Friday, December 24, 2021

2022 can turn into a political dream come true-Part 2

                                                                                                                                                Dec. 24, 2021 

[In the holiday and year end spirit, if you click on the links, a few of them reveal musical treats.] 

This is the second installment. As with most TV serials, you’re advised to check out the first installment before taking this on, but the intro here will bring you up to speed.

Ted Lasso

I’m pulling out songs and lines to prompt you to believe, as Ted Lasso might tell you to, that the beleaguered Democrats have the opportunity of a campaign-time to take over the Senate with room to spare. 

The conventional wisdom is dire for the Dems. 

The Senate is divided 50-50, and as we approach the new year, West Virginia’s Joe Manchin, one of the Dem’s 50, seems to be saying he’s not backing President Biden’s seminal Build Back Better legislation that contains provisions for universal pre-school, a child tax credit, home care for older Americans and people with disabilities, and climate change initiatives with jobs for displaced workers. Without the legislation, Biden looks like an albatross around the neck of any Dem running for the Senate. 

Then there’s covid. There’s always covid. The fate of covid has come to dictate everything from inflation to world markets, meaning the economy, stupid. It also looms over how families and schools cope, whether college and pro sports get played, how governments are perceived to respond, and the favorability of presidents, which in Biden’s case hovers at about 42%. 

As it is, four incumbent Democratic Senators - Raphael Warnock in Georgia, Mark Kelly in Arizona, Catherine Cortez Masto in Nevada, and Maggie Hassan in New Hampshire - are considered vulnerable in the 2022 elections. If they lose, that would eliminate the razor thin and compromised Democratic majority, and leave the Republicans with a four-vote unified majority. 

In the first installment, I staked out the case that Dems can win Senate races in five states – Pennsylvania, Wisconsin, North Carolina, Ohio and Florida, which would leave the Dems up one critical Senate seat even if they lose all four of the states they now claim, though tenuously. 

I’m about to move to the high wire and suggest that there are five more states ripe for Democratic pickin.’ My invocation to Dem strategists and moneyed interests is don’t become obsessed protecting the back flank of incumbency at the expense of five, make that ten, harder to get gettables. 

It isn’t even 2022 yet and word is seeping out incrementally, as the Washington Post reports, that the now dominant omicron variant of covid appears to be less severe than the delta strain. Is it possible that the iron curtain of covid may lift with enough time before the elections? News on covid will evolve daily for the next ten months until the 2022 elections, so don’t get cocky or complacent. 

One lesson as I roll out this installment’s five additional gettables is that although there is only a year before the 2022 elections, there IS a year before the elections. 

Time enough for covid and inflation to ease, for supply chains to open up, for the enacted $1.2 trillion infrastructure package to be more visible to the public it benefits, for Manchin and Biden to come to terms on how to Build Back Better, for the public to appreciate Biden’s accomplishments, and for the investigations into sedition committed by notable GOP lawmakers last Jan. 6 to bear the fruit that we know is thriving on the vine.

Lotta livin' to do

6. Iowa Incumbent Republican Chuck Grassley still has a lot of livin' to do to become the oldest person to serve in the U.S. Senate. At 88 years old, he’s a few months younger than Democrat Dianne Feinstein of California. Grassley will be 89 as of election day. Feinstein’s seat isn’t open until the 2024 elections, and as a way to keep her campaign committee active, she’s filed paperwork indicating she’ll run again. Both are years behind the bar Strom Thurmond set by remaining Senator of South Carolina until he retired in 2003 as the only member of either chamber of Congress to reach the age of 100 while still in office. Iowa has been slip slidin’ away since Dem. Tom Harkin retired from the Senate in 2014. For 30 years before that, back to 1984, Iowa sent one Republican, Grassley, and one Democrat, Harkin, to the U.S. Senate, and Democratic candidates won every Presidential election but one. When Harkin retired, Joni Ernst won the
Slip slidin' away

open Senate seat and was re-elected in 2020. Iowa bleeds red now, and controls the governor’s office and both state houses, allowing Iowa to engage in voter suppression tactics, as I’ve documented before. Bleak, due in part to a state Democratic Party, whose closely-held secret of ineptness leaked out nationally when they botched the bellwether Democratic caucuses in 2020. Yet, the state party continues to usurp control over the campaigns of Senate candidates. To be seen if they do again. This time, the Dems have a clear internal frontrunner for the nomination to oppose Grassley in former Congresswoman Abby Finkenauer . They also have three other candidates since a fourth withdrew last month. As the year ends, there are 660,000 registered Republicans; 610,000 registered Dems. Active Independents hold the power. They number 576,000. Iowa is red, can you show us some
Roses are red
blue? I don't sleep at night 'cause as a Grinnell alum, I'm thinking of you.

