If this decision succeeds in removing rights — like Dred Scott and Plessy did — history tells us the turning of events will still be toward progress. But how many women will die in the process?
Sam Alito and his buddies may think they’re winning, but, if its any consolation, they’re on the wrong side of history and will ultimately lose.
The history of democracy moves forward, then is jerked back by reactionary forces, then moves forward again: it’s been going that way since ancient Greece.
The leaked SCOTUS decision on abortion isn’t a singular and lonely stream of misplaced misogyny; instead, it’s part of a larger river of political efforts to turn the clock back to a bygone era when straight wealthy white men ruled everybody else with absolute, unquestioned power.
This is almost never mentioned out-loud or in mainstream media; instead, its reality is lost in the tennis-like back-and-forth of journalism and opinion writing that treats politics as if it were simply another form of sports.
“This team won this season; next season another team will win” goes the rhetoric, from newspapers to political podcasts. This treatment of politics behaves as if both sides have equal levels of honesty, integrity, and good intent for the nation.
But that’s very much not how politics works in 2022, and the both-sides-ism of Sunday shows and “balanced” reporting endangers our democratic republic by behaving as if it is.
In fact, this decision is almost singularly like no other. Only Plessy v Ferguson and Dred Scott v Sandford have removed rights that had previously been recognized for generations, and both those decisions were in the 19th century.
Our society’s and media’s political illiteracy is making it harder for many people to understand what’s happening.
The words progressive and conservative have actual meanings, a fact that’s never mentioned in today’s political press.
Progressives want society to progress, to move forward to new and better futures. Generally, their debates are about how to best accomplish a healthier, happier, and more equitable society with a minimum of negative consequences.
Conservatives want the status quo to remain largely intact, to be conserved. Similarly, their debates are typically about how policies to keep society stable work best and how to minimize their side effects.
While it’s clear who the progressives are — even the “Corporate Problem-Solver Dems” generally are willing to work toward a better world, just so long as one of their donors can make a buck off it — it’s entirely unclear who in American politics (outside of Liz Cheney or Mitt Romney) is an actual conservative.
That’s because when self-identified “conservatives” work to reverse progress, they’re not being conservatives in the true meaning of the word. Reacting, as they do, to a new and improved world and then trying to reverse it, they’re by definition reactionaries.
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And reactionary now describes most of today’s Republican Party in both houses of Congress and the 50 states, as well as the Republican appointees on the Supreme Court. Rather than trying to conserve the status quo, they’re instead reacting to the last century of progress, trying to undo and then utterly reverse it.
You see this across the spectrum, from relitigating classroom debates in an echo of the Scopes Monkey Trial or the trials against witches in the early days of this republic, to banning and publicly burning books.
When Republican Senator Ben Sasse wrote an op-ed for The Wall Street Journal arguing Congress should repeal the 17th Amendment — which gave citizens the right to vote for their senators, rather than having them appointed by corrupt political machines in the states — he wasn’t trying to “conserve” anything that has existed in the lifetime of anybody alive today.
The 17th Amendment was ratified in 1913.
When Ann Coulter called for repealing the 19th Amendment which gave women the right to vote, she wasn’t trying to conserve anything in the living memory of Americans: it was ratified in 1920.
Nonetheless, she argued:
“Women see the government as their husbands. I mean when you look at the Democrats getting in there and spending $4 trillion… wherever women are given the vote in whatever state, in whatever country, you see spending going through the roof.”
In response to Trump followers picking up on Coulter’s call and creating a trending #Repealthe19th hashtag, Nate Silver tweeted:
Nothing conservative there, either: repealing the long-established right of women to vote in America is purely reactionary.
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Now comes the Supreme Court, rolling back privacy rights established in the Griswold v Connecticut case so they can end women’s right to safe, legal abortions.
In 1965, Griswold moved the country forward when it overturned a 19th century law that criminalized married couples possessing birth control; using similar “right to privacy” logic, progressives on the Supreme Court legalized unmarried people possessing birth control in 1972 (Eisenstadt v. Baird).
As I lay out in The Hidden History of Big Brother, that progressive recognition of a constitutional right to privacy was first articulated in a 1928 dissent by Justice Louis Brandeis in Olmstead v. US. Although Brandeis lost the argument, his statement that Americans should enjoy the “right to be let alone, the most comprehensive of rights, and the right most valued by civilized men” echoed around legal circles for 37 years before the Court’s majority finally picked it up for Griswold.
The 1965 Griswold precedent was, in fact, the first time in American history that the Supreme Court had found a right to privacy in the Constitution.
Four years earlier, in Poe v Ullman, the Court determined it was okay for states to criminalize possession of birth control because no privacy or birth control right existed in the Constitution: Griswold, echoing Brandeis from 1928, functionally reversed that decision.
Since then the Court has found a “right to privacy” in the 1st, 3rd, 4th, 5th, 9th and 14th Amendments, and applied them to American law.
