IMMEDIATE RELEASE 23 September 2020
Today’s Events in Historical Perspective
America’s Longest-Running Column Founded 1932
As the ship of state turns to starboard
By Douglas Cohn and Eleanor Clift
WASHINGTON – Led by Senate Majority Leader Mitch McConnell, Republicans long ago came to believe the only way they could change the course of America was through the courts. Now, with the passing of Associate Justice Ruth Bader Ginsberg, they are on the cusp of success on such issues as abortion, Obamacare, voting rights, and others.
Republicans have the votes in the Senate to confirm a new justice to fill the seat she held for the last 27 years. Before a Senate hearing is even held, we know this new justice will vote to overturn Roe v. Wade, the 1973 ruling that legalized abortion rights. And this will only be their opening move as they turn the ship of state to starboard (to the right for non-nautical readers).
How do we know this? Because President Trump said so. He promised in 2016 to only appoint judges who oppose Roe, and he underscored that earlier this month when he released a new list of 20 names of possible nominees who meet his criteria.
When the Senate Judiciary Committee holds its hearing in early October to question Trump’s latest nominee to the Court, there won’t be all that hemming and hawing over “stare decisis” with conservative judges pretending they respect precedent and wouldn’t vote to overturn a ruling that has now been in place for almost 50 years.
The fight over abortion as health care and a woman’s right to choose will be out in the open like never before. Three-quarters of Americans support abortion rights, albeit with various restrictions states have put in place.
The current Supreme Court led by Chief Justice John Roberts, a conservative, plus four other Republican-appointed judges have made access to reproductive services increasingly difficult for women in states led by Republican governors and legislatures.
At the same time, each of these conservative judges is on the record saying they respect precedent with Roe v. Wade. Activists on the right say even if the Court overturned Roe, laws about abortion would revert to the states, where they were before Roe.
Blue states like California and New York would continue to provide easy abortion access while women in red America would face great hardship, “an undue burden,” as retired Justice Sandra Day O’Connor said when she upheld Roe and rejected unnecessary and burdensome restrictions.
However, if the Supreme Court has a 6 to 3 conservative supermajority, it is not too big a reach to suggest they might criminalize abortion for the physicians who provide the procedure and/or the women who undergo the procedure.
It is not only reproductive rights that are at stake. The Affordable Care Act is under threat. Oral arguments are scheduled for one week after the election on a case that originated in Texas and was joined by 21 red-state attorney generals who claim that because the individual mandate to purchase health insurance was removed by Congress, that the entire law should be struck down.
If Trump’s new justice votes as we expect she will, 21 million Americans could lose their health care in the middle of a pandemic, and insurance companies could once again discriminate against people with preexisting conditions, like Covid-19.
Then there’s voting rights, and the controversies Trump is stoking over the November election and the legitimacy of mail-in ballots. Disputes over counting the votes in battleground states could end up in the Supreme Court. This could be Bush v. Gore all over again when the Court handed the 2000 election to George W. Bush in a 5 to 4 decision.
While the three other liberals on the Court wrote they “respectfully dissent,” Justice Ginzburg simply said, “I dissent.” The decision did not deserve respect, it was a one-off, an exercise in raw power.
A pre-existing hallmark of conservatism has been that the Supreme Court is there to interpret, not make, law. We shall see.
Douglas Cohn’s latest books are World War 4: Nine Scenarios (endorsed by seven flag officers) and The President’s First Year: The Only School for Presidents Is the Presidency.
© 2020 U.S. News Syndicate, Inc.
Distributed by U.S. News Syndicate, Inc.
END WASHINGTON MERRY-GO-ROUND
IMMEDIATE RELEASE 23 September 2020