I have to confess, I don’t really understand why the Supreme Court justices are so tweaked about the leak of a draft ruling on Roe v. Wade.
Let’s leave abortion out of this for a moment. Let’s make it about abolishing some obscure turn of law adopted as a precedent in the early 1800’s requiring porcelain garden gnomes to be placed front of government buildings. (I just made that up, by the way.)
Someone — someone — then leaks a draft of the Supreme Court opinion that abolishes the Garden Gnome Precedent.
RAGE! The Sanctity of the Court has been compromised! No one in the Court can be trusted! Who leaked this document? Search out the vile miscreant! SOMEONE NEEDS TO PAY! We can only hope and pray that The People will not lose ALL TRUST in the Court because of this! ARRRGGGHHHHH!
When people start to distrust the courts, it is (and has always been, and will always be, in all times and all places, forever and ever) the result of the Court repeatedly handing down shit decisions.
The real issue here appears to be that the Court was “outed” over a shit decision in-the-making before they had the chance to pass it off as settled law. In this regard, it is a bit like the failed coup of January 6, 2020. When you attempt to overthrow the government, the goal is to get it over with before anyone catches on. Otherwise, it turns into “for want of a nail,” and all that.
When you intend to hand down a shit decision from the Supreme Court, it’s useful to keep it secret until it’s a done deal.
All this outrage from Alito and Thomas in itself seems to me a plausible reason to distrust the Court. Something is distinctly off. Like opening the door to your son’s room to tell him dinner is ready, and when a cloud smelling of skunk and mint wafts out, he launches into a screaming rage about “privacy.”
It isn’t about privacy.
In other words, I think all this rage and pouting is really about the fact that the very justices who wrote the draft already know it’s a shit ruling. It would not matter if it were about abortion, or porcelain garden gnomes. The court understands perfectly well that it is trying to wrap the law around something indefensible, and now that it’s out in the open, they are going to have to face the wrath and distrust of The People before they’ve managed to make it a done deal.
So let’s talk a little about the history of both the nation and the Court.
There have been two fundamentally different models of (white) government in the US since the Europeans arrived.
The first — the earliest — consisted of entirely autonomous colonies (subject to European rule, but like mobsters, if you keep them paid, they leave you alone), which gradually expanded, consolidated, and became the original thirteen states of the US. The Articles of Confederation, adopted in 1777, bound these thirteen states together as a Confederation. In 1789, the Articles of Confederation were replaced by the US Constitution.
The core problem with the original Confederation, and with the United States up until the mid 1850’s, was that the states really didn’t get along very well.
One of the difficulties was slavery.
The southern states, in particular, had grown rich on an agrarian model, exporting various crops and agricultural products to Europe, and the profit margins were based on the economics of slave labor. Between the original colonies in the early 1600’s and the states of the early 1800’s, several things changed. The southern agrarian model depleted the soil, especially cultivating cotton, so yields declined. Competition from other nations started to cut into export profits. The slave trade started to decline, particularly after England abolished slavery (1807), raising the prices and reducing availability of slaves. And perhaps most importantly, the Mechanical Age, or the Technological Age, was rapidly replacing manual labor, and capturing the lion’s share of new wealth. This gave the northern states an alternative to trying to compete with export of agrarian products, an alternative that required an increasing number of increasingly skilled workers.
Slaves escaping to northern states could be trained.
Slavery turned into a very tense national issue through the early 1800’s, particularly as the Abolitionists began making a strong (i.e convincing) moral/ethical argument against the institution of human slavery.
In 1861, the southern states seceded from the northern Union of States, and formed a new Confederacy of States under new Articles of Confederation. The Union and the Confederacy went to war.
The Confederacy lost the war, was abolished, and its states were re-absorbed into the Union. All the states again became a United States of America under the Constitution.
This tension between a single united government, and a loose confederation of sovereign states, has never receded more than momentarily since 1778. It still lives.
One of the central issues is the Thirteenth Amendment, which abolished slavery immediately after the Civil War, and the Fourteenth Amendment, which made full citizens of black people and gave them the right to vote. It is intrusive on “freedoms” in two very fundamental ways.
First, it abolishes slavery across all of the states, which establishes that the federal government can, indeed, tell the states what they can and cannot do.
Second, it establishes that the federal government can establish national laws based on a moral basis — we call it “humanitarian,” but that’s just a sugar-frosted word for “moral.” From an economic standpoint, slavery is and has always been economically profitable for the slaveowners (though it generally sucks for the slaves.) You need look no further than the $15/hour sticking-point on the national minimum wage to see that slavery is still profitable. But outright slavery — legal ownership of human beings as property — is enshrined in the Fourteenth amendment as “morally repugnant” (and illegal) within the United States.
Moving to the present, there is a current strain of legal theory called “originalism.” I’m not the right person to walk the ins and outs of this theory, but my take on it is that it basically wants to go back to a Confederacy model of sovereign “states’ rights,” much as was embodied in the original US Articles of Confederation and the original Constitution, minus all of the fluffy Amendments (including the Bill of Rights). It isn’t clear if they think the entire Bill of Rights needs to go, but the Thirteenth and Fourteenth Amendments definitely need to go, and pretty much everything after that. It’s all lumped together as “federal overreach.”
This legal theory is deeply dependent upon understanding the “Original Intent of the Framers.” Of course, the only people who could possibly determine this “Original Intent” are legal scholars like (for instance) Clarence Thomas and Neil Gorsuch. Perhaps John Eastman, the “legal scholar” involved in the Jan 6 coup. Perhaps Jared Kushner: he’s apparently an expert on everything.
The naked conceit that any 21st century person could truly understand the “intent” of an 18th century slaveowner-turned-statesman is ridiculous.
My observation is that people who pretend to understand the Intent of the Framers are running a con. Or to step away from American slang usage, they are simply lying.
But fine. Let’s just presume that they have some kind of magical, trans-historical psychic power that lets them enter into the mind of, say, Alexander Hamilton, and divine his Inner Thoughts.
We live in a different world than Alexander Hamilton could possibly have imagined. These historical people were not gods. They were not all-knowing. Many of them weren’t all that smart. All of them were flawed.
I personally believe that “originalism,” as a legal theory, is an intellectual fraud, at such a basic level that even a layman like myself can call bullshit with some confidence. It’s merely a way to overturn custom and government while pretending to “restore” it to a romanticized earlier state that almost certainly never existed.
But the two fundamentally different philosophies of government remain, and those are quite real.
So to bring this back to the Rage in the Supreme Court, I think this current packed Court’s intent — at root, with all dissembling stripped away — is to abolish the Fourteenth Amendment, to “restore freedom.”
When you hear people screaming about “freedom,” the Fourteenth Amendment is at the core of it. And they are basically screaming for their state governments to have the freedom to oppress citizens of that state in cruel and arbitrary ways, as in the Good Old Days. The right of states to do whatever they damn well please. To bring back slavery. To criminalize abortion. To make Christian Evangelicalism the State Religion. To restrict the vote to “desirable, productive” citizens. To deport minorities. To lynch people on hearsay without trial or evidence. To maintain Law and Order with armed militias.
The people screaming about “freedom” think this freedom applies to them as individuals, because they are all the “right kind of people.”
They are in for such a rude awakening….