“The fall of Roe v. Wade will only embolden the fascists: How will America respond?”, “This decision signals that 'democratic norms' are gone, and old-style politics is useless. So what can we do?”, May 13, 2022, Chauncey DeVega, Salon, at < https://www.salon.com/2022/05/
And
“Republicans want Supreme Court demonstrators arrested. Is that legal?”, “The Justice Department has not yet signaled that it will be pursuing legal action against any of the protesters”, May 14, 2022, Jon Skolnik, Salon, at < https://www.salon.com/2022/05/
And
“Alito's False Call to Return the Issue of Abortion to 'The People' ”, May 12, 2022, Paul Blumenthal, Huffington Post, at < https://www.msn.com/en-us/
~~recommended by dmorista ~~
Introduction bt dmorista:
The pro-choice forces and the Left need to wake up to the facts that the Right-wing is conducting their political operations using totally different methods. The previous rules of a flawed, but more-or-less functional democracy, have been left in the dust. The first article, “The fall of Roe v. Wade will only embolden the fascists: How will America respond?”, points out that:
“The fall of Roe is a huge step forward in the much larger attack on human and civil rights in America by the Republican fascists, the "conservative" movement and the larger white right. … A decades-long attack on the American Dream and what remains of social democracy has also left many of us in a state of precarity, perpetual vulnerability and learned helplessness. People who are mired in negativity and feelings of despair can easily succumb to cynicism, distrust, religious extremism, conspiratorial thinking, anti-intellectualism and other unhealthy states of mind. These are the same emotions, thinking, and behaviors that nurture fascism and other forms of authoritarianism. … Cultural historian and media scholar Siva Vaidhyanathan offered a similar intervention, writing: 'I can't believe that there are people who have lived through the past six years in America who still believe we operate according to the democratic norms of the late 20th century. The rest of us are dealing with this full-on assault in the real world.' … The imminent end of Roe v. Wade will pose a great test for American democracy. Many Americans will certainly participate in marches and other protests when the Republican-controlled Supreme Court votes to overturn Roe v. Wade, very likely next month. … Inevitably, this mobilization for women's rights and freedoms will be met by a powerful counter-mobilization from the right-wing. Extreme violence by the latter is a definite possibility. … This plan has one huge problem: Democratic mobilization is all well and good, but today's Republicans and 'conservatives', and the larger white right do not believe in democracy and are actively seeking to destroy it.”
The second article, “Republicans want Supreme Court demonstrators arrested. Is that legal?”, notes that Arkansas Senator Tom Cotton said: “... that the protesters 'should be arrested for protesting in the homes of judges, jurors and prosecutors. … If [protesters] want to raise a First Amendment defense, they are free to do so.' ” He was joined by the Republican Governors of Virginia and Maryland, in recommending legal action against the young people who, peacefully and politely, assembled on public streets in front of the three justices' homes. All three of these Republican politicians were conspicuous in their lack of any comment of support for the various State Capitols surrounded by or entered in by heavily armed paramilitaries previously. The Governor, Attorney General, and Secretary of State, of Michigan, all had their homes surrounded by heavily armed paramilitaries who stayed through the night for several nights. These armed creeps trespassed on their yards and on the yards of neighbors all while carrying assault rifles (and who knows what other weapons secreted on their persons). And Gretchen Whitmer was the target of an abduction and Kanagaroo Court Trial after which the paramilitary plotters intended to kill her during a live internet video broadcast. Most of the plotters were merely slapped on their wrists and are back at large.
The second article goes on to use some twitter posts (that are worth taking a closer look at, btw), and other resources to analyze the likelihood that a conviction could be obtained by prosecuting the protesters. The analysis notes that the basic law was McCarthy Era legislation and that it was furthered by several court cases over the years. There is absolutely no chance that the protesters at Alitos, Kavanaghs, or Roberts homes could ever pressure them to change their votes. In fact it is clear that the real target of the protests are the media, the general public, and the Pro-Choice Movement itself. This does not bode well for actually convicting any protesters.
