Menu Close

Tag: Women’s Rights

The ‘Raw Judicial Power’ of Samuel Alito Is an Attack on Dignity, Autonomy, and Progress

supreme court abortion
Cartoon by Mike Luckovich

Article by Jenny Breen, an Associate Professor of Law at the Syracuse University College of Law, where she teaches Constitutional Law, Administrative Law, and Labor Law.

What is the end game here for the U.S. Supreme Court’s right-wing majority? It’s not pretty.

The leak of the U.S. Supreme Court’s draft opinion in the Mississippi abortion ban case has put into authenticated form an announcement that abortion advocates on both sides of the aisle have been predicting for years: stack the Court with Republican-appointed justices and Roe v. Wade will be overturned. The Court’s leaked opinion does just that, holding that both Roe and Casey are now bad law because there is no longer any constitutional right to abortion.

The current draft—which will be revised between now and its formal publication, likely in June—tells us a lot about where the Court stands on abortion, of course, but also other constitutional rights and the role of the courts in our constitutional republic.

First, though the opinion purports only to hold that there is no constitutional right to an abortion, thus permitting states to implement laws restricting, banning, or even criminalizing abortions, the language of the draft opinion lays the groundwork for a future federal ban on abortion altogether. Alito’s opinion approvingly quotes Mississippi’s claims that dilation and evacuation abortions are “barbaric,” “dangerous for the maternal patient,” and “demeaning to the medical profession” as “legitimate interests” that “provide a rational basis” for the Mississippi ban. (The draft opinion employs rational basis review rather than the tougher level of review reserved for gender-based distinctions because—though it may surprise any human on the planet to hear it—the Court reminds us that previous cases have established that “regulation of abortion is a not a sex-based classification”).  These “interests” are, of course, anti-choice talking points, not rational bases for a ban on abortion. Their embrace by the draft majority opinion makes clear that Alito is being disingenuous when he claims that the decision “is not based on any view about when a State should regard prenatal life as having rights or legally cognizable interests.” Instead, the opinion is suffused with the unstated but implied belief that legally cognizable life begins at conception.

Second, Alito is also deeply disingenuous when he argues the opinion won’t impact other fundamental rights. Alito’s opinion holds there is no right to abortion because that right is neither explicitly mentioned in the Constitution nor implicitly contained within the Fourteenth Amendment’s protection of an individual’s right to liberty. Many of our most cherished constitutional rights are only impliedly contained within the expansive, conceptual language of the Constitution. As Justice Marshall reminded the Court over 200 years ago, “we must never forget that it is a Constitution we are expounding.”

So why does it matter to other constitutional rights that Alito doesn’t think individual liberty includes the right to decide whether to have an abortion? Because the liberty interest protected by the Due Process Clause and the right to privacy it encompasses are also the bases for the Court’s protection of gay marriage, the right to contraception, the right to private consensual sex, and the right to interracial marriage.

“Liberty,” the Court explained in Lawrence v. Texas, “presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.” Alito says he can’t seem to find a liberty interest in abortion because “the most important historical fact” is “how the States regulated abortion when the Fourteenth Amendment was adopted.” Needless to say, these other core rights would also not fare well under an analysis that prioritizes what legislatures were doing in 1868. Alito has already suggested as much. His dissent in Obergefell v. Hodges reads like an early edition of this draft opinion, arguing that gay marriage “lacks deep roots” and “is contrary to long-established tradition” and thus is not a right that can be protected by the Constitution. 

