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      ‘Historical accident’: how abortion came to focus white, evangelical anger

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      ‘Historical accident’: how abortion came to focus white, evangelical angerA short history of the Roe decision’s emergence as a signature cause for the right Public opinion on abortion in the US has changed little since 1973, when the supreme court in effect legalized the procedure nationally in its ruling on the case Roe v Wade. According to Gallup, which has the longest-running poll on the issue, about four in five Americans believe abortion should be legal, at least in some circumstances.Yet the politics of abortion have opened deep divisions in the last five decades, which have only grown more profound in recent years of polarization. In 2021, state legislators have passed dozens of restrictions to abortion access, making it the most hostile year to abortion rights on record.This schism played out in the US supreme court on Wednesday, when the new conservative-dominated bench heard oral arguments in the case of Dobbs v Jackson Women’s Health Organization, the most important abortion rights case since Roe.In somber arguments, justices questioned whether the state of Mississippi should be allowed to ban nearly all abortions at 15 weeks gestation, nine weeks earlier than the current accepted limit. While the ruling, expected by the end of June next year, is far from a foregone conclusion, justices in the conservative majority appeared to signal their support for severely restricting abortion access, a right Americans have exercised for two generations.The divisive question among the conservative majority appeared to be whether abortion should be restricted to earlier than 15 weeks, weakening Roe, or if the precedent set in Roe should be overturned entirely.Summarizing Mississippi’s argument, the conservative justice Brett Kavanaugh, who was controversially nominated to the court by Donald Trump in 2018, said “the constitution is neither pro-life nor pro-choice … and leaves the issue to the people to resolve in the democratic process.” If the issue is returned to the states, 26 states would be “certain or likely” to ban or severely restrict abortion access.The religious right in the US has been laying the foundations of this decisive challenge to abortion rights for years. According to historians and researchers, it has taken decades of political machinations for the campaign to reach this zenith. The movement has intersected with nearly every major issue in American politics for the last five decades, from segregation to welfare reform to campaign finance.The conservative anti-abortion movement “was a kind of historical accident”, said Randall Balmer, a professor of American religious history at Dartmouth University and author of the recently released book Bad Faith: Race and the Rise of the Religious Right.It wasn’t until Republican strategists sought to “deflect attention away from the real narrative”, which Balmer argues was racial integration, “and to advocate on behalf of the fetus”, that largely apolitical evangelical Christians and Catholics would be united within the Republican party. Balmer argues that advocacy was nascent in 1969.Although the supreme court decision in Brown v Board of Education called for an end to racial segregation in schools in 1954, many schools continued de facto segregation 14 years later.Then, the supreme court weighed in again, and ordered schools to integrate “immediately”. This prompted white southerners to form “segregation academies”, whites-only private Christian schools which registered as tax-exempt non-profit charities. African American parents in Mississippi sued, arguing this was taxpayer-subsidized discrimination. They won, and in 1971, tax authorities revoked the non-profit status of 111 segregated private schools.In Balmer’s view, revoking the non-profit status of segregated private schools catalyzed evangelical Christian leaders, but even in the early 1970s defense of racial segregation was not a populist message. However, defense of the fetus could be.Republican operations began to test abortion as a vessel for the collective anxieties of evangelical Christians, and Roe as a shorthand for government intrusion into the family after the sexual revolution of the 1960s. Eventually, abortion became the reason for evangelicals to deny the Democratic president Jimmy Carter, himself an evangelical Christian, a second term.Evangelical opposition to abortion “wasn’t an anti-abortion movement per se”, said Elmer L Rumminger, an administrator at the then whites-only Christian college Bob Jones University, said in Balmer’s book. “For me it was government intrusion into private education.”At the same time, the anti-feminist Republican activist Phyllis Schlafly was connecting anxiety about women’s changing roles in society with abortion. In a 1972 essay, she described the feminist movement as “anti-family, anti-children, and pro-abortion,” and the writing of contemporaneous feminists as “a series of sharp-tongued, high-pitched whining complaints by unmarried women”.By the 1978 midterm congressional elections, Paul Weyrich, one of the architects of modern conservatism, was testing abortion as a campaign issue with evangelical Christians with a small fund from the Republican National Committee. Roman Catholic volunteers distributed hundreds of thousands of leaflets in church parking lots in Iowa, New Hampshire and Minnesota, and their efforts prevailed. Four anti-abortion Republicans ousted Democrats.The groundwork laid by Schlafly and Weyrich made “Roe shorthand for a host of worries about sex equality and sexuality”, wrote Mary Ziegler, a law professor at Florida State University and author of After Roe: The Lost History of the Abortion Debate.“Even as late as August 1980, the Reagan-Bush campaign wasn’t certain abortion would work for them as a political issue,” said Balmer. However, as Reagan sailed to victory, he was carried in part by religious voters hooked on the promise of a constitutional amendment to ban abortion. When a constitutional amendment failed, a new strategy took hold: control the supreme court.Historians said segregation was only one part of a complex and multifaceted movement, which has long seen itself as a human rights campaign. By the 1970s, “there was an anti-abortion movement which was influential and pretty effective in the states that was ready for the new right to work with,” said Ziegler.In the coming years, Reagan would recast the politics of reproduction through a new racist prism, as he introduced the mythical stereotype of the “welfare queen”. The image allowed politicians to portray “all single mothers as persons of color and all persons of color as dependent on public assistance”, wrote the reproductive rights activists Loretta Ross and Rickie Solinger in their 2017 book Reproductive Justice: An Introduction.The image divorced family wellbeing and welfare support from abortion access and rights. Thus, the “broad middle ground” of issues that anti-abortion and pro-choice voters agreed on became “firmly partisan”, said Julia Briggs, author of How All Politics Became Reproductive Politics, and professor and chair of women, gender and sexuality studies at University of Massachusetts, Amherst.By the 1990s, anti-abortion activists had professionalized. So called “right to life” organizations rallied the base, and religious law firms dedicated themselves to fighting abortion in courts. The supreme court weighed in on abortion again in 1992, in another watershed case called Planned Parenthood of Southeastern Pennsylvania v Casey. The case allowed states to restrict abortion, as long as such restrictions did not create an “undue burden” on the right to abortion and served the purpose of either protecting the woman’s health or unborn life.States hostile to abortion passed “Trap” laws, or targeted regulations of abortion providers, which required abortion clinics to become the “functional equivalents of hospitals”, according to legal scholars. States instituted 24-hour waiting periods for abortion, state-mandated inaccurate information and invasive sonograms.Many clinics went out of business as they struggled to meet the expensive new requirements, and pregnant people struggled to obtain abortions as they had to travel further and spend more to find a provider.These laws would also play an outsized role in the Dobbs hearing. Conservative justices debated whether they could keep the “undue burden” standard while jettisoning a central tenet of Roe, that women can terminate a pregnancy until a fetus can survive outside the womb, or “viability”.“Why is 15 weeks not enough time?” asked Chief Justice John Roberts, a conservative, in the hearings.The politics of reproduction spurred new debates on acceptable restrictions on birth control, stem cell research and sex education during the George W Bush administration. But it was the election of Barack Obama, America’s first Black president, that supercharged Republican opposition.In 2010, the Tea Party swept the midterm elections. More extreme candidates entered Congress and statehouses through the practice of challenging incumbents in districts gerrymandered to be reliably Republican. And, in a decision not typically thought of as an anti-abortion victory, the chief counsel for National Right to Life successfully argued a supreme court case that would unleash vast sums of dark money into American elections – Citizens United v Federal Election Commission.“The anti-abortion movement, over time with other conservative allies, worked to change things like the rules of campaign finance for the conservative movement,” said Ziegler. “Anti-abortion lawyers played an integral part in cases like Citizens United.”By the time Donald Trump ran for president, evangelical Protestants had become more anti-abortion than the Catholic voters who were once the bedrock of anti-abortion advocacy. Seventy-seven per cent of white evangelical Christians say the procedure should be illegal, compared with just 43% of Catholics, according to the Pew Research Center.Trump harnessed the anger of white evangelicals for a victory in 2016, with a mix of hardline anti-abortion politicsand xenophobic nativism. Trump abandoned his 1999 stance as “very pro-choice”, saying there should be “punishment” for women who have abortions, and promised to nominate conservative supreme court justices who would “automatically” overturn Roe v Wade.Today, overwhelmingly white “Christian nationalist” voters believe their religion should be privileged in public life, a goal to be attained “by any means necessary”, according to social researchers such as Indiana University associate professor Andrew Whitehead.Supreme court decisions are notoriously difficult to predict, but abortion rights activists believe Wednesday’s hearing shows that conservative justices are ready to significantly weaken or perhaps overturn Roe v Wade. If that happens, young, poor people of color will disproportionately suffer, forced to carry unwanted pregnancies to term. Such an outcome is so severe human rights advocates have said state abortion bans would violate United Nations conventions against torture and place the US in the company of a shrinking number of countries with abortion bans.On Wednesday, the court’s three outnumbered liberal justices argued neither the science, the enormous consequences of pregnancy nor the American polity had changed since the court last decided a watershed abortion rights case. But, because of the work of anti-abortion politicians, the makeup of the court’s bench had.“Will this institution survive the stench that this creates in the public perception that the constitution and its reading are just political acts?” asked the liberal justice Sonia Sotomayor. “I don’t see how it is possible.”TopicsAbortionRoe v WadeUS politicsRaceUS supreme courtfeaturesReuse this content More