7. Alaska Incumbent Republican Lisa Murkowski has been one of Alaska’s senators since 1980, when her dad left the seat to become governor. She, Susan Collins, and Mitt Romney are the three GOP senators most often mentioned who might be inclined to break the Republican stone wall on legislation. They formally recognized Biden as president, and after all, Murkowski voted to convict Trump of inciting the insurrection at the U.S. Capitol on Jan. 6. For that, in March, she was officially censured by the Alaska GOP Central Committee, which resolved to find a GOP alternative to her in the buildup to the 2022 election. Trump jumped right in and has endorsed a Republican to oppose Murkowski. She’s campaigning as a pro-life Christian. Last year, Alaska voted for a non-partisan primary system with ranked choice voting, in which the top four names on the ballot, regardless of party, advance to the election. That means that on the non-partisan primary ballot, there will be Trump’s hand-picked choice and Murkowski, whom Trump’s candidate has, in Trump-style, dubbed "Biden’s Chief Enabling Officer," and whichever other candidates surface. Ranked choice voting is designed to encourage candidates to run and discourage negative campaigning, a tough challenge when Trump has a bullseye on Murkowksi. To make matters quirkier, Manchin has endorsed Murkowksi all the way from West Virginia presumably over any to-be-announced Democratic candidate. Quirkier yet is that Sarah Palin has floated her candidacy and plans to run…if God wants her to. Oh yes, the Democrats. A Washington Post columnist is staking out the position that a Dem can win, so I won’t be the first. The Dems have many options, the most obvious Al Gross, who lost for the Senate in 2020, though he raised a state record of $19.5 million in funding. His Twitter account self-identifies in part as an orthopedic surgeon and commercial fisherman. Wikipedia heralds one of his achievements as having the first bar mitzvah in Southeast Alaska. Though Alaska is considered a red state and Trump won in 2020 with 53% of the vote, in 2016 he won with only 51% of the vote. In the spirit of ranked choice voting, bring on all comers. This caveat: In ranked choice voting, once the final four candidates from the primary get to the election, the ones with broadest appeal tend to have better chances of winning. As fans of Northern Exposure know, life
Northern Exposure wisdom
is nasty, brutish and short, the universe is a hostile place, and the Declaration of Independence doesn’t promise happiness. I’m going to enjoy this one. 

8. Kentucky Incumbent Republican Rand Paul deserves whatever he gets. He supports a Constitutional amendment limiting Senators to two terms. He’s served two terms. He’s running again. He’s not in favor of self-imposing term limits. That would result in some senators leaving office and others staying. Not fair. Charles Booker, a former Democratic state representative, is seeking to enforce term limits the old fashioned way, by defeating Paul in the 2022 election. Booker ran in 2020 to take on Mitch McConnell, Kentucky’s other senator and defacto leader of the GOP (sorry, Donald) and lost in the Democratic primary. So he knows the campaign territory and the funding lanes. In his first fundraising quarter (Q3 2021), he raised $1.7 million from 55,000 individual donations. Not a bad start. Kentucky is a red state and it’s Mitch McConnell’s state. It’s also a state with a Democratic governor, Andy Beshear. During the recent tornado devastation that pummeled Kentucky, Beshear was visibly empathetic and ever-present. The Louisville Courier Journal featured a photo essay documenting Beshear and the Lieutenant Governor handing out shoes to victims in Western Kentucky, a Republican stronghold. The tornado has thrown Paul into a precarious position. He, like McConnell and Beshear immediately petitioned Biden for federal disaster relief. In Paul’s case, it presented a dilemma because he’d vocally and legislatively opposed relief in many situations, invoking the fiscal conservative mantra that relief funds should be offset by budget reductions elsewhere. For instance, in response to Hurricane Sandy in 2012, Hurricanes Harvey, Irma and Maria in 2017, and even voting against aid for first-responders who answered the call on 9/11. A video of one of Paul’s speeches on the Senate floor is being circulated throughout Kentucky and beyond: "People here will say they have great compassion and they want to help the people of Puerto Rico, the people of
Grinch who stole progress
Texas, and the people of Florida, but notice they have great compassion with someone else's money." In time for Christmas present, Booker’s campaign came up with a clever video, The Grinch who stole Progress.

