Barbarians at the Gate: The Appearances Are Awful
Taking a break from his busy schedule of stripping half the American populace of bodily autonomy, Justice Samuel Alito, the smug, sneering, imperious face of a fundamentalist SCOTUS supermajority "redefining the Constitutional landscape, and not to Americans' liking," got a standing ovation last week from the swanky zealots of the Federalist Society who in large part made it possible - thus proving again, despite Barack's best intentions, we are not really all one country. There is no fouler proof of our divisions than the six, Catholic, extremist justices who now make up the majority of the Supreme Court - though the presidents who chose them have lost 7 of the last 8 popular votes - and who are resolutely driving the country's laws "sharply to the right" of mainstream public opinion. Alito, of course, wrote the opinion overturning Roe v Wade, though he had to stoop to misquoting a 12-century Christian crank in his abject effort to justify revoking a right that two-thirds of the country supports. Amid heavy security, he was joined by three of his accomplices - Barrett, Gorsuch, Kavanaugh - at the Federalist Society's 40th anniversary gala, where 2,000 aging, fearful, sectarian dinosaurs in tuxes and ball gowns applauded their sordid work holding back the tides of change and time. Roberts had hedged on Dobbs, calling the ruling "a jolt to the legal system." Only Clarence Thomas of the Hard-Core Four stayed home, likely plotting the next coup with his lovely "terrorist-in-pearls" wife Ginni, God love 'em both 'cause who else would?
Founded in 1982 by Yale Law School students to provide a voice for conservatives on the mostly liberal campus, the Federalist Society, now with chapters at 200 law schools, has long, laughably billed itself as non-partisan; because denial is the right's super-power, the Society dismisses the notion they have "captured" the federal judiciary. But over time, and especially during the Orange Reign, it grew into a sort of "farm team" for extremist federal judges, with Trump outsourcing his selection of judicial nominees to them and they, in turn, literally handing him lists of those ,who would advance their agenda. "We're going to have great judges, conservative, all picked by the Federalist Society," he obliviously boasted in 2016, and so they were. Over half his judicial nominees came from the Society, 15 of his appeals court judges spoke at the conference, and their "well-oiled machine" ultimately, lethally gave him three SCOTUS picks, more than any modern president - Gorsuch, Kavanaugh, Barrett, all members of the Society. The invidious Barrett was cheered when she spoke; she said she had "benefitted immensely" from her ties to the Society, and it was "really nice to have a lot of noise made not by protesters outside my house." Leonard Leo, mastermind of the group's grip on judicial selections, also got a standing ovation when he told the crowd, “Our movement has grown by leaps and bounds, and so has our impact." "And boy, is your work needed today,” said nobody ever. No, wait. Alito said it.
That impact, of course, goes far beyond abortion access. After mid-terms, many noted the Federalist-packed SCOTUS had "helped the GOP gerrymander its way" into control of the House, thanks to a 2019 SCOTUS ruling rejecting claims GOP maps in Louisiana and Alabama constituted racial gerrymandering that diluted black votes. The maps stayed; in this election, the GOP won five of its six races in Louisiana, and six of its seven in Alabama, leading to what one sage called, "The House that Alito built." The Federalist gala was held before all the votes had been tallied, but still members were palpably grateful for all Alito and his henchmen (and woman) had done. The crowd cheered when one speaker crowed "the Dobbs decision will be forever an indelible part of Justice Alito's legacy." They rose to their feet, turned to their hero, and stood triumphantly clapping after former Michigan Supreme Court justice Stephen Markman said, "I do not know of any decision on any court by any judge of which that judge could be more proud," never mind all four perps lied in their confirmation hearings that they considered Roe settled law - Alito said he was "a believer in precedents" - and their ruling obliterated all their self-righteous pretense of caring about morality, legal principle, the Constitution or anything other than furthering the fundamentalist GOP agenda they were fast-tracked onto the court to boost. But no, said an aggrieved Barrett, they are "not a bunch of partisan hacks." As to their very presence at the Federalist fete, said one ethics expert, "The appearances are awful."