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      The ‘stench’ of politicization: Sonia Sotomayor’s supreme court warning

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      The ‘stench’ of politicization: Sonia Sotomayor’s supreme court warningOral arguments over the Mississippi abortion case this week showed the threat to Roe v Wade from an increasingly politicized court About 11 minutes into this week’s hearing on abortion rights at the US supreme court, the floor was taken by Sonia Sotomayor, one of the three beleaguered liberal-leaning justices left on the court after its sharp rightward shift under Donald Trump.‘It’s earth-shattering’: Democrats and allies vow midterm fight over abortionRead moreSotomayor began by noting that in the past 30 years no fewer than 15 justices of all political backgrounds had supported the right to an abortion up to the point of fetal viability. Only four had objected.Now after so many years of relative consensus, the legality of abortion enshrined in the landmark 1973 ruling Roe v Wade and reaffirmed in 1992 in Planned Parenthood v Casey was suddenly on the line.Politicians in Mississippi, Sotomayor remarked (while leaving it unsaid that they were rightwing Republicans), had devised new legislation to ban abortions after just 15 weeks of pregnancy. By these politicians’ own admission, their bills were targeted specifically at the three new justices on the supreme court (all appointed by Trump, though she left that unspoken too).Then she went in for the kill.She addressed the danger posed by the court’s sudden and apparently politically motivated change of heart not just to abortion rights but to the rule of law itself.If the nation’s highest court, with its newly constituted Trumpian majority, were to go along with the ploy set for it by Mississippi and throw out half a century of settled law affirming a woman’s right to choose, then what would happen to the court’s legitimacy as a place in American democracy that rises above the cut and thrust of grubby partisanship?“Will this institution survive the stench that this creates in the public perception that the constitution and its reading are just political acts?” she said. “I don’t see how it is possible.”Stench. The word ricocheted off the august walls of the courtroom like a bullet.“It was a shocking moment,” said Sherrilyn Ifill, director-counsel of the NAACP Legal Defense Fund. “An unadorned recognition of the legitimacy issues that are clearly preoccupying a number of the justices.”For Stephen Vladeck, a professor of constitutional law at the University of Texas at Austin, the takeaway of this week’s hearing was not how many justices were preoccupied with the reputational damage facing an increasingly politicised court, but how few. “To me, the single most distressing feature of Justice Sotomayor’s arguments was how little anyone else seemed to care,” he told the Guardian.Vladeck said he was dismayed by the “casualness with which so many of the justices seemed to be taking an issue that is so central to so many women. A ruling that gets rid of Roe would be enormously damaging in the eyes of millions of Americans, yet some of the conservative justices don’t seem to think that’s important.”The perception of nonchalance towards the integrity of the court among the six conservative justices now in the majority is striking. In advance of last week’s supercharged hearing, several of those same justices bent over backwards to try to convince the American people that they are neutral servants of the constitution.The three justices appointed by Trump have been especially keen to portray themselves as having not a partisan bone in their body. Neil Gorsuch, Trump’s first of the three appointments, insisted in September 2019 that it was “rubbish” to imply that the justices were “like politicians with robes”.More recently Amy Coney Barrett, another of Trump’s triumvirate of appointees, told an audience in Kentucky that the supreme court was not “comprised of a bunch of partisan hacks”. But she was speaking at the McConnell Center at the University of Louisville and was introduced at the event by the politician after whom the venue is named – Mitch McConnell, the top Republican in the US Senate. It was his shenanigans, blocking Merrick Garland’s confirmation to the court in 2016 on grounds that it was in an election year then rushing through Barrett’s confirmation much closer to election day in 2020, that gave Trump his three picks.But it is the third of Trump’s supreme court proteges, Brett Kavanaugh, whose position is perhaps most glaring. During his confirmation process in 2018 Kavanaugh went to great lengths to underline his respect for the decisions made by his predecessors on the court, and for the legal doctrine known as stare decisis, which requires justices to honor past rulings in all but exceptional cases.Kavanaugh assured senators worried about his stance on abortion that he saw Roe v Wade as “settled law”.He went even further in his conversations with Susan Collins, the relatively moderate Republican senator from Maine on whose vote Kavanaugh depended. When she announced her decision to back him for the supreme court, she revealed what he had said to her during private conversations.“There has been considerable … concern that Judge Kavanaugh would seek to overturn Roe v Wade,” she said. “Protecting this right is important to me. As Judge Kavanaugh asserted to me, a long-established precedent is not something to be trimmed, narrowed, discarded or overlooked.”But when it came round to Kavanaugh’s turn to speak in this week’s debate he read out a long list of supreme court cases in which prior precedents had been overturned. He left observers with the clear impression that he was preparing to do precisely what he promised Collins and her fellow senators that he would not do – run roughshod over a pillar of constitutional law.The pointed interventions of the Trump justices and their conservative peers in this week’s hearing have led most observers convinced that abortion rights in the US are likely to be grossly restricted or abolished outright when the court rules next June. That would be uncannily as Trump himself had predicted.In a televised debate during the 2016 presidential race, Trump was asked by the Fox News host Chris Wallace whether he wanted the court, including any justices he might appoint as president, to overturn the right to an abortion. He replied: “I am pro-life, and I will be appointing pro-life judges. I would think that that will go back to the individual states.”Trump did go on to appoint anti-abortion judges, and they are now poised to send control back to individual states, 21 of which currently have laws in place that would effectively ban abortions overnight were Roe v Wade overturned.Vladeck fears that the vast and growing disconnect between what the conservative justices say they are doing – impartially and faithfully upholding the law of the land, and what they are actually doing – playing along with the machinations of politicians in states like Mississippi, bodes very ill for the legitimacy of the court.In the long run it could also harm America’s future as a country of laws.“Public perception matters,” he said. “The more the court appears to be guided by contemporary partisan preferences as opposed to permanent legal principles, the harder it will be for millions of Americans on the wrong side of these cases to understand why they should be bound by them.”TopicsUS politicsUS supreme courtLaw (US)AbortionnewsReuse this content More