9. Missouri Incumbent Republican Roy Blunt is retiring. When he announced, he became the fifth GOP Senator to move on. USA Today framed the story this way: Sen. Roy Blunt won't run for reelection, complicating Republicans' bid to retake the Senate. Missouri has become a red state, flaming red in the case of the other senator Josh Hawley, who defeated two-term Democratic incumbent Claire McCaskill to become, at 39, the youngest member of the Senate. Hawley has become a force to be reckoned with. On Dec. 30, 2020, he said he would object to counting the electoral votes for the presidential election and he became the first senator to announce formal opposition to Biden’s election. The day before the Jan. 6 insurrection, he tweeted that while he was in Missouri, “Antifa scumbags” came to his DC home and threatened his wife and daughter. Local police reported that the protests were peaceful. A photo of Hawley raising a fist at the Jan. 6 insurrection has become iconic. Recently, almost a year later, the Kansas City Star’s editorial board published a piece urging the Senate investigative committee to “use every tool it has to explore Hawley’s role in the chaos.” The reason Hawley figures into the 2022 senate race is that he and Trump complicate the GOP selection process in arriving at a standard bearer. Will a Hawley/Trump-oriented nominee emerge from the GOP primary in August, and what homage will be paid in the process considering that Hawley seems to be a more glaring liability for Republicans than Trump? As of the Sept. 30 reporting period, five GOP hopefuls have raised nearly $1 million or more each to run that gauntlet. As for the Dems, McCaskill is not running. "Nope. Not gonna happen. Never. I am so happy I feel guilty sometimes," she’s tweeted. Got it? As with the GOP but without the gauntlet, the Dems have a number of announced candidates. Only one, Lucas Kunce, a 14-year Marine vet, has raised more than $1 million. Another, Scott Sifton, a former state legislator, is getting there. If you can’t show me, it doesn’t mean a thing in Missouri. Hit it, US Navy Band’s Country Current. 
Missouri, Show me
10. Louisiana Incumbent Republican John Neely Kennedy is a sanctimonious and unapologetic embarrassment. He was one of six Republican senators who voted to sustain an objection to Arizona's electoral votes presented by Ted Cruz and Rep. Paul Gosar during the counting of electoral votes last January. His recent interrogation of Saule Omarova, Biden’s nominee to serve as Comptroller of the Currency, was hilarious in how inane he chose to be. You have to watch it to believe it, and pay attention to how Omarova managed to hold back her reaction to how bizarre his line of questioning, in which he addressed her as comrade, was. Bring back Senator Joe McCarthy, Joseph Welch and the call for basic decency. Louisiana uses a unique election system, often called the jungle primary, in which all candidates
Louisiana
run in one election regardless of party affiliation. If a candidate gets more than 50% of the vote, they win. If not, the top two face off. Louisiana is a deeply red state. Trump won with nearly 60% of the vote. Yet it has a two-term Democratic governor in John Bel Edwards. So there’s hope. Luke Mixon, a political newcomer, has announced he’ll take on Kennedy. At this point, Mixon is the hope. Kennedy is the embarrassment. Louisiana, Louisiana. Your time to wash him away, your time to wash him away. 



 #####

Tuesday, December 21, 2021

2022 is a political dream come true

 

                                                                                                                                              Dec. 21, 2021 

[In the holiday and year end spirit, if you click on the links, a few of them reveal musical treats.]

Democrats, I’m pulling out every cliché, song, and line to inspire you. 

