The Death of Stare Decisis and the Demise of the 4th Amendment

I was out of the country in May when news of the SCOTUS leak in which Justice Samuel Alito’s policy statement went viral.  I hadn’t watched TV for a week and barely signed onto social media but when I did, I read astute and deeply troubling reactions to the document designed to overturn Roe v. Wade, which has been considered established law for 50 years.

 

The document Justice Alito wrote was supported by four of his Court colleagues, revealing unsurprisingly that a majority of the Court concurred with ending women’s right to abortion. The timing of the leak was significant; it occurred when the Court was scheduled to rule on the constitutionality of a Mississippi abortion law which prohibits abortion after 15 weeks of pregnancy.

 

If the Court finds that the Mississippi law stands, it will have sanctioned ending Roe v. Wade, allowing states to make their own laws regarding abortion. Some states have already established Draconian laws that include charging women with murder if they miscarry or have an abortion. Some have ruled that physicians who perform abortions can be charged with a felony crime and some have set up vigilante laws that could affect anyone who helps a woman get an abortion.

 

Essentially the demise of the constitutional right to abortion up to 24 weeks of pregnancy will end women’s right to abortion in over half the states in this country. The implications are huge, not only for American women but for the future of the country, and they are abundantly clear.

 

Many analysts and pundits have written cogently and urgently about the legal, physical, economic and emotional consequences for women and others in this country, and for all of us with respect to our civil and human rights. As a women’s health educator and advocate I am all too familiar with those consequences. I have heard women’s testimonials, read their memoirs, listened to their stories.  I have helped them access abortion care and as a doula I have helped them give birth to much wanted babies.

 

After the Alito document was revealed (and during the last confirmation hearings) I thought about the great legal minds of the past who had served on the Supreme Court, Justices like Oliver Wendell Holmes, Jr., Thurgood Marshall, Ruth Bader Ginsburg among them. Now I mourn what has become of that institution, where several judges lied under oath to Congress regarding precedent, and where many are willing to ignore the Constitution’s 4th amendment right of Americans to be “secure in their persons” and to “not be violated or subjected to “unreasonable searches and seizures.”  

 

It pains and frightens me that faulty - some might say puerile logic - superficial, antiquated, cliched justifications, overt sexism, and religious ideology are blatantly on display. (It is worth noting that seven of the current justices are Catholic and no Protestants are on the bench).

Couple that with the less than stellar records and legal experience of several justices, the alleged sexual harassment conduct of two justices, the conflict of interest on the part of a justice whose wife actively supported the insurrection, along with the majority’s willing abrogation of civil and human rights and one can question where “liberty and justice for all” has gone.

 

How, I ask myself in these traumatic judgment days, has this largely trusted American institution so quickly deteriorated into depravity? How did its majority come to rely on bumper sticker taglines, social media tropes, and arguments so weak and sloppy that they wouldn’t pass muster in a law school? Where has compassionate consideration in difficult matters gone? Why have context, untoward consequences, and the reality of people’s lives disappeared?

 

The fact is the Supreme Court has become a political organization with its own dark agenda and its reputation will forever be tarnished, all because four men and one woman who should know better, appointed by a far right, self-serving autocrat, are now seated for life on the highest court in the land, along with several hundred inappropriate federal judges.

 

The price we’ll all pay for judicial travesties, individually and together, grows ever clearer and more threatening. If Roe v. Wade is overturned women’s lives will be destroyed. Precedent in other matters (gay and interracial marriage, LGBTG rights and more) will no longer be valid, and revision of laws that wreak havoc because of ignorance and a taste for punishment will return. 

 

It is no stretch to say that we will become an even more divided and dangerous nation, two-tiered and binary in ways that we can’t yet imagine. Violence is likely to flourish along with racism, anti-Semitism, sexism and increased marginalization. The elderly, young, disabled, and ill will suffer even more profoundly.  Murder charges, incarcerations and suicides will become commonplace. Poverty will prevail for those in the 99 percent, while corporations and billionaires flourish. Family structures will be deeply and sadly impacted. The earth will be at risk sooner than predicted. 

 

This is not solely about women’s rights, and it is not hyperbole. It’s a harbinger of what is to come because of laws we must live with, who makes and enforces those laws, who adjudicates disputes, what national priorities are established and by whom. It is about the future, which now is in the hands of the Supreme Court – a court plunged into decline that endangers us all. 

