RBG Rollover
Yesterday when I went out in the car to run an errand, MSNBC came on through my Sirius Satellite radio and I found myself in the middle of a live Q&A between the Supreme Court justices and the Attorney General of Mississippi (Scott Stewart) and the U.S. Solicitor General, Elizabeth B. Prelogar. While Stewart’s responses to justices’ questions were competent and articulate (as much as I disagreed with most of them on principle), the commentary and advocacy by General Prelogar was amazing. She clearly had the tough job of both defending the positions of Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) and the importance of maintaining the precedents established by these landmark cases, but she had to be a factual expert on the arguments pro and con abortion and women’s right to choose. I don’t think I’ve ever heard such a live SCOTUS session and didn’t think live coverage was even a possibility. I seem to have missed the fact that COVID caused them to allow such live audio coverage (still no video allowed) since May, 2020. I am also now aware that SCOTUS has been recording and making available oral arguments after the fact since 1955. If you ever get to thinking that lawyers are just bullshit artists (something we have probably all thought at one time or another), just listen to the back and forth at the Supreme Court to reassure yourself that there are brilliant and talented people in that profession as well. I must admit that I found the Solicitor General, a position often referred to as the tenth justice, given its important standing in the Court, most impressive.
General Prelogar is a young woman of forty-one who hails from Idaho. She started taking college courses at age twelve and went to Emory where she graduated summa cum laude in English and Russian and almost got a Rhodes Scholarship. She then got a Masters at the University of St. Andrews in Scotland (where Prince William and Kate Middleton met) in creative writing before going on to Harvard Law School where she was magna cum laude. She clerked for Merrick Garland, Ruth Bader Ginsberg (RBG) and Elena Kagan. She also, quite notably, taught a course at Harvard Law School on the subject of Supreme Court and appellate advocacy. Thus, it was no accident that she was a superstar yesterday representing the majority (58%) of the Unites States population that support the upholding of Roe v. Wade’s woman’s right to choose versus the 32% of the population (a good many apparently in Mississippi) who want to see Roe v. Wade struck down.
The Mississippi AG has his chops as well being a graduate of Princeton and Stanford Law School, where he was Executive Editor of the Stanford Law Review. While mostly practicing law at the top-notch litigation firm Gibson, Dunn & Crutcher, he also served a one-year term as a law clerk for Justice Clarence Thomas. In some ways, he and Ms. Prelogar were almost predestined to come up against each other on the floor of the Supreme Court on such a monumental and culturally defining issue as Roe v. Wade.
What should bother us all, apart from whatever arguments we tend to personally favor in this very controversial issue, is that the conservative side of the bench has taken a no-holds barred approach to their attack that seems almost emblematic for the Republican approach being taken about almost everything in this day and age. This burn-down-the-house war of attrition is a moral scorched-earth approach that may leave us as a society and as a nation bereft of the norms that have been so preciously guarded by almost all sensible people over the past 250 years. To start with, General Stewart (how appropriate that it is conventional to give these positions seeming military ranking status) used one brief to secure the Supreme Court’s agreement to hear the case wherein he stated that this was specifically NOT an attempt to overturn Roe v. Wade. He then resubmitted the brief after the case was accepted and very explicitly restated Mississippi’s position as one determined to see that Roe v. Wade be overturned. This was so blatant that Chief Justice Roberts, the lead conservative on the court (though not the most conservative Justice by quite a stretch) called it an outright “bait and switch” tactic.
In addition, each of the Trump SCOTUS appointees, Gorsuch (appointed 2017), Kavanaugh (appointed 2018) and Coney Barrett (appointed 2020) in their own way said or implied to Congress as part of their approval process that they did not see Roe v. Wade as something that they opposed or sought to overturn. Gorsuch called it “the law of the land” and Kavanaugh specifically said it was “settled precedent”. Coney Barrett had a harder time letting her Pinocchio nose loose because of the late (as in not initially disclosed to Congress) submission of an ad she signed while at Notre Dame Law School that called Roe v. Wade infamous and wrong. But she did say that nothing about Roe v. Wade meant that it should be or would be overturned.
This tiptoeing through the Congressional hearing minefields is not new or limited to Supreme Court nominees, but it is extra concerning in such candidates for some obvious reasons. First of all, as we all know, SCOTUS appointments, like all Federal judicial appointments, are for life and while subject to impeachment, rarely suffer such confrontation. Indeed, only fifteen Federal judges have ever been impeached and only eight convicted and removed. That is out of 870 judges that exist under Article III of the Constitution, which grants them that lifetime right. That all means that the highest level of “honesty”, both literal and intentional should be expected.
The other reason this should all concern us is that these positions and rulings they make impact everyone’s lives in very real ways. The power that these people have over us is both long-lasting (establishing or over-ruling precedents like Roe v. Wade are very long processes, on the order of fifty years) and very impactful, literally bearing a life-or-death level of importance. Playing cute with Congressional questioning, which is a surrogate for the questioning by the electorate is not fun and games and not something to be sly and tricky about. It requires abject honesty of the highest order and these people need to be held accountable for either ignoring their own statements of even changing their mind frivolously or by design.
The cable news pundits are all over this Roe v. Wade issue to be sure. Everyone has a take on what it will mean if the Uber-conservative Alito/Thomas position on Roe v. Wade prevails versus the Chief Justice Roberts conservative, but half-measure approach wins out, or if by some fluke the Kagan/Sotomayor/Breyer upholding of Roe v. Wade should prevail. The consensus implies that some weakening or overruling of Roe v. Wade is likely and then the fun really begins as it is suspected that Democrats will seize on the issue and ride it constantly over the next year as their primary banner for why Republicans cannot be allowed to take over Congress because they will dismantle fifty years of inalienable rights for women, then LGBTQ, people of color and God-knows who else in the coming years. The denuding of liberty and democracy will truly be upon us.
If RBG were alive, none of this might be occurring, but it is also safe to say that her realistic outlook would not have allowed her to be totally surprised to see the attack occurring. RBG is rolling over in her grave wondering why the nation would allow this minority to trick and rule the majority while undermining the very foundation of the court she sat on with reverence for thirteen years.