The elections of 2022, less than a year away, provide all the opportunity to take over the Senate with room to spare. 


I’m going to dispense with the palpable negatives in this one paragraph because I don’t want to dilute the inspirational message below. Sure, President Biden’s favorability of 42% or so is alarmingly low. Inflation is through the roof. The omicron variant has a stranglehold on the markets worldwide. You’d hardly know the economy otherwise is recovering. Covid has run amok again, thanks to omicron and Republican-induced vaccine resistance. The political right knows how to take advantage of big and little lies relentlessly. The Democratic Party can’t hold its own. West Virginia’s Joe Manchin, a Democrat, shows all signs of being smugly content to make Biden’s first term a legislative failure. Historically, the political party of first term presidents gets whooped in the first off-year elections. Four incumbent Democratic Senators - Raphael Warnock in Georgia, Mark Kelly in Arizona, Catherine Cortez Masto in Nevada, and Maggie Hassan in New Hampshire - are considered vulnerable in the 2022 elections by many pundits. If they lose, that would eliminate the razor thin and compromised Democratic majority, and leave the Republicans with a four-vote unified majority. That’s plenty to kill the spirit. 

Democratic Party, you cannot let that happen. The American public and the world deserve better, need better, and ultimately must demand better. To rally the masses, I’m pulling out one cliché, song, and line after another. 
Accentuate the positive


There are ten states with potential flips to Democrats, according to the Dream Team of Jack Doppelt and his motivational delusions. 

1. Pennsylvania 
Incumbent Republican Pat Toomey is retiring. The Dems have a number of attractive candidates in the offing. The GOP has Dr. Mehmet Oz, frequent guest on Oprah before he started his own show. As an influencer doc, he’s promoted hydroxychloroquine to fight covid and dietary supplements and foods that falsely promise weight loss. The Trump-endorsed candidate withdrew after his estranged wife, accused him of abuse. Biden carried the state in 2020. Oz is polling well and we know celebrities have the name
Wizard
recognition to win. So..we’re off to see the wizard, the woeful wizard who’s Oz, we hear he is a whiz of a wiz if ever a wiz there was, because, because, because, because, because of the woeful things he says. 

2. Wisconsin 
Incumbent Republican Ron Johnson is a doofus of the highest order. In 2016, he was reelected with 50.17% of the vote, so he’s vulnerable. He rejects climate change, says he doesn’t when backed into a corner, also says that scientists who attribute global warming to human activity are "crazy" and that climate change is "bullshit." He touts debunked covid remedies, like mouthwash, and favors a move that would allow the
Duh Duh Ron Ron
Republican-controlled state legislature to take over the administration of Wisconsin elections. Most glaring and pronounced, he sticks with the redrock belief that Trump won Wisconsin and the election. Because the state legislature is GOP-controlled and passes voter suppression bills, Wisconsin is often mischaracterized as a red state. Johnson is the only statewide-elected Republican in Wisconsin. He’s served two terms (beating Russ Feingold both times) and is being coy about if he’ll run again. Someone told me that his name was Ron, duh duh Ron Ron, Duh duh Ron Ron. That’s Crystals clear. At last count, there were more than a dozen Democrats raising money for the race. Count them. See the money trickle away. Dems, keep your eyes on the prize, and remember the only thing the Dems do wrong is stayin’ in the wilderness too long
Keep your eyes on the prize


3. North Carolina 
Incumbent Republican Richard Burr is retiring. The Dems appear to have their act together. This week, one of the prospective candidates withdrew, leaving a clear path for Cheri Beasley, a former state Supreme Court Justice. The GOP is divided between two candidates, one supported by Trump. I view the recurring scenario of a Trump candidate vs. an outlier within the GOP as the under-recognized wild card for 2022. How will they avoid a brawl when a mean-spirited puppeteer, who neither forgives nor forgets, is pulling strings and dangling his pride? How will the GOP recover after the primary? Beasley is African American in a state whose population is about ¼ African American. Over the past ten years, by census data, the state’s population grew by 17%; the black population by even more. In 2020, the turnout for Black votes overall was 68%, according to the state’s Board of Elections. That can go up. As it was, nearly 20% of the 2020 vote was African American. In my mind, I'm countin’ Carolina. Can't you see the sunshine? Now can't you just feel the moonshine? 
Countin' Carolina

