By MICHAEL DAVIDOW, Radio Free New Hampshire
In retrospect, the fall of Roe v. Wade comes with not just anger but also sadness. It didn’t have to be this way. It could have gone differently. We need to consider why to plan how best to change things again.
Nor can we complain about the unfairness of this development. Roe was a decision grounded in politics, and that was okay. The bet we liberals made, however, was that our national politics would continue to evolve in the same direction. They haven’t, so Roe is gone.
The truth is, America began turning right a long time ago, but Democrats refused to see it. We were so focused on making sure that people of color or of different sexual orientations got called whatever they wanted to be called, we stopped caring about whether those people had jobs. We gave our economy to Wall Street, so long as Wall Street invited us to its parties. We focused on national demonstrations of inclusion and moral uplift to the near full exclusion of state and local needs. We didn’t make time for school boards. We made fun of churchgoers. We allowed our military to become a cult. We knew the rules of the Electoral College, but we chose to ignore them, then we complained when they repeatedly worked against us. And now we have once again lost something important. No surprise.
Justice Alito would have you believe that he is returning to some pure strain of non-political judicial practice that his forebears got horribly wrong. That is nonsense. Alito and his backers are politicians from top to bottom, just quiet ones, successful ones, and sneaky ones. Originalism is a theory of law fit for only reactionary societies; it would suit the Taliban just fine. It does not suit America, nor would it suit any dynamic western land with any belief whatsoever in human progress and spiritual growth.
The genius of our Constitution is exactly that it trades in broad generalizations, adaptable to the spirit of the times; had it been framed to support specifics instead, it would have been outmoded within the lifetimes of its actual writers. To deny the Constitution the flexibility inherent in both its construction and its goals is to reduce it to the work of small-minded hacks. Alito and his ilk are unworthy of the stuff with which they work. They are bad lawyers, cowards wearing the stolen coats of their betters, and greedy schemers looking for hacks in the system to get what they want.
There is a school of thought that says our Supreme Court either is or should be above politics. I don’t know who believes that though; nor do I know why that is presumed to be a good thing, nor even something possible. The Court was political in Roosevelt’s day when it tried to throttle the New Deal in its cradle. Roosevelt played hardball with it, and the Court gave in. The Court was political in Ike’s day when it was actually run by a hardball politician named Earl Warren. And the Court was political when Roe came along, every bit as political as today.
The truth is, we wouldn’t want a Court that refuses to respond to societal needs and political arguments. The truth is that is actually what we have today: a Court that ignores what the majority of our country wants. The truth is, we need a Court more responsive to political pressure, not less. The truth is, our national politics is broken, so our Court is broken too. The truth is, we need to heal our national politics, and then the Court will take care of itself.
The split between Democrats and Republicans has become too wide. In particular, it used to be easy to find Republicans who believed in abortion rights and Democrats who did not; whatever generalizations one might have once made about who believed what, you couldn’t color those lines with red and blue. Nor did our national politics ever in the past skew so horribly towards minority power as it does today, with both the Senate and the Electoral College in the grip of corn-fed zealots. Nor was our Supreme Court always so prestigious that old men and old women held onto their chairs until their dying breaths, as a matter of course.
We should demand that our Court’s justices be limited to a single term of ten or fifteen years; that its members be turned out on a regular but staggered basis; and that they be held to strict ethical standards, so that self-serving breaches like that of Justice Thomas and his highly social wife can be completely avoided. This needs to be an action item. Because we need to start somewhere and fast.
He is the author of Gate City, Split Thirty, and The Rocketdyne Commission, three novels about politics and advertising which, taken together, form The Henry Bell Project, The Book of Order, and his most recent one, The Hunter of Talyashevka . They are available on Amazon and Barnes and Noble.