The last article, “Alito's False Call to Return the Issue of Abortion to 'The People' ”, exposes the perfidy of Alito's claim, that he wants the free exercise of democracy to occur in the states as a result of the overturning of Roe v. Wade, as the B.S. and lie that it actually is. Alito has consistently voted to reduce the access of political forces he disagrees with to political power and to enable their adherents access to the ballot. He has also voted consistently to provide more political power to the rich and the corporations that they own. These tactics and resources have resulted in shifts of around 10% - 15% in the State Legislatures in favor of the Amerikaner forces. The article points out using the example that in Wisconsin: “In 2012, Republicans won only 46% of the statewide vote in legislative elections, but took 60% of the seats in both chambers. The Wisconsin GOP again lost the statewide popular vote for Assembly elections in 2018, hitting just 45% of the vote, but took 65% of the seats. In election years when the GOP did win the statewide popular vote, it consistently took 10% more seats than the total popular vote percentage it won. Republicans need to win only 44%-45% of the statewide popular vote to gain control of the state Assembly … Democrats need to win 55%-56% to come close to securing a bare majority of seats. ... Similarly, Republicans won legislative majorities while losing the popular vote in Michigan, North Carolina, Pennsylvania and Virginia in 2018.”
The Left and the Pro-Choice adherents need to come to grips with the fact that our level of poliltical struggle has gotten more intense than used to be the case. 90% of the privately owned guns in the U.S. are in the hands of 10% of the population and they are overwhelmingly right wingers. If we don't begin to use more aggressive and wide-ranging tactics we will be subjected to a new dangerously violent and extremely virulent Fascist U.S.A. The main method open to us is to make sure that the rich funders of the right, and their corporations pay a very heavy economic price. If the price is heavy enough we will inevitably win, because the most important thing to them are their profits issues like Abortion are just window dressing.
The fall of Roe v. Wade will only embolden the fascists: How will America respond?
This decision signals that "democratic norms" are gone, and old-style politics is useless. So what can we do?
We warned the American people that electing Donald Trump would be a disaster. Unfortunately, too many Americans — from the political and media classes to everyday people — chose to ignore those warnings.
Our warnings were specific: Trump and his fake populist movement are a form of poison in the American body politic. Today's Republican Party and the larger "conservative" movement do not believe in democracy. They are authoritarians, trying to impose an apartheid Christian fascist plutocratic state on the American people.
If Trump were elected president, we warned, he would set into motion a series of events that would create an existential crisis for American democracy and society. He was mentally unwell, perhaps sociopathic. The civil rights and human rights of Black and brown people — and other vulnerable and marginalized groups — would be imperiled. Women's reproductive rights and freedoms, including the right to abortion enshrined in the Roe v. Wade decision, would be taken away.
All those predictions, and many others, have come true. At first, those of us who sounded the alarm about the coming American nightmare were called crazy, hyperbolic, reactionary or irrational. We were "haters," desperate for attention, who suffered from "Trump derangement syndrome."
We were the voices in the wilderness.
We were not selling wolf tickets. We were trying to save the American people by telling them the truth about the Age of Trump and American fascism and the nightmare that in many ways was already here and is now only getting worse.
As we now know from the draft Supreme Court opinion recently published by Politico, the end of Roe v. Wade is upon us, and abortion rights as a matter of constitutional law will no longer exist in the United States. The fall of Roe is a huge step forward in the much larger attack on human and civil rights in America by the Republican fascists, the "conservative" movement and the larger white right. Many Americans now find themselves trapped in the very nightmare whose existence they spent years denying.Sometimes the ground moves beneath our feet. That is true for both societies and individuals. The challenge then becomes how to reorient ourselves
How did well-intentioned people in America's political class, and ordinary citizens who believe in democracy, get this so wrong? How did they so greatly underestimate the danger of Trumpism?
"Normalcy bias," meaning the belief that because things have operated in a certain way for as long as many people can remember, explains much of this error. Intellectual laziness and a culture of distraction played a big role as well. Trumpism, like other forms of fascism, is nothing new. The answers (and the likely future) were visible for all who chose to look for them.