Incumbent Republican Rob Portman is retiring and Trump needs to be heard. Another arena for the under-recognized wild card. Ohio is textbook. A conservative organization, Club for Growth, has been running ads attacking one of the GOP Senate candidates, J.D. Vance, by using footage of him from 2016, when he described himself as a “Never Trump guy” and called Trump an “idiot,” “noxious” and “offensive,” according to Politico. Trump, got that? Club for Growth is running the ad because it’s backing a different conservative. Vance is running as a pro-Trumper, and the ads make Vance look hypocritical. Trouble is for Trump, it makes him look bad too. That is not ok. Trump wants the ad killed. Friction afoot in Ohio. The candidate for the Dems will likely be Tim Ryan, a Congressman who represents a working-class district in northeast Ohio and has been re-elected nine times. Here too, it looks like a Democratic Party, once the primary is over, can be unified and in a position to support a respected lawmaker. Then again, Trump won Ohio in both 2016 and 2020 by 8 points. That’s a lot. However, there’s Sherrod Brown, the other Ohio Senator who’s a Democrat. He was re-elected by 6 points in 2018. I call that a historical draw. Time to drum up some Ohio state fight. Come, on Ohio. Smash Thru to Victory, Dems. We'll cheer you as you go. Our honor defend for we'll fight to the end for old Ohio
5. Florida 
Incumbent Republican Marco Rubio is a formidable sleeze. GOP Governor Ron DeSantos is igniting the political right and toting Rubio with him. As in 22 other states, the GOP has a trifecta, controlling the governor’s office and both houses of the state legislature, and they know how to use it. In 2016, Rubio announced he wouldn’t run for a second Senate term. He ran for President and dropped out when Trump beat his butt in the primary in Rubio’s home state. Rubio got 27% of the vote. What to do? Change his mind and run for Senate re-election. He won. Rubio and DeSantos are both mentioned as presidential material for 2024. But first, 2022…by two years. Both Rubio and DeSantos are running for re-election at the same time. Who’s to say if potentially divided loyalties, efforts and fundraising will affect the GOP or the Dems more. The punditry is primed to paint the state red. Rubio has sharpened his campaign message to the old and tired, running against Biden and his “Build Back Socialist agenda." Rubio's likely opponent is US Rep. Val Demings, who served as one of the seven managers in the Senate impeachment trial of Trump, though there are about ten other Dems in the hunt. Rubio is targeting Demings…and Biden, as his Facebook page makes clear. 

X A champion of Biden’s Build Back Socialist agenda 
X Called plans to defund the police ‘very thoughtful’ 
X Described a violent riot as a ‘beautiful sight' 
X Supports illegal immigrants voting in our elections 
The Real @ValDemings is too radical for Florida. 
https://floridianpress.com/.../rubio-says-floridians.../ 

Florida, is this really how you roll? Is this is how you do when the world turns ugly, proud to be young, stick to your guns, love who you love? 
This is how we roll
Each of the five races is a statewide, or local, example, and should stand alone, if there’s guiding truth in the overused line commonly attributed to Tip O’ Neill, former Massachusetts Democrat and Speaker of the House, that “all politics is local.” 

If that were the case, there wouldn’t be so much handwringing about Biden, and Rubio wouldn’t be milking it. But of course, it’s not the whole story.

Biden and the Dems need to message much more effectively so that when the clock turns into election year 2022 in a few weeks, each of the Democrats seeking Senatorial office have legs to stand on. 

Biden can start today by deploying some ju jitsu-like moves to turn Trump’s aggressive, out of control, actions against himself and the political right. 

Oh, ho, ho, ho, Biden, time for some kung fu fighting. Bring it as fast as lightning. Trump is saying he’s
Kung fu fighting
vaccinated and boosted so he can take credit for creating the vaccine. Thank him for providing a good example to his resistant followers. If they follow his lead to vaccinate and get boosted, no need for mandates. Bow to your adversary. [Ed. note: As it turned out, that's just what Biden did in his talk, though in an understated way.]

