One thing you can say about the brutal Trump era: It’s made conservatives more frank about how eager they are to destroy liberalism and anyone protected by it. While some of the brethren tried, ineffectively, to conceal their glee at Wednesday’s retirement announcement by Supreme Court Justice Anthony Kennedy, many popped champagne at the imminent hope of realizing one of their life dreams: the repeal of Roe v. Wade and — who knows? — maybe other progressive legal decisions as well.
For decades there’s been a divide in the Republican Party between hardcore conservatives who seek to appoint only dedicated Roe assassins as SCOTUS justices, and go-along electeds who often put through less ferocious nominees. Most maddening for the hardcores has been that it seemed one could never tell who’d do what — the true believer Reagan, for example, put in Sandra Day O’Connor and Kennedy, while the alleged moderate George H.W. Bush gave us the fire-breathing, sexual-harassing Clarence Thomas.
Kennedy has written majority opinions in several cases that tilted the left’s way, such as Planned Parenthood v. Casey, which derailed the anti-Roe campaign at a key moment (though, as hardcore pro-lifers know, it also allowed red states to limit abortion rights); Lawrence v. Texas, which did away with sodomy laws; and Obergefell v. Hodges, the same-sex marriage decision. This has made Kennedy a wingnut hate object; Robert Bork, the lunatic Democrats blocked from the court in 1987, snarled in 2005 that Kennedy’s Lawrence decision was a “vaporing” that had not “the remotest basis in the actual Constitution,” and wingnut doyenne Phyllis Schlafly called for Kennedy to be impeached.
On Saturday the New York Times’ Ross Douthat echoed Bork, denouncing Kennedy’s Casey ruling as a “vapid Emersonian effusion,” and claiming that Kennedy’s rulings had been “imperial” (Douthat used the word six times) and “without a particularly coherent constitutional theory” — as proven by his decisions that Douthat disliked. Douthat also called Kennedy “the modern court’s most ‘neoliberal’ justice, embracing corporate freedom and sexual freedom as a kind of unity,” which is bad because “freedom of capital and genitals is not enough for human flourishing.” How d’ya like that for constitutionalism! I believe it’s from the Federalist No. 51.
So Kennedy’s announced departure has the brethren very excited; but, being aware of polls that show two-thirds of American citizens are against overturning Roe, the more mainstream ones sought to cool it down a bit.
Republican senator Lindsey Graham, for example, assured Chuck Todd that “one of the concepts that really means a lot in America is stare decisis — that means you don’t overturn precedent unless there’s a good reason.” His colleague Susan Collins said an anti-Roe justice would “not be acceptable” to her; but those of us who recall her maladroit defense of her tax bill vote as part of a deal to defend Obamacare stabilizers — which were then cut by the administration anyway — will not be comforted.
Former Bush speechwriter Michael Gerson wrote at the Washington Post that though the new SCOTUS would bring “weakening of Roe’s pro-choice absolutism” — see, it’s not reducing your rights, it’s rescuing you from absolutism! — “the availability of abortion has become a deeply entrenched social expectation,” so “a democratically determined outcome in most places would probably involve very few restrictions on early abortions.” This will certainly comfort the women of Mississippi, a state that currently holds the (soon-to-be-broken) record for shortest legal abortion window at fifteen weeks, and which has only a single abortion clinic. Think how they’ll benefit from their new freedom from absolutism.
But the really important thing, Gerson wrote, is that though Trump is “an economic illiterate…[and] an easily manipulated tyro” and his policies are “condemning Republicans to future defeat,” still, “when it comes to the choice of judges…Trump is firmly in the GOP mainstream.” The system works!
Even some hardcore wingnuts who frequently roar that Planned Parenthood is Zygote Auschwitz tried to act dainty about Roe’s demise. After all, soothed Alex Parker at RedState, it “wouldn’t do away with abortion; the decision would simply revert to the states.” Previously, Parker had referred to abortion as “the right to kill an unborn child,” and greeted the news of Kennedy’s retirement and the ensuing “possible review of abortion” with GIFs of high fives.
