It gives me no joy to say that my prediction in April that the Supreme Court was set to launch a war on modern America – on its social and legal progress over decades – was accurate.
In a tone more reminiscent of a MAGA rally than a high court, the majority Dobbs v Jackson Women’s Health Organisation opinion overturning the right to abortion drips with disdain for women’s concerns about personal autonomy and for the principle of stare decisis – the doctrine that courts will adhere to precedent in making their decisions.
As bad as this particular opinion is, the broader picture is about much more than abortion.
The right-wing court wants to lock 21st-century America into the Founding Fathers’ world or, at the latest, the late 19th century.
Women, minorities, gay people and others once had little political, economic or social power. And they will again, if the court gets its way.
Look carefully at the court’s language hopscotching through history. “Until the latter part of the 20th century, such a right [to abortion] was entirely unknown in American law,” the opinion proclaims. The past 50 years when Roe v Wade followed a line of previous cases concerning personal autonomy (“privacy”) don’t count.
The court insists that our rights under the 14th Amendment were fixed in 1868. We therefore get a perverse result, as the dissenting argument explains: “Because laws in 1868 deprived women of any control over their bodies, the majority approves states doing so today."
Women were denied lots of rights in 1868. Gay people and minor children had no rights to speak of, nor did the physically or mentally disabled.
This court declares we are stuck with the precise state of the law pre-civil rights, pre-women’s rights, pre-modern. The notion that liberty and equality are ever expanding is kaput. The moral universe is bending backward.
How radical is this? Well, Justice Clarence Thomas provided the answer by arguing in his concurring opinion that the court should reconsider rights going well beyond abortion. So it’s not right to say “Roe is on the ballot” in November. The 21st century is on the ballot.
Republicans at all levels of government cheered the decision.
This is a party of radicalism, of contempt for the modern America in which white males do not get to make all the rules.
And it’s going to get worse. Wait until the court considers a North Carolina case that state legislatures can pull off their own coups by reversing the popular vote of the people for president if it does not suit the lawmakers.
Are we doomed to board the Republicans’ time machine back to the 19th century? Certainly not.
First, Congress can act to secure all the rights that Thomas identified for the chopping block. Let Republicans filibuster protection for abortion, for contraception and for interracial and same-sex marriage.
And if they do, then voters can send Democrats with sufficient fortitude to modify the filibuster to protect their fundamental rights.
Second, since the Supreme Court is sending the most personal, intimate decisions to state legislatures and governors as well as local district attorneys and judges, those desiring a constitutional regime for the 21st century must fill every one of those offices with people who respect basic rights.
The 21st century vs the 19th century becomes the issue in every election.