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      Ending Roe v Wade is part of a long campaign to roll back democracy itself | Jill Filipovic

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      Ending Roe v Wade is part of a long campaign to roll back democracy itselfJill FilipovicThe demise of abortion rights is the outcome of years of Republican work to make it harder for people to vote and stack the bench with rightwing judges American democracy is at the breaking point, and a supreme court ready to gut or overturn Roe v Wade is the latest warning sign. A radical minority is accumulating ever more power, and they’re threatening to undermine equal rights under the law, basic human freedoms, and democracy itself.Republicans are quietly rigging election maps to ensure permanent rule | David PepperRead moreOn Wednesday, the supreme court heard arguments in a case challenging Mississippi’s ban on abortions after 15 weeks of pregnancy, even for rape and incest survivors. Under the longstanding legal framework of Roe v Wade and Planned Parenthood v Casey, two of the supreme court cases that shape abortion rights in the US, states cannot outlaw abortion before the point of fetal viability, when the fetus can survive outside of the woman’s body (states can put restrictions on abortion before that point, so long as those restrictions don’t pose an “undue burden” on women seeking abortions). The Mississippi law violates that longstanding supreme court precedent.Yet the court agreed to hear it anyway, which was the first bad sign – why hear a case that so clearly flies in the face of what the court has already ruled? Wednesday’s oral arguments only contributed to the sense of doom, as a majority of the justices seemed ready and willing to overturn Roe.This didn’t happen by accident. The rightwing stranglehold on the courts has been a long-term project achieved by devious means. Republicans blocked Barack Obama from appointing dozens of judges to the federal bench, leaving those slots open for Donald Trump to fill. He stacked the courts with conservative reactionaries, many of whom were so unqualified that they failed to get the basic endorsement of the American Bar Association (ABA). Instead of appointing qualified candidates over rightwing stooges, the Trump administration simply cut the ABA out of the judicial vetting process.The most egregious of these Republican blockades came when Obama tried to appoint Merrick Garland to the supreme court seat vacated by Antonin Scalia. The right cried foul: it was wrong to change the balance of the court, they said, and it was an election year and therefore unfair to allow Obama a supreme court appointment; voters should decide the next president to pick a supreme court judge.A majority of voters wanted Hillary Clinton to have that role. But our undemocratic and archaic electoral college rules handed the victory to Donald Trump – the second time in less than two decades that the winner of the majority vote lost the White House.Trump, who ran on a promise of appointing anti-abortion judges who would overturn Roe v Wade, set about doing just that. He appointed Neil Gorsuch to the seat that should have been Garland’s. Then he appointed Brett Kavanaugh, despite the judge facing credible accusations of sexual assault. Finally, and most insultingly, Trump and his Republican Senate allies rammed through the appointment of the explicitly anti-abortion Amy Coney Barrett to the seat vacated by the feminist icon Ruth Bader Ginsburg – in his last year of office, and despite the supposed rule about a president letting the voters decide before an election.Trump voters – a minority of Americans in both 2016 and 2020 – are about to get what they want: an America in which women and girls are forced into pregnancy, childbirth and motherhood; an America in which women are second-class citizens, not entitled to control over the very bodies they live in, forced to risk their lives in the name of “pro-life” misogyny.The rest of us are stuck dealing with these minority religious views imposed on us.Strong majorities of Americans support abortion rights and do not want to overturn Roe. And in any case, the supreme court is supposed to be a bulwark against tyranny, an institution that defends and upholds constitutional rights, not one that punts those rights to the states.This court is not that. And that’s because of the shameful rightwing devastation of American democracy. Three members of the conservative supreme court majority, after all, were appointed by a traitorous president who fomented an attempted coup against the United States, and who has continued to undermine the electoral process by claiming that the last election, which he lost fair and square, was stolen. His party has devolved into a cult of personality, so tied to one narcissistic tyrant that it didn’t even bother releasing a political platform in the last presidential election. And because the Republican party knows it will lose if it has to play on an even playing field, its members have been systemically undermining voting rights for years.The demise of abortion rights in the US is the outcome of years of anti-democratic organizing to make it harder for people to vote, gerrymander districts, pull power from various elected offices when Democrats win them, and stack the bench with rightwing judges who will allow it all to happen.It’s terrifying. And of course forcing women into subservience and traditional roles is part of this process – that’s been the strategy in authoritarian nations throughout history, and it’s a pattern we’re seeing play out now, as the same nations that are scaling back democratic norms and processes are also going after women’s rights.That American women are facing a hostile supreme court and are looking at a future without abortion rights – and potentially without the constitutional right to contraception – isn’t a matter of law or “life”. It’s a sign of a democracy in decline.
      Jill Filipovic is the author of OK Boomer, Let’s Talk: How My Generation Got Left Behind
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      The supreme court is signalling that it’s ready to end Roe v Wade | Moira Donegan