The American people are also exhausted from a pandemic that has now killed more than one million people in this country alone. A decades-long attack on the American Dream and what remains of social democracy has also left many of us in a state of precarity, perpetual vulnerability and learned helplessness. People who are mired in negativity and feelings of despair can easily succumb to cynicism, distrust, religious extremism, conspiratorial thinking, anti-intellectualism and other unhealthy states of mind. These are the same emotions, thinking, and behaviors that nurture fascism and other forms of authoritarianism.There is also the power of American myth, and our belief that we are an an "exceptional" nation, the "greatest" on Earth. According to that mythology, the American people are inherently good, and fascism and authoritarianism are problems that by definition can only exist elsewhere. Even in the wake of the Trump presidency, many Americans are still in denial about the fact that tens of millions of their fellow (white) citizens reject multiracial democracy and want to replace it with outright fascism or some other form of racial authoritarianism.
What about America's political elites? What about the "thought leaders" in the news media and the commentariat, who are paid to be expert interpreters of political events? How did they fail to see this nightmare emerging?
Want a daily wrap-up of all the news and commentary Salon has to offer? Subscribe to our morning newsletter, Crash Course.
Such people have a deep and abiding belief in "the system." To imagine that "the system" is failing is to call into question their own identities and futures relative to it. Few people want to reckon with their own obsolescence. At an even deeper level, many people who are part of that system reflexively resist confronting their own role in creating and worsening this disaster. A person who is associated with the "system" or the "establishment" is also very likely a person privileged by that system, whether because of skin color, gender, sexual orientation, wealth and income, residency status, lack of disability or something else. So for many members of the media and political elite, it is not possible to conceive of this American nightmare in general, or the end of Roe in particular, as something that is real, possible and personal. Those people find themselves in an altered world yet are still in denial about it. The cognitive dissonance borders on being pathological.
Author and Daily Beast writer Wajahat Ali recently described this state of denial on Twitter:
All of us — who were denounced as reactionary and alarmist by those paid incredible sums of money to be analysts and influencers — were right. That's the problem with the DC/NYC circle — it's a small, closed, often homogeneous group who only hang out with each other.
Cultural historian and media scholar Siva Vaidhyanathan offered a similar intervention, writing: "I can't believe that there are people who have lived through the past six years in America who still believe we operate according to the democratic norms of the late 20th century. The rest of us are dealing with this full-on assault in the real world."
At Mother Jones, Monika Bauerlein shared these insights about the power of denial among America's media class, writing that Republicans were pursuing "minority rule" and that "sugarcoating" that fact with polite words helps no one:
In fact, there's an argument that sugarcoating the abortion debate is part of what got us here. As the journalist Farai Chideya, who hosts the podcast Our Body Politic, wrote on Twitter, "Too many times I've been in newsrooms where a post-Roe and post-Voting Rights Act future was dismissed summarily as a possibility. So we as a profession created a dangerous filter bubble, dismissing individuals and groups as fringe when they were the tip of the spear."
In a democracy, the fourth estate is supposed to hold the powerful accountable in order to help the public make informed political decisions. In this context, the fourth estate are the harbor masters of democracy, helping to navigate ships through dangerous waters. But in the dark and turbulent waters of the Trump era, the harbor masters have become confused. They keep driving vessels onto the rocks. The wrecks are piling up, but the harbor masters insist their maps must be correct.
We have seen this repeatedly throughout the Age of Trump and beyond: The country's leading publications will shine a bright light on the Republican plot against democracy — but then, the next day or sometimes later on the same day, will pivot back to the very same both-sides coverage and horserace journalism that led to America's democracy crisis in the first place.
It is no wonder, then, that the American people are confused, angry and disoriented. The voices who are supposed to make complicated matters of politics and society clearer and more legible have utterly failed to fulfill their responsibility.
Many Americans will march in protest after Roe is overturned. Activist groups will mobilize supporters. Democrats will try to turn the outrage to their advantage. But there's a huge problem with that plan.
