One year ago today, Senate Republicans confirmed the poorly qualified, ideological extremist Amy Coney Barrett to the U.S. Supreme Court. They did so eight days before the election, when 65 million people had already voted. After 2016, another election year, they did so by blocking President Obama’s pick Merrick Garland, who was nominated eight months before the election.
As Stephen Wolf stressed, she joined five other conservative justices “confirmed by senates with Republican majorities that represented fewer Americans than their corresponding Democratic minorities.” Three of them—including herself, Neil Gorsuch, and Brett Kavanaugh—were nominated by a president who lost the popular vote. As he also points out, two other conservatives—John Roberts and Samuel Alito—were nominated by a president who lost the popular vote the first time around and only got to be president because Justice Sandra Day O’Connor wanted George W. Bush appointing judges instead of Al Gore.
Thus, the highest court in the land operates under minority rule, and it is using that rule as a cudgel now that Barrett has tipped the balance. The court, in the shadow docket, silently allowed Texas to ban abortion by refusing to stop the law from going into effect, then made it official, stating explicitly that they were doing so, but in a single unsigned paragraph. The court had another opportunity to stop this blatantly unconstitutional law from continuing last week when it scheduled a “rocket docket” hearing for two challenges to the law for Nov. 1.
Instead of blocking the law from being enforced, as is certainly commonplace in issues pending before it, the conservatives are letting it continue, and hundreds of Texans are suffering. Amy Hagstrom Miller, founder and CEO of Whole Woman’s Health and Whole Woman’s Health Alliance, one of the state’s largest provider networks, pointed out the obvious. “Lack of access to safe abortion care is harming our families and communities and will have lasting effects on Texas for decades to come,” she said. Her clinic has “had to turn hundreds of patients away since this ban took effect, and this ruling means we’ll have to keep denying patients the abortion care that they need and deserve.”
It’s almost as though the court’s conservatives were in cahoots with the Texas forced birthers who wrote this law. As SCOTUSblog’s Mary Ziegler points out, “The court signed off on a law that its framers described as an attempt to circumvent rights recognized by the federal judiciary. More remarkably still, the court treated S.B. 8 as a matter of no great urgency.” All of this certainly bodes poorly for the fate of abortion rights with this court. They are purposefully standing aside while Texas denies its citizens their constitutional right to have an abortion, giving a wink to the state’s legal trick of relying on private citizens to enforce the law puts it out of the jurisdiction of the courts.
That’s one of the questions the court will be asked to decide in the challenge from abortion providers. They asked the justices to determine “whether a state can insulate from federal-court review a law that prohibits the exercise of a constitutional right” by delegating enforcement to private citizens.” That’s a bit risky. If the court signs off, you see immediate copy-cat laws all over red America. But it’s also tricky for the justices; if they rule with Texas, there goes another big chunk of their legitimacy. Not to mention throwing the idea of the Constitution’s supremacy in establishing the rights of all the people of the United States.
That’s in part the question the Department of Justice is also posing to the court, whether “S.B. 8 interferes with its sovereign interest in ensuring that states recognize federal constitutional rights.” The case from DOJ “also argued that the law raises preemption concerns by threatening the work of federal agencies, employees, and contractors who might offer abortion services.” The court will have to answer whether the U.S. may sue the state of Texas, “state officials,” and “private parties” to “prohibit S.B. 8 from being enforced.”
The Texas case isn’t the only abortion decision facing the court. In December, it will hear a challenge from Mississippi to ban abortion after 15 weeks of pregnancy, well before the fetal viability standard established in Roe v. Wade. It will do so after hearing from more than 800 individual scientists and several scientific organizations about their research into the impact of abortion on people’s lives, welfare, careers, and families, rebutting claims put before the court about the harm the procedure does to patients. “This is a coalition of folks who have spent their working lives looking at objective measures of maternal and child health and who read Mississippi’s court filings, as well as those in favor of its argument, and said, ‘These claims are not at all supported by the data.’” says Rosie Griffin, an attorney at the law firm Feldesman Tucker Leifer Fidell in Washington DC. Her firm filed an amicus brief signed by “550 researchers in public-health, reproductive-health, and health policy, along with the American Public Health Association and two research institutes.”
These cases give Amy Coney Barrett, in particular, the opportunity to prove that she deserves a seat on the highest court in the land, that she’s not there because she’s a “partisan hack.” That’s a label she tried to refute last month in a speech. A speech at the McConnell Center at the University of Louisville. As in Mitch McConnell. “My goal today is to convince you that this court is not comprised of a bunch of partisan hacks,” she said, as partisan hack McConnell watched, gloating, at her side.
That would be the same McConnell who appeared at a Heritage Foundation event honoring Justice Clarence Thomas for his forced birth credentials. McConnell called the partisan hack Thomas a “legal titan” who has proven that through his “jurisprudence on unborn life.”
“Every time without fail, Justice Thomas writes a separate, concise opinion to cut through the 50-year tangle of made-up tests and shifting standards and calmly reminds everybody that the whole house of cards lacks a constitutional foundation,” McConnell said. That’s McConnell saying that the “4th, 14th, 9th, and if you don’t like all those, then the 13th” Amendments of the Constitution don’t apply to people who can get pregnant. (By all means, watch the incomparable Elie Mystal take on the forced birthers on C-SPAN, and detail all how our right to choose what happens to our bodies is indeed in the Constitution.)
The court is packed with partisan hacks, put there by McConnell and Trump—popular vote losers. They are the minority; they are hacks. If President Joe Biden and the Democratic Congress don’t do something about it, the nation will soon be subject to their minority rule for generations.