Finally, the opinion makes clear that the guard rails are gone when it comes to SCOTUS decision making. Throughout the opinion Alito returns repeatedly to the argument that the decision will correct “Roe‘s abuse of judicial authority” and “return the issue of abortion to the people’s elected representatives.” Of course, fundamental rights are fundamental rights because they are not up for debate by “the people’s elected representatives.” We don’t ask for state referenda on whether we should permit racially segregated schools. Courts do their best and most essential work for a democracy when they protect the interests that enable humans to live with dignity and autonomy.  

justice alito
Cartoon by Gary Markstein

In 2018, Alito wrote the majority opinion Janus v. AFSCME, the decision that held that public employees could not be compelled to pay agency fees to the unions that are required by law to represent them and advocate for their interests. Though public employee unions have passed the small “d” democratic test not once but twice—elected state legislators must first pass a law enabling public unions and then, of course, the public employees themselves must vote for their union—Alito’s majority opinion overruled a 41-year-old precedent to hold that agency fees violated the First Amendment rights of public employees. At the time of the opinion, commentators expressed concern that the Court’s easy overruling of a case it did not like did not bode well for Roe v. Wade in the hands of a differently constituted Court. And of course, that is precisely what seems to have happened.

Alito tries to ease the shock of the decision to overrule such longstanding and prominent precedent by citing a number of cases—I counted 26 in total—in which the Supreme Court has overruled its own precedent. But I am not aware of a single case on that list in which the Court overruled precedent to take away a previously granted constitutional right. 

So what is the end game here? Alito’s full vision for the United States has yet to be painted, but thus far it’s looking like an America in which “raw judicial power” (words he quotes disparagingly regarding Roe four times in the draft opinion) is used to foist the world views of judicially privileged interests upon the rest of us.

In the meantime, it means that where you live and what private resources you have at your command will be increasingly important to chart the course of your life.

As disconnected as they may seem on their face, overruling decades of precedent to weaken public unions on the one hand and doing the same to revoke a woman’s right to choose whether to have an abortion on the other are two sides of the same oppressive coin. They both chart dramatic turns away from an understanding of the law and Constitution grounded in commitments to individual dignity and autonomy in core spheres of life—work and family—and establish a core role for the judiciary in steering the ship in that direction. 

bruce-gerencser-headshot

Bruce Gerencser, 65, lives in rural Northwest Ohio with his wife of 44 years. He and his wife have six grown children and thirteen grandchildren. Bruce pastored Evangelical churches for twenty-five years in Ohio, Texas, and Michigan. Bruce left the ministry in 2005, and in 2008 he left Christianity. Bruce is now a humanist and an atheist.

Connect with me on social media:

You can email Bruce via the Contact Form.

Your comments are welcome and appreciated. All first-time comments are moderated. Please read the commenting rules before commenting.

RBG: Her Faith in Justice

ruth bader ginsberg

Guest post by MJ Lisbeth

Ruth Bader Ginsburg’s pioneering work will be long remembered. But the visual image of her that most of us have, and will retain, is of her diminutive frame draped in a robe d’avocat adorned with jabots chosen for agreements, dissents or other occasions of a jurist’s life.

Her sartorial choices, while distinctive, were also fitting (pardon the pun): They, like modern feminism, originated in France. So did the Enlightenment, which inspired notions of les droits l’homme et du citoyen—and, if indirectly, la laicite, the policy that, while not expressly prohibiting religious expression, has had the effect of eliminating public religious remarks by politicians and most other French public figures.

Justice Ginsburg never disavowed the Jewish faith in which she was raised. In fact, she sometimes cited Old Testament verses such as “Justice, justice shall you pursue” as guiding principles. She did not, however, try to shape the law or society in her, or anyone else’s, interpretation of a holy text. Rather, her faith seemed to be a fire within her that fueled her efforts at bringing about justice.

Another, perhaps more important, difference between the role religion plays in the words and actions of many American public figures and the role it played in Bader Ginsburg’s life is this: While public figures who are overtly Evangelical (and most other kinds of ) Christians are acting from privilege they don’t realize they have (in brief, entitlement), Ginsburg, as a daughter of people who fled pogroms only to face anti-Semitism in America, was acutely aware of her status as an underdog and outsider—yet did not share the “persecution complex” that afflicts too many who don’t realize their favored status.