The imminent end of Roe v. Wade will pose a great test for American democracy. Many Americans will certainly participate in marches and other protests when the Republican-controlled Supreme Court votes to overturn Roe v. Wade, very likely next month. Civil society organizations are mobilizing their members and the larger public. The Democrats hope to use outrage over the Republican assault on reproductive rights and freedoms to mobilize their voters for the midterms and beyond. Organizations across the country are enacting plans to ensure that women and girls who choose to terminate their pregnancies can do so.
Inevitably, this mobilization for women's rights and freedoms will be met by a powerful counter-mobilization from the right-wing. Extreme violence by the latter is a definite possibility.
This plan has one huge problem: Democratic mobilization is all well and good, but today's Republicans and "conservatives", and the larger white right do not believe in democracy and are actively seeking to destroy it. The nullification of Roe v. Wade is a stark example of the tyranny of the minority: The Supreme Court's decision is widely unpopular and contrary to the common good. It also violates fundamental human rights and liberties and damages democracy.In a functioning democracy, public opinion is supposed to serve as a barometer and guide for elected officials and their policymaking. Marches, mobilization and social movements are forms of pressure on elected officials and other elites. But the Republican-fascist movement and other "conservatives" do not care about that. They are creating a political system that allows them to advance their agenda without being limited or otherwise restrained by public pressure or democratic will.
To wit. The reversal of Roe v. Wade is the work of two anti-majoritarian and anti-democratic political institutions, the U.S. Senate and the Supreme Court. To make matters even clearer, five of the nine current Supreme Court justices were nominated by Republican presidents who did not win the popular vote.
Three of those justices — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — were chosen by Donald Trump. He lost the popular vote twice, was impeached twice, attempted a coup and engaged in a long list of high crimes against American democracy and society. In practice, Trump is also a white supremacist, a fascist demagogue and a political cult leader.
As for the Senate, it disproportionately empowers smaller, largely rural "red" states over more populous, metropolitan "blue" states, where the vast majority of Americans live. The Republicans have also used the Senate filibuster to prevent the Democrats from passing major legislation, including popular measures to protect reproductive rights, voting rights and democracy in general.
To insulate themselves from public outrage about Roe v. Wade (and other unpopular policies) the Republicans use gerrymandering, vote rigging, voter intimidation, vote theft and other anti-democratic measures to restrict the voting rights of Black and brown Americans and other key Democratic constituencies.
Writing at Jacobin, Ben Beckett connects the impending Roe v. Wade decision to the larger Republican-fascist project, describing the current Supreme Court as the right's "most powerful weapon" in establishing rule "against the people":
While the Supreme Court is especially insulated from democracy and accountability, this authoritarian impulse has always been at the core of conservatism, and the Right has always had a tenuous relationship to democracy. Historically, it has only acceded to democratic demands kicking and screaming, and it has consistently tried to roll back democratic practices and revert power to unaccountable elites. ...
While the desire to overturn Roe v. Wade long precedes Donald Trump's presidency, Alito's decision is best understood in the context of the broader counter-democratic movement that has been picking up steam for the past seven years….
There is no reason to think this will get any better, or to expect another outcome when it comes to other important issues. ... There is a special sense of helplessness here. Anyone who pays even a little bit of attention to politics knows exactly what will happen, and knows that no one will stop it. The justices will surely continue to find reasons to strike down popular legislation and regulations that were enacted by "the people and their elected representatives," just as surely as they will find reasons to return questions of individual liberty, voting rights, and freedom of assembly and expression to state governments dominated by conservative extremists sure to restrict them. ... It's all just motivated reasoning for raw power: they're all for democracy, as long as they can first guarantee that they'll win.In a new essay for the New Republic, Katherine Stewart describes the impending reversal of Roe as "the direct consequence of the pact between the Republican Party and America's religious nationalists":
Tellingly, the authoritarian origins of the decision are written into the draft opinion itself, which ... will serve as a model and platform for advancing a wider assault on individual rights and American democracy for the benefit of a privileged few. Women of childbearing age are among the first victims of the authoritarian movement that brought us a radicalized Supreme Court. They won't be the last….