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      The supreme court is signalling that it’s ready to end Roe v WadeMoira DoneganPredictions that the court would keep abortion as a constitutional right are starting to look incredibly optimistic It went worse than had been expected, and expectations were already low. As the supreme court prepared to hear oral arguments in Dobbs v Jackson Women’s Health Organization, a lawsuit over a 15-week abortion ban in Mississippi that constitutes the most serious challenge to Roe v Wade in a generation, many court watchers predicted a massive rollback of abortion rights. But the line among reasonable pundits was that the court, fearing censure from a largely pro-choice American public, would attempt to have its cake and eat it too – allowing states to impose abortion bans earlier in pregnancy, but keeping abortion as a constitutional right intact.The most convincing version of this argument came from Slate’s Mark Joseph Stern, who predicted that the court, like it did in 1992’s Planned Parenthood v Casey, might weaken the abortion right without abandoning it entirely. In Casey, the supreme court lessened the standard of scrutiny applied to state abortion restrictions – from a robust “strict scrutiny” standard to a more malleable “undue burden” standard – and affirmed that states could ban abortions outright after fetal viability, the point of gestation at which a fetus can survive outside the womb, usually at about 24 weeks.Stern, like many others, predicted that the court might impose an even more deferential legal test on abortion restrictions – “rational basis review” – and eliminate the viability standard. The result would be that states could ban and restrict abortions more easily, even before viability, but they would still not be allowed to ban abortions entirely. “The court could move back the point at which states can prohibit abortion outright from 24 weeks to 15 or perhaps 12, the end of the first trimester,” Stern wrote. “A diminished right to abortion would survive, battered but extant.”And yet the end of the viability standard would still have been practically disastrous for abortion access on the ground, as well as for women’s freedom and dignity. This much was elegantly explained by New York’s Irin Carmon, who wrote that attacks from conservatives over the past 30 years have increased the abortion right’s legal reliance on the viability standard, even as developments in pre- and neo-natal care have pushed viability itself earlier in pregnancy. “If a ban on abortion at 15 weeks is allowed for whatever reason, why not draw the line at six?” Carmon asked.Getting rid of the viability standard, but still leaving the right to abortion technically intact, would in practice invite an anarchic scramble, as conservative states rushed to ban abortion as early as possible and push the limit back sooner and sooner in pregnancy. Julie Rickelman, a longtime abortion rights advocate and the lawyer representing Mississippi’s lone abortion clinic in the Dobbs case, put it bluntly: if viability goes, Roe is effectively no longer good law. “If the court upholds this law, it will be discarding the viability line and overruling Roe,” she told Carmon. “That is the key line in the law that has protected people’s access to abortion.”In other words, the best-case scenario was legal chaos, misogynist lawmaking, a diminished right to bodily autonomy for women, and millions more people subject to forced pregnancy.But even these predictions – which pass for “optimism” among legal observers now that the supreme court is held in the chokehold of a conservative supermajority – proved too rosy. At oral arguments in Dobbs on Wednesday, five of the court’s six conservatives showed little interest in maintaining Roe while getting rid of viability. Instead, they were focused on eliminating Roe, and the abortion right, entirely. By the end, it seemed likely that conservatives have a crucial five votes to rule that the constitution does not protect the right to end a pregnancy: Samuel Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.The lone exception among the conservatives was Chief Justice John Roberts, who seemed almost desperate to direct attention to the viability line. Over the course of arguments, Roberts repeatedly returned to the viability question, emphasizing that it was rejected as a possible standard in the initial 1973 Roe decision and only adopted later, in Casey. But none of the other conservatives took the bait.The two “swing” votes – if such an extremely and committedly conservative court can be said to have such a thing – are Amy Coney Barrett and Brett Kavanaugh. In a display of the impotence that has marked his career as chief justice, Roberts was unable to persuade either of them to take up his apparently preferred proposition of maintaining a shell of Roe while gutting the viability standard.Instead, Kavanaugh spent much of his speaking time assuring his colleagues that they need not be bound by Roe’s precedent, listing a long litany of cases in which the supreme court reversed its own prior decisions. Barrett, meanwhile, emphasized the availability of adoption as a supposedly adequate alternative to abortion, at one point asserting that so-called “safe haven” laws, which allow birth mothers to surrender their parental rights and leave their infants in the care of others without punishment immediately after they give birth, offer an adequate remedy for pregnant women who cannot or do not wish to become parents. The idea was that if a woman is pregnant and does not want to be, an acceptable outcome would be for her to gestate and birth a child, and then simply give it away.The hardest-line conservatives, meanwhile, offered even more grim and ominous assessments of abortion as a matter of law, and their sadistic and extremist views give some indication of where the court may be heading in future cases. Both Alito and Thomas referred repeatedly to abortion as “taking a life”, and indicated that they would be open to recognizing fetal personhood. Until now, post-viability abortion bans have rested on the legal idea that the state has an interest in protecting fetal life that overrides a woman’s interest in controlling her own body after that point. But Alito and Thomas suggested that they think that interest belongs not only to the state, but to the fetus itself, and that this interest begins very early. “The fetus has an interest in having a life,” Alito said at one point. “That doesn’t change from the point before viability and after viability.”The suggestion that a fetus might have interests in its own right – interests that can be seen as equal or greater than the interests of the woman carrying it – is a dramatic step in anti-choice jurisprudence, one with dramatic implications for women’s healthcare, freedoms, and access to public life. After Wednesday’s oral arguments, it seems certain that Roe v Wade will soon be overturned. For this court, that’s just the beginning.
      Moira Donegan is a Guardian US columnist
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      Abortion rights advocates vow to fight on after supreme court hearing

