NEW YORK — Well, why should we be surprised? Who on God’s green earth did not expect — given the ideology and origins of the majority of justices on the United States Supreme Court — that it would, at its first opportunity, vote to end a woman’s right to abortion? Do you think this just fell from the sky?
It didn’t. The decision — a draft of which was leaked Monday, confirmed Tuesday and will be issued in June, perhaps in different words with the same effect — has been a generation in the making. It is a triumph of the conservative movement that never supported Roe v. Wade, the judgement that established a woman’s right to abortion in 1973, and has denied it ever since.
One by one, judge by judge, social conservatives put in place the majority that will, this time, reverse the decision. First came Justice Clarence Thomas, appointed by George H. W. Bush; Samuel Alito, appointed by George W. Bush; then Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, appointed by Donald Trump.
Conservatives cheered their nominations, if not proposed them, knowing that one day they would get their wish. They were aided by Republicans in the Senate happy to deny a Democratic president (Barack Obama) his opportunity to fill a vacancy, and later to jam through another nomination (Barrett) days before a general election that ousted a Republican (Trump).
Of course, when asked about abortion, those nominees said they would not touch precedent. They persuaded moderate Republican senators who supported abortion that it was safe to put them on the bench.
The most gullible was Susan Collins of Maine, who was under pressure in 2018 to oppose Kavanaugh. She voted for him. She believed that Kavanaugh would not overturn the abortion ruling because, after all, he’d told her “many times” the decision was settled law. She said the same about Neil Gorsuch.
We don’t know with certainty whether Gorsuch and Kavanaugh will rescind the right, but we certainly assume they will vote with their conservative colleagues.
Poor Collins, as naïve as her critics said, who got up on her low horse Tuesday and said, gee, if the draft ruling stands, it would “be completely inconsistent” with what they told her personally in her office and in the hearings.
Well, yes, it would be, but it would reflect their judicial philosophy, which is the reason they were appointed by Trump, applauded lustily by the Federalist Society and opposed mightily by Democrats and pro-choice women’s groups. All knew what Collins did not.
Now we know the old rules no longer apply. A high court of the United States no longer seeks consensus, or honours precedent or a half-century of law. It ends a constitutional right with a leak — and a shrug.
A president rejects the results of a democratic election and foments an insurrection and walks away unpunished. He is twice impeached and twice acquitted. Senate Republicans eviscerate a black jurist of impeccable credentials, turning her nomination for the Supreme Court into a circus. Their unhinged cousins in the House of Representatives attack America’s support for Ukraine.
All this is tolerated. All is normal. Meanwhile, Republicans in the states put in place the people and rules to overturn the vote in 2024, beginning with the mid-term elections in 2022. Trump awaits, America’s strong man, vowing to make Joe Biden’s presidency an interregnum. (His man, author J.D. Vance, who wants to fire federal bureaucrats and replace them with Trump acolytes, won the GOP nomination Tuesday and is likely to be the new senator from Ohio.)
It may be that ending abortion will send angry women into the streets. It may be that this is the moment a somnolent people sees the threat from a reactionary court, which may now undo contraception and same-sex rights. When Americans understand minority rule is creating an autocracy. It can happen here.
Maybe. If so, and there really is a struggle of values between red and blue states, then the end of legal abortion this spring will be seen as the Fort Sumter of America’s new civil war.
Andrew Cohen is a journalist, a professor at Carleton University and author of Two Days in June: John F. Kennedy and the 48 Hours That Made History.