In Dobbs v. Jackson Women's Health Organization an illegitimate, radical, rightwing court overturned half a century of settled law established by Roe v. Wade to advance a political agenda.
But why do I refer to the current US Supreme Court as illegitimate and not just conservative? Am I just crying foul because I don’t like the outcome? You would be right to assert I don’t like the outcome.
You don't have to be a woman to take this decision personally. The idea that the state has the right to force you to endure an unwanted, unplanned pregnancy goes back to the days of slavery. Our bodies were the property of the slave owners, forced to work, and forced to reproduce, just to increase the wealth and property of the state.
We had no choice in the matter then. And the rightwing is telling women they ought not to have a choice in the matter now. The decision to have a child or not, and the ability to control our bodies, should not be delegated to the state.
Many people took issue with the state telling them to wear a mask to slow the spread of a fatal disease as an attack on personal sovereignty. For the sake of consistency, I hope those people are also taking exception with the state demanding control of women's bodies.
But let me set aside my feelings on the issue of abortion rights and return to this question of the illegitimacy of the Supreme Court, as the consequences of this go far beyond any single ruling the court issues.
I don’t believe I, nor anyone else, nor any group has to always win to have a legitimate democracy. In fact, if the same group always won that would not be a democracy. The drafters of the federalist papers understood that as they worried about a permanent minority.
Nevermind they were not including women or Blacks or Native Americans in the early formulation of the country. We have generally expanded who is to be counted in our history and protected by our Constitution.
Dobbs takes a radical step backwards to exclusion and othering instead of inclusion and belonging. There are rules and norms for how institutions and people are to engage with each other.
Sometimes these norms themselves need to be re-evaluated, but re-evaluation is not the same as disregarding and breaking the rules for the purpose of one side getting its way. We have a term for that: it's called a power grab. And it renders you illegitimate.
This is how the current Supreme Court should be viewed. I believe there are serious structural problems to how justices are selected and how the court itself operates. But that is not my point here.
In our system, the constitutional requirement is that the president shall nominate the justice, and the justice is to be confirmed with the consent and advice of the Senate. There have been a set of practices set up to operationalize this rule.
When President Obama nominated the moderate then-jurist Merrick Garland to the Supreme Court, Senator Mitch McConnell did not just object, he refused to even consider the nomination.
The reason was not related to Garland’s record. He had received bipartisan support for other offices he held. In fact, many liberals objected to Garland's nomination on the grounds he was too moderate.
But that was not the reason given by McConnell. Instead, he asserted that there would be an election for the presidency within a year and we should wait until after the election to fill the seat.
It was clear that McConnell was hoping for a Republican victory in the election. His wish was granted when Donald Trump won the 2016 election thereby giving him the right to nominate a justice to fill the vacancy left by the death of Justice Scalia.
Trump had promised his base he would appoint justices to overturn Roe. He nominated Neil Gorsuch, who now makes up part of the court's rightwing majority. Then came the unforgettable hearings of Trump's next pick for the court, Brett Kavanaugh, an accused sexual assailant.
And in the final months of Trump's tenure as president, Justice Ginsberg died. Given that Trump was in the waning weeks of his tenure and that McConnell was still the majority leader, one might expect him to refuse to hold hearings on the appointment of Amy Coney Barrett. Again, for consistency's sake.
But now, McConnell rushed to get Barrett confirmed, in part because of her strong views against abortion and the rights of minorities.
She was confirmed less than two weeks before the election of Joe Biden as president. Because of these illegitimate acts, Trump got not one, but three appointees to the court. He is now crowing to his base that he delivered on his promise to appoint justices who would overturn the rights of women to control their bodies.
These are political appointees who do not feel bound by precedent they do not like, nor by the judicial process. Trump, the only president impeached twice, now casts a shadow over many rights, from the right to control one’s body, to the right to vote, and many others.
Disturbingly, Justice Clarence Thomas wrote that in light of the Dobbs decision, other cases on gay rights and the rights to contraception, an even older precedent, may need to be reconsidered. There will be a number of legal discussions about states' rights which, by the way, were changed by the amendments to the Constitution after the Civil War.
When rightwing hacks talk about the Constitution they conveniently forget the 13th, 14th and 15th amendments. They would have us hark back to when the Constitution afforded the state the right to control peoples’ bodies.
Legal scholars will debate these issues. I will raise them in my advanced civil rights class this fall. But we should be clear, they are political and power questions. These are questions of legitimacy.
If we, and by we I mean all of us, are to restore some semblance of our constitutional republic, we cannot be silent as we witness the planned and organized takeover of our court and our country.
Even those who were pleased with the outcome of this decision based on their own moral or religious convictions should be concerned about how this court came to power if they believe in democracy and the American experiment.
In a democracy we need to recognize that we're not all going to share the same perspectives on issues as divisive as abortion. As director of an institute which is always seeking opportunities to bridge, I would invite dialogue between people and groups who may view Roe differently, but agree on a goal to uphold democratic processes and institutions.
Last week we lost Roe. But if we lose those democratic institutions, we may then lose our rights to contraception. We'll lose our voting rights and civil rights. And corporations will only gain more power, as our own power and protections vanish.
Again, when we bridge and build diverse coalitions, not all of us are going to agree on every aspect of each of these issues. But at the fundamental level I am hopeful that most of us can agree that a takeover of the country and our courts by a clan of ideologues with narrow political and economic agendas must be reversed.
We must put the court on trial. And we must pursue a democracy where all members belong.
Editor's note: The ideas expressed in this blog post are not necessarily those of the Othering & Belonging Institute or UC Berkeley, but belong to the author.