Now I am going to share something I never would have understood had I not spent the first part of my life as male: It is too easy to fall into the trap of thinking that other people are being gifted with “special” privileges or treatment when they are simply getting the same rights everyone else has. I know I was guilty of it; perhaps I still am, sometimes. As a woman who attended an Ivy League school on full scholarship and graduated at the top of a law school in another Ivy League institution, Bader Ginsburg couldn’t help but to understand as much: Law firms wouldn’t hire her because she was a woman: A man “needed” the job more than she did.

One thing that makes Bader Ginsburg a hero is that she didn’t allow the intentional or unwitting sexists to destabilize her sense of herself. I have no doubt that any number of people tried to “gaslight” or sexually harass her. (About the latter, she mused, “What woman of my age hasn’t experienced it?”) I can’t get into her mind, but I don’t think I’m inaccurate in thinking that she understood that, ultimately, one cannot attain personhood, let alone equality, without a sense of one’s self, defined by one’s self and no one else.

That, as I understand it, is a core principle of the Enlightenment—and of the Founding Fathers of the United States, at least as they understood what it means to be a human being (i.e., white, male and a property owner). If you cannot define who you are, on your own terms, there is simply no way to have sovereignty over your mind or body. As someone who came to terms with childhood sexual abuse (by a priest) and sexual harassment and assault as an adult, at a late date in her life, this knowledge is now as vital to me as air, water and food.

In short, if you do not have the freedom to think and come to conclusions based on the evidence before you, and to say “No” when those rights are being denied to you, your mind and body are in someone else’s power. In other words, you are a slave. And when you are a slave, there is no justice.

So, whatever role her inherited faith played in her personal and professional life, her defense of rape victims, the right to an abortion and equal pay for equal work, and her fight against any and all forms of discrimination—and for the right to follow or reject her faith, or any other– are all part of a quest for justice. For that, I am grateful. And, I am sure, Theodore Herzl would approve just as much as Simone de Beauvoir or Voltaire would.

Unlike too many American legislators and public figures, she did not use her position to ram her religious beliefs down other people’s throats. Rather, her faith in the justice she pursued guided her work. For that, I am grateful.

Courtland Sykes Says to Women, Your Place is in the Kitchen Making Sure Dinner is Ready at 6:00 PM

courtland sykes

Missouri GOP Senate candidate Courtland Sykes took to Facebook recently to let feminists and nontraditional women what he thought of them. Let me hit the highlights for you. Grammatical errors are in the original:

  • I want to come home to a home cooked dinner every night at six. One that she [Sykes is engaged to be married] fixes and one that I expect one day to have daughters learn to fix after they become traditional homemakers and family wives.
  • I want my daughters to have their own intelligence, their own dignity, their own work space, and their own degrees; I want them to build home based enterprises and live in homes shared with good husbands and I don’t want them to grow up into career obsessed banshees who forgo home life and children and the happiness of family to become nail-biting manophobic hell-bent feminist she devils who shriek from the tops  of a thousand tall buildings they are think they could have leaped over in a single bound — had men not been “suppressing them.” It’s  just nuts. It always was.
  • I want to come home to a home cooked dinner at six every night, one that she fixes and one that I expect one day to have my daughters learn to fix after they become traditional homemakers and family wives — think Norman Rockwell here,  and Gloria Steinhem be damned.

Here’s Sykes’ full statement.

courtland sykes view of women

Sykes’ Facebook page describes him this way:

Courtland Sykes, Missouri’s newest candidate for the U.S. Senate, has been called MAGA’s boldest warrior. He is no stranger to conflict and danger—he spent four tours of duty in the military and intelligence arena in Iraq, the Middle East, plus a tour in Central and South American missions operating from the U.S. Embassy in Panama.

A certain forthrightness—call it a certain boldness in spirit—comes from a background like that and he takes no prisoners in stating his positions outright about America and its future.

Sykes is pro-Trump, pro-MAGA, pro-gun, anti-abortion, pro-wall—some have said he is the most outright and boldest of all Senatorial candidates regarding President Trump’s America First Agenda.

In other words, Sykes is a Trumpian Asshole®.

Bruce Gerencser