(The word “privacy“ doesn’t occur in the Constitution because in 1787 that word most commonly meant “to use the privy” or outhouse. Instead, the right to privacy is laid out in phrases like, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”)
Griswold and others have been part or all of the basis for legalizing interracial marriage (Loving v Virginia 1967), abortion, (Roe v Wade 1972), gay sex (Lawrence v Texas 2003), gay marriage (Obergefell v Hodges 2015), and even private phone calls without a search warrant (Carpenter v US 2018).
Concluding that Roe was “wrongly decided,” the Court’s Republicans have set the stage for repealing any or all of the decisions mentioned above. There is nothing “conservative” about that: it’s purely reactionary.
And the destruction of our privacy rights will be very useful — and probably called upon — should another strongman dictator-type president like Trump arise in America and want to wield the law against his perceived enemies.
These reactionaries have been on the move for the better part of four decades.
Deregulating well-functioning markets and banking, destroying labor unions and the right to unionize, granting trillions in tax breaks/subsidies to the very richest, and allowing massive monopolies to form in every industry are not the behaviors of people who believe in “conservative“ principles.
They are, instead, the behaviors of reactionaries, trying to reverse a more egalitarian and widely middle-class society that had formed around them in the years after World War II without their consent and against their will.
Rolling back voting rights is also not “conservative”: it’s also purely reactionary.
When Jeb Bush stripped the voter registration of 90,000 Black residents of Florida just months before his brother George’s election win by 537 votes in that state in 2000, it was reactionary — essentially a rolling-back of the 15th Amendment right of Black people to vote — not “conservative.” Ditto for when Ken Blackwell did a similar (~300,000 people) voter purge in Ohio just in time to deny John Kerry the 2004 election by a bit over 100,000 votes.
When Republicans attempted a repeat of the Black/urban-voter-purge scam in Ohio in the 2018 election, the Supreme Court — by 5-4 — backed them up, saying GOP-run voter purges were broadly fine with them. (Nobody has ever credibly alleged a similar scheme by Democratic Secretaries of State.)
As a result, now states with Republican governors and secretaries of state routinely “cage” and purge Black, Hispanic and known Democratic voters from their rolls to retain power.
There’s also nothing “conservative” about trying to steal a presidential election, first by fraud and then by force, as happened after the 2020 election.
That was also reactionary, an attempt to return to the 1876 era when Democrat Samuel Tilden won both the popular and the electoral vote, but Republican Rutherford B. Hayes ended up in the White House because the election was thrown to the House of Representatives.
The basis of that entire scheme was making a deal to end Black voting rights (and, thus, to end Reconstruction) if only Hayes could become president: it perfectly echoes modern Republican changes in state laws to disenfranchise Black and Democratic voters and even to legally ignore their electoral college votes if the state legislature chooses to.
When President (and popular vote loser) George W. Bush campaigned on privatizing Social Security and Medicare, it wasn’t based on any meaningful conservative principles: he was trying to destroy programs that had been in place since 1935 and 1966 respectively.
His reactionary Medicare Advantage scam has already succeeded in privatizing almost half of Medicare!
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Since the passage of the 13th, 14th and 15th Amendments in the 1860s this country has largely followed a steady path toward expanding the rights and benefits of citizenship beyond just wealthy white men.
There have been setbacks along the way like the “separate but equal” Plessy v Ferguson decision of 1896 — the last time a constitutional right was withdrawn by the Court (until now) — although that was overturned by Brown v Board of Education in 1954.
But the experience of Black voters in Florida in 2000 — among other states by Republican governors and secretaries of state — confirms that the path forward isn’t always straight or easy.
As the long annals of the Civil Rights and Women’s Rights movements show, political history tends to move forward, then lurch back a bit, then gain momentum and move forward again.
The loss of privacy rights in Alito’s leaked decision with Dobbs v Jackson Women’s Health undermines almost a century of carefully built jurisprudence around the issue of whether Americans will have the privacy right to prevent our government from intruding into our most personal affairs in the future.
Particularly if we again have a wannabe-dictator strongman as president.
The risk of a strongman dictator — aligned with rightwing business interests and the morbidly rich — taking over America and turning our government against us has been here, after all, since the last coup attempt, when American industrialists tried to hire General Smedley Butler to overthrow President Franklin D Roosevelt in 1933.
While the reactionaries are winning now, it will probably be a pyrrhic victory.
If this decision succeeds in repeating the last two Supreme Court efforts to take away Americans’ rights — Dred Scott v Sandford (1857) and Plessy v Ferguson (1896) — history tells us there is a difficult road ahead, but that the next turning of events will nevertheless be toward progress.
The question today is how long it will take, and how many women will die in back-alley abortions before we get there. The length of that time will depend on how politically active good people are willing to become and stay.
Originally posted at The Hartmann Report