The Cruelty of the Court

It is done: the right to reproductive choice in the United States is no more; Roe v. Wade has been destroyed.

How was it done? By exploiting anti-democratic processes like the filibuster; by improperly blocking the legitimate appointments of nominees made by Democratic presidents; by ramming through dishonest, unqualified, and dangerous nominations themselves; and by ruthlessly exploiting the naiveté (willful naiveté, perhaps) of “pro-choice” Republican Senators.

Justice Samuel Alito’s opinion published today is disgraceful not just because its reasoning–on history, on autonomy, on precedent–is misguided but because it so clearly reveals the fundamental dishonesty of the Justices rammed through in the Trump years: Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Asked repeatedly about Roe, all three—protected by GOP Senators–juked, ducked, and avoided answering questions. Asked about the importance of precedent, all three deployed oily formulations about the weight of stare decisis and mouthed platitudes about the settled law. What they meant, of course, was only that law is settled until it is unsettled.

And, indeed, this majority opinion, written by the odious Alito, makes precisely that point. After once again sanctimoniously celebrating precedent (“Stare decisis plays an important role and protects the interests of those who have taken action in reliance on a past decision”), Alito delivers the lethal, inevitable, blow: “But stare decisis is not an inexorable command.”

The injury here is real: women will die because of this decision. What adds insult to real injury is the precedent Alito cites to make the point that precedent isn’t binding: Brown v Board of Education, “overruling the infamous decision in Plessy v. Ferguson.” This is a monstrous citation: this Court’s hard-right majority has been more hostile to civil rights and the voting rights of African Americans than any court since the 1940s. To cite Brown while eviscerating not just reproductive rights but privacy rights in general drips with the hateful laughter of deep and bitter cynicism.

This majority goes out of its way to taunt those whose rights it delights in destroying. Two days ago, in its equally awful firearms case (New York State Rifle & Pistol Association, Inc.,et al., v. Bruen), Clarence Thomas cited Chief Justice Taney’s infamous Dred Scott opinion in support of the unlimited right to carry firearms. These citations are not accidental; they are deliberate, sadistic provocations. Courts are meant to settle dispute; the aim of this Court’s majority is to humiliate, taunt, and injure those who do not fall into line. It is authoritarian, anti-democratic, self-important–and, above all, cruel.