While the U.S. Supreme Court is poised to exert a minority tyranny over the majority of Americans who support keeping Roe v. Wade abortion rights, Sen. Mike Lee and Fox’s Ainsley Earhardt did their best to demonize those opposing its overturning.
Lee appeared on Fox & Friends this morning to promote his new, re-election-timed book apparently designed to demonize any efforts to expand the Supreme Court (he worked in the book's title many times throughout the discussion).
Lee began by celebrating the looming decision that will likely take away the right to abortion, a right women have held for 50 years. He said, “the moment they overturn Roe v Wade will be a good moment.” Then to drive home his desire for the minority of the right to clamp down on the majority, he added, “It’s concerning to all of us that this is what the left is trying to do. The left is trying to delay the decision. The left is also trying to isolate those justices who might be inclined to sign on to Justice Alito’s opinion, which is correct.”
Earhardt has claimed to aspire to being a “tough journalist” who’s “not in the tank” for anyone. But she couldn’t have behaved more like a mouthpiece for the anti-abortion right. She never mentioned that the majority of Americans think the U.S. Supreme Court should uphold Roe v. Wade. Instead, she did her best to paint those who support those rights as dangerous, radical leftists.
“Who do you blame for the intimidation and the violence and all these protests?” Earhardt “asked.” Anyone familiar with Fox News knows this was little more than a prompt for a round of demonization of liberals, while pretending she had nothing to do with provoking it.
Lee knew his cue. “I blame the left. I blame political activists on the left, including politicians," he said. "I blame those people who are encouraging people to show up at the homes of individual justices. In fact, I described this. I predicted some of this in my book, (he repeated the title), that if and when the Supreme Court got around to overturning Roe v Wade, there’d be an effort to delegitimize, threaten, harass, intimidate those justices signing on to it, perhaps showing up at their homes. That’s in fact what they’ve done.”
Lee moved on to target specific Democrats: “I also blame those like Elizabeth Warren who are threatening to expand the court, to pack the court, to add additional seats so that President Biden can recreate the court in his own image. They despise the court because the court doesn’t kowtow to their leftist agenda.”
Earhardt murmured her approval: “Mmmhmm.” She did not tell her viewers that the protests have mostly been peaceful, The Washington Post noted, “except for a few skirmishes between abortion rights and antiabortion activists.” Nor did Earhardt mention that Donald Trump recently promoted a post on his social media platform which stated, “Civil war.”
Instead, “Pro-life” Earhardt named and posted photos of six officials who say they won’t enforce abortion restrictions, thus deliberately endangering them. She “asked,” “Wouldn’t that be illegal not to adhere to the laws that the Supreme Court passes?” Earhardt the “journalist” either couldn’t be bothered to find that information herself or she knew the answer and was only looking for more hate and divisiveness from Lee.
If the latter, he must have disappointed her at that moment. “All it’s doing is saying that the federal courts aren’t going to make these policy decisions,” he said.
The Supreme Court is now “emboldened to wreak even more Constitutional havoc in the future,” former judge and legal journalist Bill Blum writes in his argument for expanding the court in Common Dreams. “They are armed with the power of judicial review, which permits them to overturn popular legislation and prior precedent decisions at will. And with only occasional lapses, they adhere to the doctrinaire legal philosophy of "originalism," which asserts that the answers to contemporary questions are to be found by guessing what the Constitution's language meant to its Framers and readers in the late eighteenth century.”
“Tough journalist” Earhardt didn’t mention any of that either. That’s probably because the 18th Century is exactly what segregation-defending Earhardt and the rest of the Fox News GOP want to turn the country back to.
You can watch the anti-democratic propaganda below, from the May 24, 2022 Fox & Friends.
