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OPINION | JOHN BRUMMETT: Roe and anti-democracy

by John Brummett | May 4, 2022 at 4:07 a.m.

Politico broke a story for the ages Monday night. As scoops go, this topped the Pentagon Papers.

The online news organization released the in-house working draft of a 98-page proposed majority opinion of the U.S. Supreme Court written by ultra-conservative Samuel Alito.

If surviving revision or any changed opinions by justices in a sacred secret process never before leaked midstream in full text, at least in modern times, the text would repeal outright Roe v. Wade. And that would remove any American woman's federal legal right to an abortion under any circumstance.

Immediately upon this real breaking news, workers began erecting secure fencing around the Supreme Court building to keep protesters at a distance.

There are many epic elements of this historic development. But we should start with the underlying context of anti-democracy.

Polls show that six in 10 Americans do not want to remove altogether an abortion right. That reveals a prevailing public sensitivity to rape, incest, doomed fetuses growing without brains and the full citizenship rights of women.

But, like everything else in America's current political predicament, those six in 10 tend to be bunched together tribally. The Electoral College and the two-member-per-state membership of the Senate--by their compounding effect--elevate the people in the 40 percent also existing tribally.

The draft reflects that five of nine justices--Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Barrett--have voted in conference to overturn Roe v. Wade. Three of those, a decisive number, were nominated by an insurrection-inspiring Republican president taking office despite finishing second in the popular vote, then confirmed by a narrow Republican majority in the Senate that had received fewer votes cumulatively than Democratic senators.

One of those judges was nominated only after Senate Majority Leader Mitch McConnell refused to let the popular vote-winning Democratic president make a nomination to fill a vacancy occurring with nearly a year to go in his term.

A fourth justice, the author Alito, was nominated by a president getting his first term after finishing second in the popular vote and by the decision of the Supreme Court to quit worrying about how Florida people actually voted.

To summarize, American women are about to lose federal rights over their bodies, even in tragic circumstance, because of second place's stranglehold on American politics.

So, it was a good idea to get the fencing up.

There is speculation that straight-up repeal of Roe v. Wade as written by Alito could lead to unprecedented public discrediting of the Supreme Court. And that would amount to a tragic crisis.

This nation's justice system is a global ideal. But it has existed only by the sane acquiescence of the people. Sane acquiescence to global ideal has been on the wane in America, reaching the level of insurrection on Jan. 6, 2021. It was subjected to new threat Monday night.

Somebody in or very near the court had to have leaked the draft. And leaks usually reflect a vested interest of the leaker. Right-wingers were busy on social media identifying by mere conjecture a certain clerk for a certain liberal justice and calling for criminal charges. Left-wingers were busy saying the ruling could not be accepted.

The problem is not the justice system itself. A Supreme Court more worthy of respect than this one could more easily make the arguable ruling that the right of privacy created in Roe v. Wade was overreach.

The problem is our antiquated political system that defies contemporary will and wisdom. If we'd elect our president by popular vote, we could maintain the state-elevation constitutional concept of equal two-per-state Senate membership and rectify the situation by which a popular vote-losing president could conspire with that Senate to reduce women to birthing vessels.

A stalemate by which no left-leaning president's nominee could get confirmed by a right-fearing Senate would be better--more just, less a reason for emergency fencing--than what was revealed Monday night.

A couple of long-term vacancies--maybe forcing the nomination of stellar lawyers without political records whose views on abortion would be unknown and who would be chosen for legal excellence rather than as predetermined legislative votes--would provide a massive improvement in American life.

Courts are not our problem. Politics is our problem.

As written, Alito's text would turn abortion rights back to the state-by-state red-blue divide. Thirty-three states including Arkansas, of course, have trigger laws to outlaw abortion at varying levels upon federal repeal of Roe v. Wade. Most of the other 17 states can be expected to pass state laws keeping the tenets of Roe v. Wade. Women in those states--and women from the 33 with travel money--would be able to continue existing as more than birthing vessels. Not so for the less-moneyed women in those 33.

The two Americas--one red, one blue; one with money, one without--would become starker.

Finally, any idea that the ruling would cause the abortion debate to stop driving politics destructively in this country is wrong. Republicans already are talking about a national anti-abortion statute from Congress to supersede state-by-state authority. They can't pass it. They know that. But they can use it to keep raising money and stirring single-issue passions, both for their side and the other.

As I wrote Tuesday, the two extreme bases, left and right, exist only by the hate they spoon-feed each other.

Inside word from the Supreme Court is that second-place justices are loading up the ladle.

John Brummett, whose column appears regularly in the Arkansas Democrat-Gazette, is a member of the Arkansas Writers' Hall of Fame. Email him at Read his @johnbrummett Twitter feed.

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