Inevitably Fox News brought it all back home: “Overturning Roe V Wade Is Being Used As A Scare Tactic By The Left To Block,” they headlined.
But everyone knows what the game is at this point: Trump’s basic deal with Republicans is clearly to fulfill all their wishes so they won’t impeach him, and to that end he has nominated judges approved by the ultra-right-wing Federalist Society — which returns the favor by speaking favorably of its brutish patron, and elsewise.
Also, while prior GOP presidents at least appeared to spare some thought for the long-term health of the Republic, Trump, to put it mildly, is only interested in personal enrichment and white supremacy. Being in addition, despite his marketing image and as proven by his presidency, a shitty dealmaker, he has a tendency to give away the store (so long as the assets are someone else’s) — as when, to use a particularly apposite example, he courted GOP voters in 2016 by declaring women who had abortions should be punished by law. (He backed off, presumably because of political considerations — but at present he has no reason to do so.)
Some conservatives surveyed the scene and dared to dream. At theocrat site First Things, R.R. Reno sang Glory Hallelujah: “The time has come to cleanse that stain and heal that wound,” he ululated. “Now is not the time for compromise or worries about breaking the peace that Roe has brought us. It was always a corrupt, immoral peace, which is not a peace worth preserving.” Helter Skelter, let’s fuck America up for Jesus!
“As Kennedy, blessedly, vacates his seat,” preached the Washington Examiner, “the central mandate for the man or woman who will take his seat, and for all the justices, is to wipe away a disgrace that ranks alongside Dred Scott, and overtun [sic] Roe and Casey.”
At HotAir, Allahpundit said conservatives needn’t give a shit what cautious trimmers think: “If ever there were an issue where public opinion is worth ignoring on moral grounds, this is it.” Anyway, he added, politics are not a problem because once Roe is overturned there’ll be a “cooling-off period in which Americans gradually acclimate to the new political reality,” especially once the birthing pens are set up.
At the Washington Examiner, Kimberly Ross said overturning Roe, nice as that may be, wouldn’t stop all abortions right away — which she meant not as a consolation to liberals but as a warning that there was more judicial and legislative harrying yet to accomplish. “This isn’t to say,” Ross wrote, “conservatives should not get excited” — imagine all the forced births you will get! — but “pro-lifers should not trick themselves into believing such a thing means our mission is accomplished. The fact that America has been saturated by a sickening abortion mantra for decades means our work to permanently shift the culture of death will have just begun.” The birthing pens can help there, too, as salutary examples as well as in their more immediate purpose.
And the end of Roe won’t be all conservatives want out of the court, either. At the Federalist, Nathanael Blake wrote last week that, while everyone thinks the fight over gay marriage is over and even “younger conservatives may wonder why we fought over this at all,” he wasn’t ready to quit: “As a matter of constitutional law, the Obergefell decision was indefensible…a fundamentally autocratic, anti-democratic decision,” he wrote. “Justice Anthony Kennedy led the majority in playing philosopher-kings, rather than being judges.”
But soon Kennedy would be gone. “Today, we stand on the precipice of undoing the monstrous injustice of Roe v. Wade,” prayed Michael Brown at TownHall. “Who’s to say we won’t live to see the reversal of Obgergefell [sic] vs. Hodges, the Supreme Court’s overreaching decision to redefine marriage?… Let’s pray for God’s mercy on our nation, for the continuing turning of hearts towards life, and for righteous justices to adjudicate in our courts.”
How far back would they reach to uproot prior progressive victories? Given the increasingly further-right leadership of their party, they may decide many other concepts we take for granted are also “absolutist” and “imperial”; aren’t affirmative action and integration of public schools, for example, unfair to racist Americans? Wouldn’t the “culture of death” be easier to defeat if contraception weren’t so easy to get? “We find ourselves at what seems a surreal moment in American history,” said anti-abortion group Catholic Vote; the main difference between them and most of America is, they think that’s a good thing. Buckle up, everyone, and check that your voter registration and passport are both up to date.