Depriving individuals of their rights is only half of the work of a court bent on paving the way for a Christian nationalist regime. The other half consists in dispensing privileges to favored groups….
Anyone who cares about the rights of individuals against tyranny should fight the court's apparent decision on abortion rights. But unless we make the fight about the takeover of the court itself — and unless it brings about the changes that this corrupted institution requires—the existential threat to American democracy will persist.
Political scientists and other researchers have shown that Congress is largely unresponsive to the policy demands of working class and poor people and instead takes its directives from the plutocrat class and large corporations. That is another important aspect of the new America Republicans and "conservatives" are trying to create: a fake democracy where it will be virtually impossible to defeat Republicans by electoral means.
Does that mean the American people should surrender to the fascists, or hunker down and wait out the storm? Of course not. They must go beyond thinking of democracy as a matter of voting every few years, donating to causes or candidates, attending protests or marches once or twice year, writing letters to elected official or "liking" and "sharing" a news item, petition or political meme online.Democracy is much more than those things. To defeat neofascism, the American people must come to understand democracy as a vocation and cultural practice. That means participating in local civic organizations and creating social change on an intimate, personal, community-based level.
This moment also demands a commitment to long-term struggle: winning back and protecting reproductive rights, voting rights and other essential aspects of democracy and freedom may well be a decades-long battle. Defeating the Republican-fascists and the larger white right will also require learning the lessons of the civil rights movement, the women's rights movement, the LGBTQ rights movement and other freedom struggles. Corporeal politics, including strikes, sustained protests, boycotts and other forms of civil disobedience, potentially on an unprecedented scale, may well be required to win back American democracy.
This American nightmare is not going away anytime soon. The Republican-fascist movement will only become more aggressive with the end of Roe v. Wade. It is winning, and can sense larger victories ahead.
Republicans want Supreme Court demonstrators arrested. Is that legal?
The Justice Department has not yet signaled that it will be pursuing legal action against any of the protesters
By JON SKOLNIK
PUBLISHED MAY 14, 2022 6:00AM (EDT)
Sen. Tom Cotton (R-AR) | Abortion-rights advocates mach in the street to stage a protest outside the house of Supreme Court Associate Justice Samuel Alito in the Fort Hunt neighborhood on Monday, May 9, 2022 in Alexandria, VA. (Photo illustration by Salon/Getty Imag
Hundreds of pro-choice demonstrators have gathered outside the homes of conservative Supreme Court Justices Samuel Alito, Brett Kavanaugh, and John Roberts since a draft decision reversing Roe v. Wade, the landmark 1973 decision affirming America's constitutional right to abortion, leaked. The protests – featuring signs, chants, and candle-lit vigils – have remained peaceful demonstrations. But while no threats or acts of violence have been reported in connection to these demonstrations, Republicans are already tarring them as immoral, illegal, and even terroristic, going so far as to call on the Justice Department to prosecute individuals.
On Wednesday, Sen. Tom Cotton, R-Ark., said that the protesters "should be arrested for protesting in the homes of judges, jurors and prosecutors."
RELATED: "Clean up your mess": Cops called to home of Sen. Susan Collins over chalk protest
"There is a federal law that prohibits the protesting of judges' homes," Cotton told NBC News. "Anybody protesting a judge's home should be arrested on the spot by federal law enforcement. If [protesters] want to raise a First Amendment defense, they are free to do so."
"The President may choose to characterize protests, riots, and incitements of violence as mere passion," Sen. Chuck Grassley, R-Iowa, echoed in a Wednesday letter to Attorney General Merrick Garland. "But these attempts to influence and intimidate members of the federal judiciary are an affront to judicial independence."
The Republican governors of both Virginia and Maryland, where the three justices' homes are located, have also joined the chorus, urging Garland to "provide appropriate resources to safeguard the justices and enforce the law as it is written."
Even some Democrats came forward to condemn the demonstrations, including most notably Sen. Dick Durbin, D-Ill., who this week went so far as to call the protests "reprehensible."
