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GELFAND’S WORLD - The Supreme Court temporarily protected sales of the so-called abortion pill with a unanimous verdict that came down a few hours ago. The verdict came at a moment when the image of the court couldn't be lower, what with its previous decision to overturn Roe v Wade. People have been wondering whether the court would next go after contraception. As for sales of abortion pills by mail, it seemed likely that the court would follow in its previous decision that in effect outlawed surgical abortion procedures in many American states.
So why this decision, and why now? It's the second oldest line in American politics: The Supreme Court follows the election returns. In this case, it's all those special elections to protect abortion rights and all those special elections of local officials who were supportive of the pro-abortion side. We've been going through a revolution in American politics, and the justices obviously noticed.
Another reduction in American liberties driven by a partisan Supreme Court would have reminded voters of just where the Supreme Court is with regard to reproductive freedom (they are against it) and would have been a disaster for conservatives in the November elections.
So what did the Supreme Court do? As the commenters said, they punted. In particular, they found a narrow technicality by which to avoid deciding on the fundamental question. Instead, the court held that the plaintiffs did not have standing to file their lawsuit. Notice that this kind of decision doesn't mean that the conservative majority couldn't take up the question again, at a more politically advantageous time.
No. All they would need would be a different plaintiff -- perhaps a state government -- for which they could now pretend that standing is established. They would then apply exactly the same logic as they used to overturn Roe v Wade.
Simple as that.
But as we have said, the Supreme Court is not unaware of the election returns and the polls and even what newspaper columnists write about them. They had taken up this case in an earlier moment when they were not expecting such a powerful public reaction against their anti-Roe decision. Once they saw the election results, they were stuck with coming up with some sort of verdict that wouldn't automatically reelect Joe Biden. The punt was therefore in order.
Even the court's conservatives could figure out that if you want to consider the question of standing, a group of doctors who simply wanted to take away other peoples' rights were not the kind of plaintiffs you would like to have.
The Corruption issues
This was all going on at a moment where corruption among the court's members is on the radar screen. Justice Thomas has been caught with his arm in the cookie jar right up to the shoulder, what with the expensive vacations and the loan on his camper. Justice Alioto signaled his support for the January 6 rioters with a flag display, although he blamed it on his wife. Noble fellow, he. And of course there are all those Trump appointees who swore on precedent, and then turned right around and cast their votes to overturn Roe. Did they perjure themselves? Well, maybe they had some little loophole, but everyone knew what they meant, and the decision to overturn Roe went directly opposite.
Just Plain Bad Law Issues
But it's not just outright corruption that is at issue. A long line of appointees made by Reagan, Bush Sr, Bush Jr, and Trump have pushed power away from the people and towards corporations, even as they gave religious zealots more power over their employees and over the public in general. It would take a generation to repair just some of those outrages.
It would take a trifecta of the Democrats holding the presidency and both houses of congress to begin the process of repairing damages caused by the Supreme Court. It may be unlikely, but the aftermath of the overturning of Roe makes it less unlikely. And with this possibility comes the corollary that a newly installed Democratic government could increase the size of the Supreme Court (long overdue anyway, what with population increase) to perhaps 13 or 15 members, and a centrist Democrat president could nominate a new generation of justices who will defend the peoples' liberties over the interests of corporations and billionaires.
(Bob Gelfand writes on science, culture, and politics for CityWatch. He can be reached at [email protected].)