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      Abortion rights advocates vow to fight on after supreme court hearingLeaders say they will look to statehouses and lower courts if justices allow undermining of Roe v Wade In the wake of Wednesday’s supreme court hearing in which a majority of justices appeared willing to significantly curb abortion rights, reproductive rights advocates said they would continue to fight in statehouses and lower courts for the right to choose.The supreme court heard oral arguments in Dobbs v Jackson Women’s Health Organization, widely regarded as the most important abortion rights case in nearly five decades.The case before the court pits Jackson Women’s Health Organization, Mississippi’s last abortion clinic, also known as the “Pink House”, against the state health director, Dr Thomas Dobbs. A decision is expected in June 2022.Conservative US supreme court justices signal support for restricting abortion in pivotal caseRead moreMississippi intends to ban abortion after 15 weeks of pregnancy, a move blocked so far by lower courts.While a significant blow to abortion rights is far from a foregone conclusion, questions from the supreme court’s conservative justices on Wednesday appeared to show a willingness to allow restrictions on abortion at 15 weeks and perhaps earlier in a pregnancy.The case also requests the court overturn Roe v Wade, the landmark 1973 supreme court decision that established a constitutional right to abortion and is the only safeguard for such rights in dozens of conservative US states.Under present law, pregnant people have a right to terminate a pregnancy up to the point a fetus can survive outside the womb, widely regarded as 24 weeks gestation. A full-term pregnancy is considered 39 weeks gestation.In a consensus shared across the political spectrum, at least five justices appeared divided over whether to significantly curb or overturn Roe v Wade.Six of the nine justices lean to the right, with three of them nominated by Donald Trump during his one-term presidency. “Congress could fix the issue right now,” said Nancy Northup, president and CEO of the Center for Reproductive Rights (CRR), the organization that represented abortion providers in the supreme court on Wednesday.Although abortion was legalized in 1973 and has been relied upon by women nationally since then, Congress has never affirmed the right to abortion in legislation. That left the Roe v Wade precedent as the principle protection of the option for termination, while anti-abortion campaigners have brought many legal challenges and also pushed laws undermining access to the procedure.“All these bans and undue burdens in abortion care would be addressed by the Women’s Health Protection Act,” Northup said, referring to a bill recently passed by the US House of Representatives. “That would make sure women can access abortion without unnecessary bans.”Thus far, the bill has been viewed as highly unlikely to pass into law because it would need to overcome the Senate filibuster rule, requiring a 60-vote majority in the evenly divided chamber, where the Republicans would oppose it.Joe Biden said on Wednesday: “I support Roe v Wade. I think it’s a rational position to take.”Julie Rikelman, CRR’s litigation director, who argued before the justices, said campaigners would continue to fight if the supreme court went against reproductive choice. “We will continue to make every argument we can in the federal courts, we will continue to litigate in the state courts … we will not stop fighting, because it is just too important,” Rikelman said.Shannon Brewer, the director of the Pink House, said the coming months would be tough, with her providers “sitting and waiting and twiddling our thumbs” in anticipation of a decision.“It was a difficult day for everybody [but] I listened to the arguments and I think they did a great job at representing women today,” Brewer said.Following what was widely viewed as a hearing favorable to anti-abortion forces, conservatives chimed in.“What we want to see is the court do the right thing and overturn Roe,” said Chip Roy, a Republican US representative from Texas. He decried fears over a threat to choice as a “wailing and gnashing of teeth from the left”.Sam Brownback, the former US ambassador at large for international religious freedom under Trump, said it was time to overturn Roe “and let states address the issue”.Overturning Roe v Wade would effectively return the issue to be decided at state level, where swaths of the south and midwest would be “certain or likely” to ban most abortion. Already, several states have banned abortion at six weeks, though all those laws have been blocked by courts, with the prominent exception of Texas.Some reproductive rights advocates remained optimistic.Schaunta James-Boyd, co-executive director of Trust Women, an organization dedicated to providing abortions in underserved states, said her group “look[s] forward to a positive outcome later in 2022”.The pressure to legislate an affirmative right to abortion in states not openly hostile is likely to increase as a supreme court decision nears. While 26 states are “certain or likely” to outlaw abortion if Roe v Wade were overturned, states such as New York and Illinois have worked to protect abortion rights. Polling shows about six in 10 Americans believe abortion should be legal in “all or most” circumstances.Meanwhile, the House speaker and California Democrat Nancy Pelosi said: “The House is committed to defending women’s health freedoms and to enshrining into law our House-passed Women’s Health Protection Act, led by Congresswoman Judy Chu, to protect reproductive health care for all women across America.”She added that the supreme court “has the opportunity and responsibility to honor the constitution, the law and this basic truth: every woman has the constitutional right to basic reproductive healthcare”.TopicsAbortionHealthGenderUS politicsUS supreme courtLaw (US)newsReuse this content More

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      Kavanaugh signals support for curbing abortion rights as supreme court hears arguments on Mississippi case – live

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      13:39

      Biden reiterates support for the right to abortion in US

      11.40am EST

      11:40

      Kavanaugh signals support for curbing abortion rights

      10.01am EST

      10:01

      Republicans threaten government shutdown over vaccine mandate

      9.10am EST

      09:10

      Good morning…

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      4.48pm EST

      16:48

      While House Republicans aren’t doing much when it comes to admonishing far-right congresswoman Lauren Boebert for her Islamophobic comments about congresswoman Ilhan Omar, House progressives will be pushing Democrat leaders for action:

      Manu Raju
      (@mkraju)
      House progressives plan to ratchet up calls to strip Lauren Boebert from her committee spots bc of her comments on Ilhan Omar — and will soon go public with a letter to that effect, per two sourcesDem leaders have not made a decision yet on how to proceed.

      December 1, 2021

      4.18pm EST

      16:18

      House Republicans went full high school drama yesterday on Twitter, with Majorie Taylor Greene calling Nancy Mace “trash” and Mace calling Greene “batshit crazy” via emojis.
      This comes because far-right congresswoman Lauren Boebert made Islamophobic remarks about Democrat congresswoman Ilhan Omar, who has since received death threats related to these remarks. Republican congressman Adam Kinzinger called Boebert “trash”, and called out House minority leader Kevin McCarthy for his silence on her remarks.
      It appears McCarthy has finally weighed in – but not directly about the bigoted bullying. Instead, he’s just telling everyone in his party to behave.

      Andrew Solender
      (@AndrewSolender)
      GOP Rep. Don Bacon paraphrases McCarthy’s message on GOP infighting this AM: “Stop it. Quit acting like you’re in high school.”If McCarthy’s private talks w/ MTG don’t work, “at some point, the conference as a whole is gonna be frustrated, speak up… I know that’s bubbling.”

      December 1, 2021

      Andrew Solender
      (@AndrewSolender)
      “I’m not here to be a burden, but at some point you have to defend yourself too” – Bacon on attacks from MTG & co.“We’re not here to get the most clicks, to be TV celebrities. We’re here to govern, and you don’t do that by calling each other names, tearing each other apart.”

      December 1, 2021

      Updated
      at 4.19pm EST

      3.31pm EST

      15:31

      Stacey Abrams announces that she is running for governor of Georgia

      Democrat Stacey Abrams, who many have credited for being among those who helped turn Georgia blue in 2020, has announced that she will be running for governor once again.
      “If our Georgia is going to move to its next and greatest chapter, we are going to need leadership,” Abrams said in her announcement video. “Leadership that knows how to do the job. Leadership that doesn’t take credit without also taking responsibility. Leadership that works hard. Leadership that measures progress not by stats but by our ability for everyone to move up and thrive. Leadership that understands the true pain folks are feeling and has real plans. That’s the job of governor.”