"Stay away from the homes and families of elected officials and members of the court," Durbin told CNN. "You can express yourself, exercise your First Amendment rights, but to go after them at their homes, to do anything of a threatening nature, certainly anything violent, is absolutely reprehensible."
RELATED: Virginia's GOP Gov. Glenn Youngkin hit by conservatives for failing to crack down on SCOTUS protests
To make their case, Republican pundits and politicians have for the most part hung their hat on an esoteric legal statute, first enacted in 1950, that makes it illegal to picket or parade "in or near a building or residence occupied or used by [a] judge, juror, witness, or court officer" with "the intent of influencing [that] judge." The statute, 18 U.S. Code § 1507, is seemingly designed to protect members of the judiciary from protests that might obstruct justice through fear or intimidation and was first enacted as part of the "Internal Security Act of 1950," a McCarthy-era law that sought to address fears that communism was creeping into the judiciary.Historically, the courts have hewed closely to laws that protect juries and justices from any outside political influences, as Law & Crime noted. Still, the legality of the protests remains something of an open question.
Alvin B. Tillery, Jr., an associate professor of political science at Northwestern University, told Salon that it's unlikely this week's demonstrations would be ruled illegal under 18 U.S. Code § 1507.
"I always have read [that statute] as 'impeding the officers ability to get to the court, or from the court to take part in proceedings' ... or terrorizing them with loudspeakers in front of their houses," he explained in an interview. "There's really no interpretation by which one could say that [the protests are] untoward or illegal in my understanding of the law and the Constitution and the history of protest in our country."
Anuj C. Desai, a professor of law at the University of Wisconsin, expressed a little more doubt, arguing that the statute could be applied. But still, he added, very little case law in the U.S. has actually ventured into the territory of the situation at hand.
"I think if [the protesters] did get prosecuted, there would be reasonable arguments about the interpretation of the statute that have not played out in the courts."
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One pertinent legal case, Desai said, is Cox v. Louisiana, a 1965 case in which the Supreme Court affirmed a state law that made picketing before a courthouse illegal. The case specifically centered on Benjamin Elton Cox, a civil rights activist who was convicted of disturbing the peace after organizing a thousands-strong march outside of a Baton Rouge courthouse. The facts around Cox v. Louisiana "were relatively sympathetic" for the protestors, DeSai said, "and the Supreme Court still said [Louisiana's statute] is carefully drawn."
Another past case that stands out, as The Washington Post notes, is Frisby v. Schultz, which stems from a 1988 picket organized in Brookfield, Wisconsin by two anti-abortion activists outside the home of an abortion doctor. Both activists claimed that a town ordinance banning the demonstration violated their First Amendment rights. Citing "a special benefit of the privacy all citizens enjoy within their own walls," the Supreme Court ultimately upheld the ordinance, arguing goals of the protests could be achieved through other means of communication.
"I do not believe that picketing for the sole purpose of imposing psychological harm on a family in the shelter of their home is constitutionally protected," wrote then-Justice John Paul Stevens, adding that there is "little justification for allowing them to remain in front of his home and repeat it over and over again simply to harm the doctor and his family."
Apart from local ordinances, like Wisconsin's, a judge might also consider state codes. This strategy could prove especially successful in Virginia and Maryland, both of whose criminal statutes put a strong emphasis on the preservation of the home as a place of tranquility.
"The practice of picketing before or about residences and dwelling places causes emotional disturbance and distress to the occupants," states the Maryland criminal code. "The purpose of this practice is to harass the occupants of the residences and dwelling places."
Virginia statutory law imposes a similar restriction: "Any person who shall engage in picketing before or about the residence or dwelling place of any individual, or who shall assemble with another person or persons in a manner which disrupts or threatens to disrupt any individual's right to tranquility in his home, shall be guilty of a Class 3 misdemeanor."
RELATED: Right-wing Twitter is obsessed with the Supreme Court leak — but there's a human cost
All a prosecutor would need to do, then, under Virginia or Maryland law is establish that the demonstrations disrupted the tranquility within Alito, Kavanaugh, or Roberts' homes.