Equally awful, and unsurprising, is the key role of Alito, the "Patron Saint of Persecution Complexes," an "angry man" known to have only two modes: "sneering defiance" and "bleating indignation." Alito inhabits a world where white Christian men are under siege, anyone criticizing his beliefs is "bullying the court" or making him and his colleagues "targets for assassination," a black pastor who spoke up for his rights "threatened a race riot," he himself is free to play a rude, contemptuous, "nakedly unjudicial" buffoon in response to female colleagues, and the state's most vital task is punitive; in 2016, when SCOTUS rejected Florida's death penalty, only Alito dissented. So, a grotesque human being who likely kicks puppies in his free time, and who in a 1985 job application for Reagan's Justice Department pointedly declared, "I personally believe very strongly the Constitution does not protect a right to an abortion," though, again, the Constitution doesn't mention it. In a rabid 2020 speech to the Federalist Society blasted as "befitting a Trump rally," Alito raged about the threats posed by liberals - same-sex marriage and cakes for them, gun control and religious liberty as "second-tier" rights, COVID's "previously unimaginable restrictions on individual liberty" - and, oof, quoted Dylan: "It's not dark yet, but it's getting there." Most offensive is a brazen, disingenuous arrogance, from proclaiming, "Congress has no right to interfere with (our) work" to dismissing the impact of his Dobbs ruling on women. "We do not pretend to know" how they will respond, he intones, but regardless, we can't "let that knowledge influence our decision." Aka, fuck 'em.
Thus spoke a guy holding lifelong, unimaginable, unaccountable power that protects him from the consequences of his actions, no matter how devastating. The history of that power goes back to 1925, writes Linda Greenhouse, when Congress gave the Court the power to select cases it wanted to decide, thus transforming it from a "solver of disputes" to a creator of laws shaping both its own and the country's agenda - now, toward an agenda far to the right of most Americans. For the right, Dobbs is the product of a political project that goes back decades whose "one common aspiration (was) the capture of the Supreme Court" - and with it, the reversal of Roe. In a country where support for abortion rights has only grown over time, she notes, "Getting the Court was not simply the obvious choice; it was the only choice." Now, she writes, "The justices who make up the majority have nothing in their way - that is the nature of a supermajority. (They), or more accurately the forces that propelled them to the Court, have been waiting a long time for this moment." The Dobbs decision, says one Court scholar, "may be the most legitimacy-threatening decision since the 1930s." Along with other liberal judges, Justice Elena Kagan likewise argues the right-wing majority has broken the Court's historical bond with the public and "is abusing its power...they undermine their legitimacy when they stray into places where they're imposing their own personal preferences." "The Court has great power," she says, "but it seems to have lost any sense of its great responsibility."
And so we fight back. With Congressional action: Having arduously negotiated bipartisan support, Democrats shepherded through a Respect for Marriage Act to protect same-sex and interracial marriage under federal law, and yes we should recognize the insanity of a SCOTUS so extreme that Congress must act to protect interracial marriage from it even as one justice they're protecting it from is in an interracial marriage. Clear? We can still use the courts, sometimes. Affriming an appeals court ruling, the Supreme Court refused to halt a Jan. 6 subpoena for Arizona's GOP chair Kelli Ward's phone records to see if she'd been talking with insurrection fan-girl Ginni Thomas: "What an awkward coincidence - they should invent a phrase for that, something like 'conflict of interest.'" (The only dissents: Thomas and Alito.) And a judge in Georgia struck down the state's six-week abortion ban in a fiery decision trashing a "frothy" Dobbs ruling that "does not retroactively revoke the force or legitimacy of the decisions it overruled." Dobbs' authority "flows not from some mystical higher wisdom" or "its special insight into historical 'facts'” but from "basic math." Justice Thurgood Marshall: "Power, not reason, is the currency of this new Court's decisionmaking." Still, warns Elie Mystal, no illusions about "who these people are...They are trying to usher in a fundamentalist Christian theocracy and force the rest of us to live in it," and they will gladly destroy a federal law protecting abortion rights unless the political winds are blowing hard enough against them to hurt the GOP - or provoke an expanded Court. To make that political will known, stay loud. Our fave signs from protests: "Abort the Patriarchy" and "Ruth Sent Us." Per Raymond Carver's "A Small, Good Thing": She's not here to see this.
Abby Zimet has written CD's Further column since 2008. A longtime, award-winning journalist, she moved to the Maine woods in the early 70s, where she spent a dozen years building a house, hauling water and writing before moving to Portland. Having come of political age during the Vietnam War, she has long been involved in women's, labor, anti-war, social justice and refugee rights issues. Email: firstname.lastname@example.org