      Stacey Abrams
      (@staceyabrams)
      I’m running for Governor because opportunity in our state shouldn’t be determined by zip code, background or access to power. #gapolBe a founding donor to my campaign:https://t.co/gk2lmBINfW pic.twitter.com/z14wUlo8ls

      December 1, 2021

      Updated
      at 3.33pm EST

      3.24pm EST

      15:24

      More on government funding, the continuing resolution and a possible government shutdown: House majority leader Steny Hoyer, who told reporters yesterday that he planned to pass a CR in the House today, now doesn’t think it’s possible.

      Chad Pergram
      (@ChadPergram)
      From colleague Jason Donner. Hoyer when asked if they could pass the CR to avoid a gov’t shutdown today: “I don’t think so.”

      December 1, 2021

      Chad Pergram
      (@ChadPergram)
      Hoyer on an interim spending bill to avert a shutdown. Says “Schumer and McConnell are negotiating.” He adds “It’s incomprehensible today that we can’t pass a simple CR.”

      December 1, 2021

      3.20pm EST

      15:20

      Whew, a lot happening today. Let’s hop back to Congress, where a handful of Republicans are threatening a government shutdown over the vaccine mandate for the private sector.
      To recap: In September, Joe Biden announced a federal mandate that all companies in the US with 100 employees or more must ensure either that their workers are fully vaccinated against Covid-19 or that they test negative for the coronavirus at least once a week. The deadline for this is 4 January.
      Conservatives across the country have taken issue with this, ranging the gamut of being fully anti-vax to arguing that vaccinations are a deeply personal issue, one in which the government should not be involved. There have been several challenges in courts that have sided against the mandate – the White House has since been urging private companies to act on their own to set their own vaccine mandates, as many have already.
      On top of all this, the federal government runs out of funding on 3 December – yep, two days from now. Congress must pass a stopgap funding bill, also known as a continuing resolution (CR), to prevent a government shutdown that would put hundreds of thousands out of work right before the holidays.
      Since early November, some Republican senators have made it clear that they will not vote for any short-term funding of a federal government with a vaccine mandate. Other conservative members of Congress have since joined in.
      Here’s a quick update on the situation:

      Manu Raju
      (@mkraju)
      Here’s what Sen. Roger Marshall (one of a handful of conservatives who are threatening a brief government shutdown) want before agreeing to a quick vote on the continuing resolution. He told us he wants language in CR that would prohibit OSHA from enforcing vaccine mandate. BUT

      December 1, 2021

      Manu Raju
      (@mkraju)
      Marshall would be OK with a quick final passage vote if there’s an amendment to that effect with a 51-vote threshold. But Ds are likely to insist on a 60-vote threshold. So would he object to a quick vote to pass the funding bill if the amendment were set at a 60-vote threshold?

      December 1, 2021

      Manu Raju
      (@mkraju)
      “We’ll see,” he said. “There’s a long time between now and Friday. But at a minimum, I think at a minimum it deserves a 50-person vote.”At GOP lunch, a number of senators told Marshall and Lee that their goal won’t be achieved if there’s brief shutdown. So I asked him about that

      December 1, 2021

      Manu Raju
      (@mkraju)
      And he said: “Yeah, I think the folks back home want to know how hard we’re fighting for them, that the jobs back home are as important as keeping the federal government open. That’s the hypocrisy up here. It just seems like we have rules for back home that don’t apply here.”

      December 1, 2021

      Updated
      at 3.31pm EST

      2.59pm EST

      14:59

      The Guardian’s David Smith was out front of the supreme court during the oral arguments in the Dobbs v Jackson Women’s Health Organization.
      Anti-abortion supporters waved models of fetuses and held prayer circles, while pro-choice advocates waved signs reading, “abortion is healthcare” and “protect abortion access”.
      Read more here:

      Updated
      at 3.04pm EST

      2.34pm EST

      14:34

      Joanna Walters

      Joe Biden smiled wryly earlier when asked by reporters whether he thought the former president, Donald Trump, put him at risk when Trump had received a positive coronavirus test just three days before the first presidential debate in the 2020 election campaign, according to a new book by former chief of staff Mark Meadows, which was reported exclusively by Guardian US this morning.
      “I don’t think about the former president,” Biden said. That was his only word on the topic.
      Top health official Anthony Fauci said a little later, at the White House briefing, that he had not been aware of that positive test for Trump at that time. Trump subsequently tested negative, according to the Meadows book, but shortly after revealed publicly that he had coronavirus, following which he was admitted to hospital.
      Speaking generally, Fauci said: “If you test positive, you should quarantine yourself.”
      Trump had not done that and had not only stood a few feet from Biden, in person and unmasked, for that first debate, but he continued to travel and hold events in close proximity to people.

      2.16pm EST

      14:16

      Joanna Walters

      Anthony Fauci is continuing to answer media questions at the White House. The top US public health official and chief medical adviser to Joe Biden, said that the molecular profile of the Omicron variant suggests it might be more transmissible than previous strains – and might have a higher risk of evading vaccine protection.
      He emphasized, however, that it is still too early to say what will happen in the pandemic with the emergence of the Omicron variant.
      Fauci urged those who have consistently adopted protection protocols, such as wearing a face mask in indoor settings with crowds, to continue to do so and said those who have stopped such practices should resume.
      Fauci said: “Do the things we have been saying every single day, not just for ourselves but internationally.”
      He said, however, that long term he believes there is “an end game” to the coronavirus pandemic.
      “There is no doubt that this will end, I promise you that, this will end,” he said.
      Fauci has now finished his section of the briefing and left the media room at the White House.

      Updated
      at 3.10pm EST

      2.06pm EST

      14:06

      Joanna Walters

      Anthony Fauci, the director of the national institute of allergies and infectious diseases and chief medical adviser to the US president, has taken the podium in the White House press briefing room.
      He has confirmed what we all just found out – the first case of the omicron strain of coronavirus has been identified in the US.
      “We knew it was just a matter of time,” Fauci said.
      The case was confirmed moments ago by the Centers of Disease Control and Prevention (CDC), the federal health agency, and was identified in California.
      Fauci just said that the case was confirmed by the CDC and the California and the San Francisco health authorities.
      “This is the first case of Covid-19 caused by the omicron variant detected in the US,” said Fauci.
      He said the case involved an individual who returned to the US from South Africa on 22 November and tested positive for coronavirus on 29 November.
      Fauci added that the individual was fully vaccinated but to his knowledge had not received a booster shot. He said the patient has experienced mild symptoms.“We feel good that this patient had only mild symptoms and seems to be improving,” he said.
      He said the patient was isolating and those whom they had come into close contact with had been reached and tested and shown to be negative for coronavirus.
      Fauci reiterated that as many people as possible should get vaccinated and, if they have been vaccinated, get boosted if eligible.
      He told people not to wait to see if there will be a new vaccination designed to deal specifically with variants.
      “Right now I would not be waiting. If you are eligible … get boosted now.”
      It is not yet known for certain if the current vaccines combat omicron, Fauci said. Many experts are optimistic that they provide protection but confirmation of protection or the level of protection are awaited.

