The Washington PostDemocracy Dies in Darkness

Opinion Supreme Court’s hacks reward Republicans’ betrayal of democracy

An abortion rights advocate holds up an image of the late Justice Ruth Bader Ginsburg during demonstrations outside the Supreme Court on May 5. (Mariam Zuhaib/AP)
5 min

So Senate Republican leader Mitch McConnell thinks the leak of the Supreme Court’s draft opinion overturning Roe is a “toxic spectacle” and an “attack.” Chief Justice John Roberts calls it a “betrayal.”

Cry me a river.

There is indeed a toxic spectacle and a betrayal going on here, but it isn’t the leak. It’s the betrayal of democracy by McConnell’s Republicans and the toxic spectacle of the Roberts court aiding it.

The reported 5-to-4 split on the draft shows that this cataclysmic ruling would be forced on the public by the narrowest possible majority. This means the ruling is possible only because of the seat on the court McConnell and his Republican colleagues effectively stole by refusing for 293 days to confirm — or even consider — President Barack Obama’s duly nominated candidate Merrick Garland.

Republicans handed that seat in 2017 to Neil Gorsuch — in the process going “nuclear” and eliminating the filibuster so that only Republican votes were needed for confirmation.

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Then, in a feat of astounding hypocrisy, McConnell’s Republicans reversed their pious claim that Supreme Court vacancies late in a presidency should be left to the “next president” and confirmed Amy Coney Barrett eight days before Joe Biden was elected president — essentially stealing a second seat.

Some justices reported by Politico to be voting to overturn Roe now stand accused by Republican Sens. Susan Collins (Maine) and Lisa Murkowski (Alaska) of misrepresenting their positions on the “super precedent” during their Senate confirmations.

Three of the five justices reportedly voting to eliminate Roe were appointed by a president who didn’t win the popular vote (Republicans won the popular vote only once in the past eight presidential elections) and confirmed with the votes of senators representing a lopsided minority of the American people.

And the wife of the senior associate justice said to be voting to undo Roe encouraged the Trump White House to overthrow the 2020 election results and to subject President Biden, Democrats and the media to military tribunals at sea. Yet Justice Clarence Thomas refuses to recuse himself from cases stemming from the insurrection Donald Trump ignited.

Now that’s one toxic spectacle.

Worse, this McConnell-packed Roberts court has returned the favor by stacking the deck in favor of minority rule by Republicans. It has blessed partisan gerrymandering, giving Republicans representation in the House disproportionate to their share of the electorate. It has allowed elections to be decided by billionaires and corporations spending unlimited sums of untraceable money. It has kneecapped labor unions, co-signed voter-suppression schemes by Republican-run states and eviscerated the civil-rights-era Voting Rights Act, to disastrous effect for Black and brown voters.

Now comes this breathtaking assault on the rights of women, a strongly Democratic constituency, eliminating the right tens of millions have firmly relied upon for half a century to control their own bodies.

The five justices have aligned themselves with the 16 percent of Americans who, according to the latest Post-ABC News poll believe abortion should be illegal in all circumstances, and against the 79 percent who believe it should be legal in at least some circumstances. Eighty-two percent of Americans believe abortion should be allowed if a woman’s life is endangered, 79 percent in cases of rape or incest and 67 percent if the child would be born with a life-threatening illness.

Under the draft opinion, states would apparently be free to ban abortions in all of these circumstances, and to charge women who have them with homicide. A couple of states have already considered banning abortions for life-endangering ectopic pregnancies.

Adding insult to this grievous injury, the opinion, by Justice Samuel Alito, is a political screed, dripping with the contempt he exhibits in rolling his eyes at colleagues during oral arguments. Alito breezily dismisses the deep reliance American women and their families have on the right to abortion, calling the American people’s views “extraneous influences” that “we cannot allow our decisions to be affected by.”

He accuses his predecessors who wrote Roe of “abuse of judicial authority,” being “egregiously wrong,” using “exceptionally weak,” “erroneous” and “plainly incorrect” reasoning, making an “error that cannot be allowed to stand,” “relying on two discredited articles by an abortion advocate” and acting as usurpers “wielding nothing but raw judicial power.”

Alito claims Roe was based on a “constitutionally irrelevant” history — then offers his own historical irrelevancies from a time long before abortion was the safe medical procedure it is today, with more than half of abortions induced by medication. “There was no support in American law. … Zero. None,” Alito’s polemic asserts, like a campaign ad.

“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” he writes, echoing 10,000 Republican stump speeches.

“It is time”? Why? Because Republicans have packed the court with enough illegitimate votes to do so, and the political hacks they appointed are now rewarding their betrayal of democracy.