece titled “Republicans Are Moving Rapidly to Cement Minority Rule. Blame the Constitution.” 

In the piece, he argues the modern Republican Party and the Constitution are preventing the “national majority,” meaning the Democratic Party, from legislating effectively.

“Driving the initiatives of the Republicans and the inertia of the Democrats are two forces,” Robin writes. “The first is the right’s project, decades in the making, to legally limit the scope and reach of democracy. The second is the Constitution, which makes it difficult for the national majority to act and easy for local minorities to rule.” 

In the essay, Robin also criticizes constitutional facets of the American electoral process including the Electoral College and the Senate, all for the purpose of repeatedly leveling anti-Democratic accusations against the GOP.

“Democracy is not just the enemy of the Republican Party. It is also the enemy of the Constitution,” he writes. “Americans associate the Constitution with popular liberties such as due process and freedom of speech. They overlook its architecture of state power, which erects formidable barriers to equal representation and majority rule in all three branches of government.”

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