      Updated
      at 3.05pm EST

      1.52pm EST

      13:52

      First confirmed case of Omicron Covid variant in US

      Joanna Walters

      The federal authorities have identified the first confirmed case of the Omicron coronavirus variant in the United States.
      We are awaiting a live briefing from the White House from Anthony Fauci, chief medical adviser to Joe Biden and the top infectious diseases public health official in the US, and press sec Jen Psaki. We’ll bring you that.
      But meanwhile, this news is breaking across various wires services and TV news that the Centers for Disease Control and Prevention have the first confirmed US case of Omicron, identified in California.
      The dominant variant in the US at this point is still the Delta strain, which emerged and spread across the country from the summer.

      Updated
      at 3.08pm EST

      1.39pm EST

      13:39

      Biden reiterates support for the right to abortion in US

      Joanna Walters

      Joe Biden gave a simple endorsement of reproductive rights in America moments ago as he remarked after the high-stakes hearing at the Supreme Court in Washington, DC, earlier today. More

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      Justice on the Brink review: how the religious right took the supreme court

      by

      Justice on the Brink review: how the religious right took the supreme court Linda Greenhouse does a fine job of raising the alarm about the conservative conquest and what it means for the rest of us – it’s a pity she does not also recommend ways to fight backLinda Greenhouse’s byline became synonymous with the supreme court during the 30 years she covered it for the New York Times. She excelled at unraveling complex legal riddles for the average reader. She also had tremendous common sense – an essential and depressingly rare quality among journalists.The Agenda review: how the supreme court became an existential threat to US democracyRead moreBoth of these virtues are on display in her new book, which chronicles “12 months that transformed the supreme court” after the death of the liberal lion Ruth Bader Ginsburg and the obscenely rapid confirmation of her conservative successor, Amy Coney Barrett.As others have pointed out, Barrett’s ascension was the crowning achievement of a decades-long project of the American right, to pack the highest court with the kind of people who delight in telling graduating students things like the proper purpose of a legal career “is building the kingdom of God”.Barrett is also the sixth Catholic appointed to the court. Another, Neil Gorsuch, was raised Catholic but now attends the church of his wife, who was raised in the Church of England.Greenhouse describes the Federalist Society as the principal engine of this foul project. Founded in the second year of the Reagan administration to change the prevailing ideology of the leading law schools, its 70,000 members have become the de facto gatekeepers for every conservative lawyer hoping to serve in the executive branch or the judiciary.Most students of the judiciary know that all 226 judges appointed by Donald Trump were approved by the Federalists. But until I read Greenhouse’s book I never knew that every one of the 500-plus judges appointed by the two Bushes also earned the Federalist imprimatur.“Its plan from the beginning was to … nurture future generations of conservative law students” who years later would form the pool from which “conservative judges would be chosen”, Greenhouse writes.She also adds the telling detail that makes it clear that this situation is even worse than it appears. After Gorsuch thanked a Federalist banquet “from the bottom” of his heart, after his confirmation to the supreme court, the then White House counsel, Don McGahn, told the same gathering it was “completely false” that the Trump administration had “outsourced” judicial selection to the Federalists.“I’ve been a member of the Federalists since law school,” said McGahn. “So frankly, it seems like it’s been in-sourced.”Greenhouse’s main subject is the impact on the law of the replacement of a celebrated progressive, Ginsburg, with the anti-abortion and anti-contraception Barrett. A meticulous examination of the most important cases decided during Barrett’s first term demonstrates how the new justice contributed to Chief Justice John Roberts’ determination to “change how the constitution” understands race and religion.The centuries-old wall between church and state is being eroded and government efforts to promote integration – or prevent resegregation – are under steady attack.Roberts’s opposition to important sections of the 1965 Voting Rights Act goes all the way back to his service in Ronald Reagan’s justice department in the early 1980s. As chief justice he made his youthful scorn for the virtues of integration into the law of the land, writing a majority decision invalidating the plans of Seattle and Louisville to consider race to prevent resegregation of public schools. By a vote of 5-4 the court ruled the consideration of race violated the constitution’s guarantee of equal protection.Roberts’s opinion declared that the school systems’ “interest in avoiding resegregation was not sufficiently ‘compelling’ to justify a racially conscious remedy”.For most of the country’s history, the establishment clause of the constitution has prevented the government from “endorsing or coercing a religious practice or viewpoint”, Greenhouse writes, while “the free exercise clause requires the government to leave believers free to practice their faith”.But Roberts and his allies have thrown things upside down, turning the free exercise clause “from its historic role as a shield that protected believers from government interference into a sword that vaulted believers into a position of privilege”.Greenhouse is a woman of convictions. Even as a reporter, she was famous for taking part in a march supporting abortion rights. In a previous book she bragged of contributions to Planned Parenthood. But none of her critics could ever find any evidence that her stories in the Times were slanted by her personal beliefs.That objective stance was entirely appropriate when she was a daily reporter. But book writing is different. After doing such a good job of describing the decades-long rightwing campaign to produce a court whose views are increasingly at odds with the majority of voters, Greenhouse doesn’t endorse any ideas about how to remedy the situation.Supreme Ambition review: Trump, Kavanaugh and the right’s big coupRead moreShe shows no enthusiasm for the idea of expanding the number of seats on the court, which was championed by Pete Buttigieg and others during the 2020 election, and she doesn’t even support the idea that 83-year-old Stephen Breyer should feel any pressure to retire during the current Congress, to make sure Joe Biden can appoint, and a Democratic Senate confirm, a liberal successor.Similarly, Greenhouse never suggests Ginsburg was wrong to stay in office until her death, rather than retire during Barack Obama’s time in office so that she wouldn’t be replaced by someone like Barrett.Unwilling to regulate dark money’s vicious role in our politics, and happy to eviscerate the most basic protections of the Voting Rights Act, the court is increasingly tethered to religious rightwing orthodoxy.Greenhouse does a superb job of describing how we got here. What she lacks is the passionate imagination we need to re-balance an institution which poses an urgent threat to American democracy.
      Justice on the Brink is published in the US by Random House
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      America is at a crossroads. The supreme court may decide which way it goes | Gary Gerstle

