The right-wing hacks finally won their years-long struggle to take over the Supreme Court. A Pyrrhic victory perhaps but one that will cause untold pain--in this case to poor women most of all. But turning back the clock was the theme of this latest bit of hypocrisy. As Maureen Dowd noted in a brilliant column Sunday [May 9, 2022], this was also the biggest victory for Puritanism since Massachusetts Bay colony expelled Roger Williams.
Laurence Tribe pointed out that few instances exist of justices changing their votes from their original position at the conference. Wordsmithing--yes. Little changes in wording that only a pedant would care about--yes. So we might as well recognize that in this case, the first draft will be the heart--if it had one--of this decision, when it finally emerges from its dank sewer to the light of day.
Needless to say, we have the two theories of why it was leaked. Only the Republicans want to make leaking the major issue. Anything rather than confront the real subject: the future of any liberties this court chooses to place outside the realm of protection. Formalism, it's called--a more accurate descriptor than originalism. One so-called scholar at the Bush I White House once told me how important formalism was. It just means designing a system of precepts that accomplishes whatever you want but dressed up as worthy of Aristotle or Aquinas.
I much prefer Groucho's perception of this: "I have principles. If you don't like them, I have other principles." The right says some leftist clerk did it; the left says that a conservative did it to lock in one of the fearsome five who might surrender to reason and reality. In the end, it takes down the image of the Supreme Court so that now all our major government institutions have been profaned.
Yes, Barrett, J., you are political hacks. Beginning with Scalia's perversion of history dressed up as the opinion in the Heller gun case, they have ignored real history and the real world. His other greatest crime was the Citizens United farce. Protect the free (paid, paid big-time) speech of corporations. Empower money even more as the governor of our politics. The late Justice Stevens, who had been a real lawyer, unlike all of them except the late Thurgood Marshall, wrote a magnificent dissent that charted the true history of gun rights and the 2nd Amendment. Scalia was a windbag of a fraud. A so-called law school across the river in Virginia named itself after him--excuse me, its reactionary dean at the behest of himself and the major donors named it after him.
This sordid episode has put paid to the mystique of the Supreme Court. They are as close to being priests of the law as the high priest Ramfis and his bald-pated crew were in Aida. RBG turned out to be a decent judge but like most of them, her ego got in the way so she wouldn't leave even after she had fought off cancer on numerous occasions.
The court has been reactionary for most of its existence. Dred Scott, Plessey v. Ferguson, Lochner v. New York--the list of atrocities goes on. Nobody except pedants today remembers the four horsemen: Van Devanter, Butler, Sutherland and McReynolds. The last--McReynolds--was a total bigot who wouldn't sign the message of condolence on the death of Brandeis.
But we do remember the first John Marshall Harlan and not all the rest on the winning side in Plessey. His descendant of the same name was a mostly principled conservative. You don't get any of them anymore. You get a guy like Alito who could never grow out of his cloistered background, and that was before Princeton and Yale Law. Kavanaugh regaling the Senators with his love of beer guzzling. Gorsuch, out of a family that produced his mother, who tried to murder the EPA. Thomas, for whom Biden to his everlasting shame allowed the GOP to run rings around him and let them trash Anita Hill, only telling the truth about his weirdness. Barrett, proclaiming she isn't a hack, the surest indication that that's exactly what she is.
Lawyers understood when the unholy Trump trio dissembled about their regard for Roe v. Wade. The general public and most of the media took their b.s. at face value; lawyers know about weasel-wording: they never directly said they wouldn't trash Roe. The Democrats always ignored the importance of Supreme Court nominations and now they suffer the consequences. It is nothing but a nest of hacks and right-wing nut cases. At least no one should have any illusions any more.