First: the notion of “originalism” that the 5 Far Far Right Wing extremists on the Supreme Court are citing is not the actual philosophy. It’s an aberration of that philosophy that was developed by Robert Bork in the 1970s. Actual originalism is just a way to learn the context behind a law that was written at an earlier time. For example, originalism is what helps us study the 2nd Amendment and its discussion of a well-regulated militia, so that we can understand why during a time without a fully standing army, there was a concern to make sure that citizens could help defend the Republic from what had been constant threats from both within and without. Bork corrupted this notion to mean that rather than learning context, the purpose now is to say that the ONLY way to apply a law is in the manner exactly prescribed in 1789. Which of course ignores over 200 years of history since then. It denies the idea of a living, breathing Constitution and substitutes the image of a document frozen in concrete that can only be interpreted by holding a new Constitutional Convention and rewriting it. (I also note that the purveyors of this false version of “originalism” are careful to ignore the concept of case law. Whenever someone asks about the right to privacy or anything else, they jump to “Where is the exact language for that in the Constitution?” And they could save themselves the time by reviewing literally mountains of case law that discuss exactly where they can find that material, if not just in the 9th and 10th Amendments.) And this approach is taken so that angry Right Wingers can then dismiss any jurisprudence they don’t like from the past 60 years. Which is their actual purpose.
The situation we now see is an unfortunate but inevitable one that angry Right Wingers have carefully spent decades molding. This goes all the way back to 1969, when Richard Nixon took office and replaced Earl Warren and Abe Fortas with Warren Burger and Harry Blackmun. Blackmun may have turned out to be a far more reasonable person than Right Wingers had hoped, but we must remember that both of the Minnesota Twins were solid Republican judges, which was the road that the Right Wing wanted to take the SC as soon as they could. When the Nixon years only gave them Rehnquist and Powell as reliable Right Wing votes, the Republicans regrouped with the “litmus test” of the Reagan years. And when this test turned out not to be rigorous enough to screen out even solid Republicans like O’Connor and independents like Souter, they simply outsourced the selection to extremist groups like The Federalist Society and Heritage Action. For the past 20 years, the Republicans have been loading up the courts whenever they could with extremist idealogues hand-picked by those groups to tip the entire judiciary far to the Right. They’ve also benefited from four separate presidential elections where Dems simply did not show up in the numbers that were required to win: 1968, 1988, 2004 and 2016. Each of those elections had dire consequences for the judiciary and the Supreme Court. 1968 could have resulted in William Brennan being named Chief Justice. 1988 could have allowed Thurgood Marshall to step down in honor and be replaced by a worthy successor rather than the slap in the face that happened with Clarence Thomas. 2004 could have seen Breyer or Ginsburg named Chief Justice and would have avoided the disaster of Alito. And 2016 was the most tragic of all, as we have seen. I also note that any time the Republicans did not have the majorities, they worked to gum up the process so that Dems had a monumental task getting judges through, and were almost totally blocked for much of the Clinton and Obama presidencies. It was for that reason – the constant obstruction – that Harry Reid was forced to adjust the rules to at least fill some lower court seats in 2013 and 2014. The GOP of course took full advantage of that and expanded that change to allow them to ram all their choices through without a single Dem vote, including for the SC.
I must note the sinister tone that Earhardt takes after she deliberately doxxes and endangers the state officials she clearly dislikes for their temerity in refusing to attack the women of their respective states. She “just asks” “wouldn’t that be illegal not to adhere to the laws that the Supreme Court passes?” Now, she’s stated it badly and Lee immediately corrects her on the semantics, but she’s obviously saying that everybody better obey what this new Far Right Supreme Court says or else. Interesting that she and Lee and the rest of the Right Wing didn’t have that approach over the past 60 years and in fact celebrated people like George Wallace for standing up for segregation in open defiance of the Supreme Court at that time. But that was when angry Right Wingers hadn’t packed the courts yet. Now that they’ve played their long con over the past several decades, they want to rub everyone else’s noses in the dirt.
