Liars for a Lifetime
The draft opinion rejecting a women's right to choose and banning abortion lays bare the ugly truth of Supreme Court justices who pretended they would not overturn Roe v. Wade
I don’t like liars. I don’t like them when they’re elected to political office. And I surely don’t like them when they lie to land a lifetime appointment on the Supreme Court.
Yes, there’s come to be an old song and dance that Supreme Court nominees perform—Senators ask direct questions about world-altering legal precedents like Roe v. Wade and the nominees deliver clever answers meant to convey their respect for that precedent without ever saying what they really think. That’s the performance that we’re all supposed to just gloss over or accept as the reality of “how it is.”
In 2006, Amy Coney Barrett signed her name to a published ad from an anti-abortion group that has urged “an end to the barbaric legacy of Roe v. Wade and restore laws that protect the lives of unborn children.” Yet when questioned during her confirmation hearing last year, just before the 2020 election, she insisted, “I don’t have an agenda.” Earlier, when seeking a seat on the Court of Appeals, she claimed, “It is never appropriate for a judge to impose that judge's personal convictions whether they derive from faith or anywhere else.”
As for Brett Kavanaugh, when he wasn’t expressing his love for beer, shouting at US Senators or denying assault charges, he was asserting that Roe was “settled as a precedent” because it has been “reaffirmed many times over the past 45 years.” He got back-up from Maine Sen. Susan Collins, who committed to vote for him after a private meeting in which he told her that Roe is “settled law.”
And then there’s Neil Gorsuch, the first of the Trump nominees who was questioned about constitutional protections like abortion and marriage. “I have never expressed personal views as a judge on this subject,” he smugly insisted, “and that is because my personal views do not matter.” (Sen. Collins also was assured by Gorsuch in private about his principled commitment to precedent—and voted for him.)
So smooth. So self-assured. So comfortable lying about the truth of their convictions and their intentions once the opportunity arose.
Now we’re about to see the painful consequences of a world where liars lie and—despite the fact that 70 percent of Americans support abortion and reproductive rights—we all are expected to just take it. Of course, liars lie, what else would you expect? Aren’t we all just supposed to go along with the con artistry of the confirmation process, which after all is a job interview leading to a lifetime appointment on the highest court in the land?
But imagine if you were answering questions in a job interview and lied. Would you expect to get the job anyway? Well, probably you would, if you, the interviewer and the hiring committee were all in on the scam. Even though I have zero belief that the job applicants who lied under oath to attain a seat on the Supreme Court will ever face perjury charges, it’s worth noting that the sentence for conviction can be imprisonment for up to five years.
With the seismic leaked release on Monday of the draft opinion written by Justice Samuel Alito and the likely demise of Roe v. Wade as the precedent of precedents, the settled law of the land, the domino effect will be terrifyingly quick: Thirteen state laws will be triggered to ban abortions almost immediately and another 14 states are prepared to follow suit soon after.
Even as people across the country brace for the imposition of policies that will lead to unwanted pregnancies, unwanted babies and an increase of pregnancy-related deaths, we can anticipate that this rejection of reproductive and privacy rights opens the door to the possible end of same sex marriage and the sale of contraception.
We can cross our fingers that somehow this draft opinion will be softened and will not earn the support of the majority when the final opinion sees the light of day later this summer. My speculation: Fat chance.
Despite all the clever side-stepping and bald-faced lies to get a seat on the Court, we have every reason to suspect that the majority will join Alito’s opinion, which called Roe “egregiously wrong,” asserted that abortion is not a protected right because “the Constitution makes no reference to abortion,” and contended that the 14th amendment’s due process clause protecting liberty must be “deeply rooted” in America’s “history and tradition.” He might as well have written that women should not have the right to decide whether to continue a pregnancy and states should be given the power to impose their morality, whatever the circumstances (including rape and incest), whatever the dangers for the mother or child in being forced to carry the fetus to term.
For Republicans and most of the Court itself, the high crime here is the leaked opinion. For everyone who cares about the legitimacy of the Court—and that includes Americans from across the political spectrum—this unprecedented act further undermines the credibility of the Court and accelerates the view that this is a body riven by politics and partisanship. But I find it more than a little rich that Chief Justice John Roberts—who has ordered an investigation—is greatly aggrieved by the leak but publicly blithe toward the role of Ginni Thomas in attempting to overthrow the government and her husband, Justice Clarence Thomas, subsequently voting to block the release of documents related to the January 6 Capitol attack and coup attempt.
Talk of the leak and, for that matter, talk of the Court’s credibility is not the highest priority for the millions and millions of Americans confronted with this gut punch that rips away women’s right to choose, turns back the clock, introduces even more pain and fear into the body politic, and expands and intensifies inequity for the most vulnerable among us. But for at least this Court watcher, it’s hard not to see this likely decision as the worst expression of the theocratic push by a majority of justices indifferent to the will and needs of the people.
One last note:
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