 

It’s a court that is beyond disappointing, a court with extraordinary power to shape our lives, and it grows ever more dangerous.

 

                                                            # # #

 

Elayne Clift writes about women, health, politics and social issues. www.elayne-clift.com

 

Staring at America's Dystopian Future

In 1940, Alice Duer Miller wrote a beautiful epic poem called “The White Cliffs.” An American who had married a British man just prior to World War I, she soon lost her husband serving a country that wasn’t hers. As she penned the poem, she faced the possibility of losing her son to World War II, again for a country not her own.  Yet, her last poetic lines are these: “I am American bred. I have seen much to hate here – much to forgive. But in a world where England is finished and dead, I do not wish to live.”

 

Imagine loving a country that is not your own so much.  Then consider not loving your own country anymore because it has dragged you into a very dark place, a place of fear and disillusion, a place growing more dystopian by the day.

 

In the space of just a few days, we have watched a Congressperson promise to shut down media organizations if they complied with legal subpoenas, we saw a state pass draconian laws that inhibit voting rights in dramatic, disturbing and undemocratic ways, and then we watched as that same state ignored the constitutional right to abortion granted to women in 1973. On top of that, the state, Texas, granted vigilante rights with financial incentives to any citizen who didn’t want to grant women that right.   

 

Just let the idea of private bounty hunters sink in. They might be husbands or boyfriends, angry neighbors, relatives, friends, pastors, people who think pregnancy by rape or incest is not so bad, folks who hate the idea of abortion but especially like the thought of a $10,000 reward. Some may be devout, but they are all devious and despicable. Over what ideologies might other states consider employing them?

 

Then came the most stunning blow of all in the form of the unbelievable and terrifying silence of an overwhelmingly conservative and politicized Supreme Court in the face of Texas’s deeply dangerous, and replicable law; a law so hideously and overtly fascist, a law wreaking with the stench of secret police in autocracies and dictatorships like those of Italy’s Mussolini, Romania’s Ceausescu, and today’s Vickor Orban in Hungary. How can any American not be sickened by that level of betrayal?

 

Justice Sonia Sotomayor, one of four dissenting justices, unleashed her fury and spoke for many of us in her minority opinion: “The court’s order is stunning,” she wrote. “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of justices have opted to bury their heads in the sand. The court has rewarded the state’s effort to delay federal review of a plainly unconstitutional statute, enacted in disregard of the court’s precedents, through procedural entanglements of the state’s own creation. The court should not be so content to ignore its constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and of the rule  of law.”

 

How, one must ask, does the court overrule fifty years of precedent – a value deeply held by conservatives - in its race to allow the invasion of women’s lives, a question former Representative Claire McCaskill asked in rage when commenting on MSNBC. How quickly will states rush to replicate this precedent?

 

In a statement that could have been more strongly supportive of women’s right to privacy and agency, President Biden warned that the nearly complete ban on abortion in Texas will cause “unconstitutional chaos.” It also begs the question, how will the Supreme Court rule on other cases that seek to curb abortion rights nationally?

 

While civil rights advocates sound alarm bells about worrisome implications for future laws, social justice and human rights opinion leaders like Michael Moore and others suggest the situation has reached crisis proportions such that terms like “conservative” and “evangelical” in reference to right wing radicals are no longer appropriate because they normalize groups that have essentially become America’s Taliban.

 

That term may be offensive to some, but in the face of an ever-growing political climate of oppression, exclusion and violence, and a Congress or Supreme Court that increasingly embraces ideas antithetical to democracy and proceeds to exercise the power to curb it, surely the time has come to recognize the imminent and very real threat before us.  That threat is nothing short of an undemocratic and dystopian future in which we join in the despair of so many others around the globe.

 

It’s a world in which we may still have a choice: To deny what is happening with frightening speed, or to ignore what is bearing down upon us, only to find ourselves back in Plato’s allegorical cave, in which we all sit staring at a blank wall, our backs to the light, believing that is simply the way we must live.

 

As Alice Duer Miller might have said, in such a world, where freedom and hope are finished and dead, I do not wish to live.

 

                                                                        # # #

 

Elayne Clift writes from Saxtons River, Vt.