I also find Lee’s snide and smug tone truly scary when he tries to celebrate the history of having nine Supreme Court justices and accuses everyone else of not respecting the Court or trying to remake it in Biden’s image. In reality, angry Right Wingers have spent several decades remaking the entire judiciary in their own image, and thanks to lower turnout in key elections, some added arm-twisting to get justices like Kennedy to resign on schedule and lucky timing in the retirements of Brennan and Marshall and the death of Ginsburg, they now have a 6-3 hammerlock of Far Right extremists on the highest court, with 5 of the 6 being so far to the Right, it’s difficult to see them from the centerline. I note that when angry Right Wingers in the Senate viciously refused to even have a hearing for Merrick Garland in 2016, they repeatedly opined in public about how the Supreme Court did not necessarily need to have nine justices. Lee was one of those voices, as was Ted Cruz. Cruz went so far as to say that he would refuse to confirm any Supreme Court appointments of a Democratic President going forward, and sneered that the Supreme Court could function just fine with only 8 or even 7 justices. They didn’t discover their love for the number 9 until Donald Trump squeaked through in 2016 and they were able to ram the most extreme ideologues on.
We must also challenge the false narrative that Earnhardt and Lee are promulgating about “violence” being “threatened”. That is a boldfaced LIE and it must be rebutted. In reality, we have had peaceful protests to what is about to happen to women’s rights – and the only problems to have erupt have been escalated arguments caused by angry Right Wingers trying to disrupt the protests. We should remember that public officials have long had to face members of the public both outside their homes and in public places, and so long as those interactions are peaceful, there is nothing wrong with them. If the protestors are on public property, their right to express their opinion peacefully is actually protected by a prior Supreme Court decision. (Let’s keep in mind that the current SC is likely to overturn that precedent along with all the others the Right Wing dislikes…) Let’s remember that the actual violence we have seen in the area of women’s rights has come from angry Right Wingers who have regularly tried to intimidate women trying to enter reproductive health clinics, who have regularly threatened the doctors and staff on those clinics, and who have repeatedly murdered doctors from those clinics. For Earnhardt and Lee to play games about this and pretend that peaceful protestors are the equivalent of the Randall Terrys of the world is despicable.
Let’s also take a real look at the vicious Alito opinion that was leaked at the top of this month, and who would have leaked it. Earnhardt and Lee want you to believe that this was somehow a “far left clerk” or a “left wing justice”. Which is nonsense for multiple reasons. First, there are no “far left” people at the Supreme Court these days. The last actual Left Wing justice we had was Thurgood Marshall. Ruth Bader Ginsburg was a reliable liberal, but a close look at her rulings shows that she was never “Far Left” and she did not pretend to be. Similarly, Justice Sotomayor is not “Far Left” – she’s just a reliable liberal, and frankly not as liberal as Ginsburg. Kagan and Breyer and Jackson are centrists. Kagan is proud of her membership in The Federalist Society, which should be at least one indicator for all the angry Right Wingers who keep trying to spin her as something she is not. (I note that the Right Wing held her out of the judiciary for a decade by refusing to even hear her nomination during Clinton’s presidency, when she’d been named for a slot – the GOP ignored it and rammed a Far Right idealogue onto that bench in the early 2000s while Kagan went back to the private sector for over 10 years before President Obama named her to the SC.)
Let’s remember that NO clerk working at the Supreme Court would be involved in leaking any document under any circumstances, regardless of their political leanings. Because the clerks are sitting under a massive debt burden from law school and are frankly happy to be at the Supreme Court with the most plum position they could have gotten, and which will open doors for the rest of their careers. It’s also nearly impossible that any of the non-Right Wing justices would have tried to leak this. Breyer would never do anything like that, and Sotomayor and Kagan know both that they need Roberts to get anything done and that there is no point trying to reach to the 5 Far Far Right extremists. Alito, Thomas, Gorsuch, Kavanaugh and Barrett have made their feelings clear on the issue of women’s reproductive rights, and it’s a mystery why any angry Right Winger suddenly thinks anyone would be confused about that.