      by

      America is at a crossroads. The supreme court may decide which way it goesGary GerstleThe sitting justices face a once-in-a-lifetime crisis of legitimacy that could determine the future of the US Common sense suggests that America ought to reform its ancient constitution. The country, after all, is vastly different from what it was when founded in the 1780s and 1790s. The electoral college may have made sense at the dawn of the democratic age, but now it is an embarrassment, violating the core principle that every vote in presidential contests ought to count the same as any other.Pointed questions suggest US supreme court ready to ease restrictions on gunsRead moreHaving had no experience with the mass democracy they called into being, the framers of the constitution gave little thought as to how best to keep monied interests from corrupting electoral outcomes. And they had no clue about how questions of sex and sexuality would one day convulse their republic. Constitutional amendments passed today could abolish the electoral college, curtail the influence of private (and especially dark) money on politics, and establish a right to an abortion or a broader right to privacy in matters sexual and otherwise.When we ask, however, whether any of these amendments have a reasonable chance of becoming law, the answer is no. The explanation is as mind-boggling as it is straightforward: For all intents and purposes, the constitution cannot be changed. The framers set an impossibly high bar for revision: two-thirds approval for a proposed amendment from each House of Congress, followed by majority approval from three-quarters of the state legislatures. Imagine a vote for Brexit crossing that double threshold. It never would.The US constitution has been amended a mere 27 times across its 230-year history. The meaningful total is actually far less. The first 10 “Bill of Rights” amendments should not be regarded as amendments, since they were part of the original debate and ratification of the constitution in the years from 1789 to 1792. The three civil war amendments (1865-1870) were passed in unique circumstances of internal war, secession, and reconstruction. Two Prohibition amendments that canceled each other out (the first authorized a ban on alcohol and the second repealed it 14 years later) inflate the official count. A few other amendments addressed matters too minor to discuss. The total number of significant amendments passed in non-civil war circumstances, then, rapidly shrinks to single digits: about one every 25 to 30 years. Only during the Progressive era (1900-1920) did Americans find a way to make amendments a useful tool of politics: the direct election of senators, women’s suffrage and Congress’s right to levy income taxes were all written into the constitution at this time. No prior or subsequent generation has figured out how to duplicate the Progressives’ success. Even Antonin Scalia, the great believer in the genius of the constitution as it was originally written, admitted that a constitution written in stone was not serving anyone well.The unchangeability of the constitution is not a new problem, of course. Liberal and conservative jurists across the generations have creatively refashioned the constitution into new shapes to address new realities. Consider Louis Brandeis, who insisted that the constitution be treated as a living document whose principles needed to address matters “of which our fathers could not have dreamed”. Twentieth-century judges, Brandeis believed, were obligated to adapt 18th-century principles to novel circumstances and, occasionally, to discern in those principles as yet unenumerated rights. To think otherwise, Brandeis declared, would be to turn the constitution into a series of “impotent and lifeless formulas”.If the supreme court sometimes sought and achieved moments of Brandeis-style brilliance, it also suffered through periods of hubris or brittleness when justices, in pursuit of a political agenda or a misguided sense of principle, forgot where the ultimate source of their authority lay: not with the statutes themselves, or with framers of the constitution, but with the American people.Between 1789 and 1791, large assemblies of citizens in nine of the 13 states voted both to ratify and modify the document that the framers had handed them. This ratification process gave meaning to the critical preamble to the constitution: “We the people of the United States … do ordain and establish this constitution for the United States of America.” The supreme court must sometimes rule against majority opinion, which can be ill-considered, even tyrannical. But if the court repeatedly ignores or, worse, displays contempt for deep-seated and enduring popular convictions, it risks not just its own authority but that of the entire governing system of which it is part.Two historical examples illustrate this point. The first was the notorious Dred Scott decision of 1857, when Chief Justice Roger Taney and a large majority of justices declared on specious grounds that African Americans, enslaved or free, were not and would never be entitled to US citizenship and thus to constitutional rights and privileges. The outrage generated in the north by this decision hastened America’s descent into civil war.The second moment occurred in the 1930s, when four conservative justices were preparing opinions to strike down two pillars of Roosevelt’s New Deal, the Social Security Act and the National Labor Relations Act. These “Four Horsemen”, as they were known, were opposed by a progressive bloc consisting of Brandeis and two other justices wishing to uphold the New Deal. In the middle sat two moderates, Chief Justice Charles Evans Hughes and Associate Justice Owen Roberts. Had one or both joined the horsemen, they might have plunged America into a second civil war, this one between capital and labor.The scenario of war was not far-fetched. Americans had declared their support for the New Deal by giving Roosevelt a resounding election victory in the 1936; they would not have tolerated the supreme court frustrating the will of the people by striking down the New Deal.To save his legislative program, Roosevelt was threatening to push through Congress a law that would allow him to “pack” the court with his own appointees. Meanwhile, members of the United Auto Workers had occupied several General Motors factories in Michigan, forcing one of the world’s most powerful corporations to shut down production. Staying for six weeks, the “sit-down” strikers dared mayors, a governor, judges, and a president to call in the police, national guard, or US military to evict them.At this moment of industrial confrontation and looming political crisis, both Hughes and Roberts signed on to two critical decisions that secured FDR’s New Deal. Roberts insisted in subsequent years that jurisprudential evolution, not political pressure, had shaped his decision. Hughes struck a different pose. He seemed to understand that the judiciary, though independent, was part of a political system established to make the people sovereign. And that at certain crucial moments, the will of the people had to be honored. If this could not be done by constitutional amendment, it would have to occur through some other means.The supreme court today faces another critical test of its legitimacy, as it prepares to deliver pivotal rulings this year on abortion, gun rights, and government funding for religious schools. It is likely that important “right to vote” cases will soon come before the court as well. The court must render its rulings in circumstances that have already seriously damaged its reputation. I am referring, of course, to the true steal in American politics: not the presidential election of 2020 but Mitch McConnell’s hijacking of two supreme court appointments to achieve the GOP’s 40-year quest for an impregnable conservative majority. The beneficiaries of that steal – associate justices Neil Gorsuch and Amy Coney Barrett – have given conservatives their largest majority on the court in 90 years.Will this court, and its swollen Republican majority, succumb to the Taney temptation in Dred Scott, and attempt to settle divisive matters once and for all in ways that suit the wishes of their most fervent supporters? Or will the court follow the Hughes path and recognize that this is a moment when considerations of the American people’s “general welfare” must enter judicial deliberations?Chief Justice John Roberts has shown himself to be a Hughes man, able to put country before party (as he did in his critical vote upholding the Affordable Care Act). But McConnell’s machinations have removed control of the court from Roberts’s hands. Clarence Thomas, Samuel Alito, and Neil Gorsuch seem implacable in their conservatism. The progressive caucus of Stephen Breyer, Sonia Sotomayor, and Elena Kagan is too small to accomplish anything on its own, even with Roberts as a sometime ally. That leaves the future of this court in the hands of Barrett and Trump’s third appointee, Brett Kavanaugh. Does either have the integrity or vision to move the court and the country to a better place? We shall see.
      Gary Gerstle is Mellon Professor of American History at Cambridge. His new book, The Rise and Fall of the Neoliberal Order, will be published in April. He is a Guardian US columnist
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