But if prosecutors were to argue that the demonstrations violated 18 U.S. Code § 1507, they would have to establish that the protesters intended to distress these three justices – a task which would likely require a lot of heavy lifting, suggested Sheila Bedi, a clinical professor of law at Northwestern University.
"A prosecutor could look at things like notices of the protest, if there's any social media posts, but again, I think it's highly unlikely that anybody out there protesting really believes that Justice Alito is going to change his opinion as a result of the protests. And because of that, I think anybody who was charged under the statute would have a strong defense," Bedi said. "I think the reality is that the movement has known that this was a possibility for a long time because of the organizing that happened on the right. And this is about harnessing the political moment far more than it is about trying to influence the judges."
RELATED: Samuel Alito's use of ancient misogyny: SCOTUS rewinds to centuries-old common law for abortion ban
Desai likewise said that prosecutors would be bedeviled with "proof problems" relating to mens rea, or the state of mind protesters were in during the demonstrations. "This one just looks like it would be that aspect of it that would be hard to prove," Desai said.
Thus far, the Justice Department has not signaled that it will be pursuing legal action against any of the demonstrators, and there have been no arrests at this point. Department spokesperson Anthony Coley on Wednesday said that the agency "continues to be briefed on security matters related to the Supreme Court and Supreme Court justices.
Supreme Court Justice Samuel Alito wants you to think his decision to overturn Roe v. Wade is about restoring democracy.
The court’s 1973 Roe decision, in which justices voted 7-2 to legalize abortion nationwide, “short-circuited the democratic process by closing it to the large number of Americans who dissented in any respect from Roe,” Alito wrote in a draft opinion leaked to Politico. Overturning Roe would, therefore, “return the issue of abortion to the people and their elected representatives,” wrote Alito. Four other conservative justices are expected to join him.
Alito’s nod to democratic decision-making, however, rings false. Since taking his lifetime seat on the court in 2006, Alito has repeatedly sided against voting rights. He and his fellow conservative justices removed barriers to partisan gerrymandering that limits the ability of the people to elect representatives who reflect their priorities. He also backed decisions that gutted crucial voting rights protections for minority communities. And, in dissents he has written or joined, he backed even greater limitations on the ability of the people to choose their representatives.
These positions indicate a vision of democracy that hinders the people from even selecting representatives to decide issues that the court may be so valiantly returning to them.
He is not alone in holding these positions. Nearly all of the six conservative justices would prefer to further reduce voting rights protections and make it even harder for anyone to challenge partisan or racial gerrymanders.
In the 2019 Rucho v. Common Cause decision, Alito joined an opinion by Chief Justice John Roberts that closed the doors of federal courts to complaints of partisan gerrymandering. Alito also joined Roberts’ 2013 decision in Shelby County v. Holder that gutted the Voting Rights Act’s Section 5, which required states with a history of racial discrimination to get “preclearance” from the federal government for any changes to election laws and district maps.
As a result of these positions, Republicans at the state level have gained legislative majorities that greatly outpace their share of the popular vote statewide.
Take Wisconsin, where an 1849 law banning abortion would go into effect if the Supreme Court does ultimately overturn Roe v. Wade. Despite its swing state status, the state Assembly and state Senate district maps are so gerrymandered in favor of Republicans that it is practically impossible for Democrats to win control of either chamber.
In 2012, Republicans won only 46% of the statewide vote in legislative elections, but took 60% of the seats in both chambers. The Wisconsin GOP again lost the statewide popular vote for Assembly elections in 2018, hitting just 45% of the vote, but took 65% of the seats. In election years when the GOP did win the statewide popular vote, it consistently took 10% more seats than the total popular vote percentage it won.
Republicans need to win only 44%-45% of the statewide popular vote to gain control of the state Assembly, according to a report by five political science researchers at Binghamton University. That means Democrats need to win 55%-56% to come close to securing a bare majority of seats.
“Lots of election results are simply unlucky,” the researchers stated in a 2016 Washington Post op-ed. “This is not one of them.”
Similarly, Republicans won legislative majorities while losing the popular vote in Michigan, North Carolina, Pennsylvania and Virginia in 2018.