Which takes us to who would have had a motivation to leak this opinion. If it really was the “evil liberals” that Lee and Earnhardt are trying to blame here, why would they leak an opinion that’more powerful coming out closer to November? If Alito’s draft is what we’re getting (and it looks like it is), then what do “evil liberals” gain by leaking it now and sapping any energy or momentum that would come from the reveal happening closer to Election Day? And if the final opinion is going to be less extreme than the truly mean-spirited language Alito inflicted in the draft, wouldn’t a leak of the more extreme early version wind up making the “evil liberals” look like they jumped the gun? On the other hand, what if angry Right Wingers at the Supreme Court or near it are concerned that Alito’s draft is being weakened in their view, or are concerned about whether they can keep their brethren in line? In that case, an early leak of the early draft would be a way to lock the justices in their positions and make sure the final opinion is as extreme as possible. It’s still not a clerk, and I would doubt any justice but Thomas would do this.
On the other hand, Ginni Thomas has an unfortunate track record of this kind of behavior, particularly in support of extreme positions. It would not be a surprise to find her fingerprints on the photocopy that was sent to Politico. I note that all the other sources who have talked to the press have been on the Far Right, and each has repeated the same information – that Alito has the 5 judge majority that allows him to write this opinion and it isn’t changing, and that Roberts preferred the more incremental approach of allowing the Mississippi restriction to stand without outright tossing Roe in the trash. (Granted, even that approach would effectively kill Roe if we’re being honest – but Alito’s approach is so openly vicious that one can sense his glee at finally getting rid of this precedent.)
Based on what we’re seeing here, we’re looking at a 5-3-1 decision, with the Dem Justices submitting an infuriated but impotent dissent, Roberts issuing a partial concurrence and partial dissent where he agrees with the majority on principle but disagrees with their approach, and with Alito and the 5 Far Far Right extremists happily dancing on the grave of not only Roe v Wade but multiple other precedents since stare decisis no longer holds. (Of course, angry Right Wingers will now demand that everyone hold to THIS decision under stare decisis, rather than acknowledge it as the result of their gaming the system as they did with the Heller decision.) We’re also looking at a fairly dire situation for women across the United States who do not have the means or option to travel to other states or countries to receive treatment. I note that multiple Red States are now openly inflicting laws that not only repeat the vigilante enforcement fun of Texas’ SB8, but are also making medication illegal as seen in Texas’ SB4. Meaning that women are going to have to find someone to bring them medication in violation of these state bans, and in many cases they will have no way of knowing whether the medication is legitimate. Which is how we get to a 21st century coat hanger, sadly.
Brian correctly notes that angry Right Wingers are about to inflict their minority will upon the majority of Americans, regardless of what the majority thinks or wants. I would respond that the Right Wing does not care what the majority thinks or wants. They’re committed to getting their way regardless of the majority. They played a long game over 50 years to get to this point, and now they have their majorities where they want them. So yes, they’re going to toss out every precedent they don’t like – whether it’s Roe, Obergefell, Loving, Brown v Board, whatever. To their thinking, that’s the way it should be.
For the rest of us, this is an extremely tragic moment in American history. And perhaps the most tragic thing about it is that it could have been avoided. As for what we can do moving forward, the most important thing is for people to learn the lessons of how this happened, so we don’t repeat the mistake again. We’ll have to see more Dems voting in state elections to try to change their state legislatures. Many Dems will need to move their residences to outwit the gerrymandering if they are to have their voices heard. Many Dems will need to do a lot more work to make sure they can vote in order to counter the voter suppression laws. And it will be difficult. But it isn’t impossible. And hopefully in another 20 years, we’ll be able to begin to fix the damage. Unfortunately, we’re going to see a lot more unpleasantness like the Dobbs decision between now and then.