The latest round of redistricting is making the problem even worse, as new maps contain fewer competitive districts than ever before. This is an especially glaring problem in states with rapid population growth, particularly where that growth has been fueled almost entirely by racial minorities.
Look at Texas, where racial minorities accounted for 95% of the state’s population growth from 2010 to 2020, according to U.S. Census data. The state now features a population that is 39.8% white, 39.3% Latino, 11.8% Black and 5.4% Asian, but its new state legislative map heavily favors the state’s white residents. Sixty-five percent of the new map’s state legislative districts are majority white, while Latinos are in a majority in just 18.4% of districts despite their parity in the overall state population, according to The Texas Tribune.
In terms of partisanship, the new maps drawn by Republicans running the state government cement their majorities despite the state’s increasing competitiveness at the national level. The state legislative maps feature almost no competitive seats. Donald Trump won the most competitive state House seat by 7.9% in 2020. There are only four Democratic-held seats that statewide Democrats won by 5 percentage points or fewer. The new state Senate maps are even less competitive.
Samuel Alito’s False Call To The Issue Of Abortion To ‘The People’
Samuel Alito's False Call to Return The Issue of Abortion "to the People"
“Politicians have gotten so good at drawing political maps that they’re spoiling democracy,” the Tribune reported in a review of the Texas maps’ lack of competitiveness.
A similar dynamic is playing out in Georgia, where racial minorities now make up 48% of the statewide population while the non-Latino white population shrank from 59% in 2010 to 52% in 2020. The Black population in the state increased by 12.5%, the Latino population increased by 31.6%, and the Asian population increased by 52.3%, while the white population decreased by 4%. But the state Republicans’ map failed to provide enough new majority-minority seats to match the state’s minority population growth.
The Supreme Court has had a direct role in all of these maps. Prior to the court’s Shelby County decision in 2013, neither the Georgia nor the Texas state legislative maps would have gone into effect without being precleared for racial discrimination considerations by the Department of Justice or federal courts. But that decision, which pitted the five conservatives against the court’s then-four liberals, gutted the preclearance section and opened the door to the dilution of racial minorities’ political power that is happening in Georgia and Texas.
Civil and voting rights advocates are still challenging these and other maps under Section 2 of the Voting Rights Act, which still stands. It is unknown how the current Supreme Court will respond to such legal challenges, but the court has been hostile to voting rights laws for more than a decade now. The increased confidence in their positions that comes with a six-vote conservative supermajority should greatly worry voting rights advocates.
And while we may not know whether the court will further limit the ways voters can fairly select their own elected representatives, we do know the ways that Alito and other conservative justices would like to make it even harder for them to do so.
In the 2015 Arizona State Legislature v. Arizona Independent Redistricting Commission case, Alito and Justice Clarence Thomas joined a dissent written by Roberts that argued independent redistricting commissions created to draw competitive, nonpartisan district maps were unconstitutional. They were on the losing side then, but would probably be on the winning side today.
That’s because of the interest of at least four conservative justices in the independent state legislature doctrine. This dubious doctrine states the U.S. Constitution forbids any entity besides a state’s legislature from having any say on the matter of elections. This would not only make independent redistricting commissions unconstitutional, but it would also ban state courts from reviewing state election laws or district maps for any violations of a state’s constitution. The public would then have no way left to challenge the power of partisan state legislatures to draw their own districts. This position has the support of Alito, Thomas and Justice Neil Gorsuch, while Justice Brett Kavanaugh has stated that the court must take up a case on the issue.
These positions showcase the kind of democracy that Alito wants to “return the issue of abortion” to. It is one where the ability of voters to select their elected representatives is highly circumscribed in a seemingly irreversible manner. It is a democracy where racial minorities are not provided an equal right to representation.
If it overturns Roe, the court will not be returning the issue of abortion to “the people” writ large. Since the court draws its own lines around who “the people” may be ― the people who can actually access elected representation ― Alito and the conservative supermajority, secured by the three justices appointed by a president elected by a minority of the people, would be returning it to a people of their own design.
This article originally appeared on HuffPost and has been updated.
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