Other underplayed messaging includes:
  • Biden’s successes in recalibrating the judiciary to appoint lifetime judges to a federal bench that has become, along with the Supreme Court, the province of the far right. It may yet return some legitimacy to the American judicial system. Biden’s gotten more judicial nominees confirmed through the Senate than any president at this point in his first term in decades. Almost half of the 61 judges he’s nominated to the lower courts have been confirmed, according to Five Thirty Eight
  • Biden is addressing climate change. It matters. If the Republicans persist in opposing and blocking efforts to save the planet and states from steroidal natural disasters, it needs to be on their heads, in every state where people have experienced the heartbreak and trauma of forest fires, floods, hurricanes and tornadoes. And don’t neglect the families of workers in the coal industry, in Manchin’s West Virginia and in Pennsylvania, Wyoming, Illinois and North Dakota, who suffer in the short run from environmental efforts that redirect resources. Direct job training and hirings in higher paying industries where people live have to be front and center and available in 2022. That’s where subsidies should go to build back better. 
If only these five statewide Senate wins come to pass, we won’t need no stinkin’ Manchin, and there’s more.
Don't need no stinkin'...
The second installment of five is right here.
#####

Saturday, December 4, 2021

The Mississippi abortion case will owe its legacy more to Bush v. Gore and Plessy v. Ferguson than to Roe v. Wade

                                                                                                                                                  Dec. 4, 2021

Listening to the oral arguments in the Mississippi abortion case was instructive. It allowed me to have a more nuanced sense of whether the Supreme Court is an entrenched political body that is to be feared, not trusted. 

I have felt that to the core ever since the Bush v. Gore opinion in 2000 that hoisted George Bush into the presidency, deploying the Equal Protection clause to contrive election law reasoning that had never been used before, and has almost never been used as precedent since. The Court shamelessly predicted it wouldn’t. 

I’ve tried to keep from concluding that the Court is a bastion of political conservatism that decides the hottest button issues in ways that purport deviously to be fair. The conservative legal community and the justices who emerge with the “seal of right” from The Federalist Society, which self-describes “as a group of conservatives and libertarians dedicated to reforming the current legal order” now control the legal order. In its 40 years in existence, The Federalist Society pulls the strings behind the processes for choosing lifetime justices, and therefore for the Court itself and for most of the lower courts in the federal system. 

Still, I take no comfort (why would I?) in seeing it all coming since 2000. I continue to resist the obvious conclusion that the right has just taken over the levers of government – law enforcement, the courts, and the presidency under Trump – along with the hearts and minds of 40% of the American public, the unbridled mudslinging and divisive vitriol, and huge swaths of regions in the country, and their state legislatures and governors’ offices. Before I succumb to going into full counter-revolutionary fervor with fist in the air, I keep needing to re-examine what I see right before my eyes. 

Enter Wednesday’s oral arguments in Dobbs v. Jackson Women’s Health Organization, the Mississippi abortion case [you may want to check out the transcripts here]. 

The Mississippi Solicitor General Scott Stewart opened oral arguments with rhetorical guns blazing in defense of the fetus: “Roe v. Wade and Planned Parenthood v. Casey haunt our country. They have no basis in the Constitution. They have no home in our history or traditions. They've damaged the democratic process. They've poisoned the law. They've choked off compromise. For 50 years, they've kept this Court at the center of a political battle that it can never resolve. And 50 years on, they stand alone. Nowhere else does this Court recognize a right to end a human life.” 

Seemingly in the way of the fetus are Roe and Casey, which have anchored a woman’s right to an abortion to the Constitution. Together they serve as precedent (or “stare decisis”) for a woman’s liberty and privacy rights to choose how to deal with her pregnancy for about half of its duration. The presumption, if not the rule, is to not overrule precedent, because courts and society come to rely on precedent as they do a law. 

Seemingly in the way of precedent as our societal guardrails is the 1896 case of Plessy v. Ferguson, which even grade school kids are taught was the ignominious decision to create “separate but equal” schools to segregate blacks from whites. The Court majority then rationalized that the separate systems were ok because the black schools weren’t “a badge of inferiority.” 

As the same grade school kids know, though many may not quite appreciate, it took 58 years for a differently constituted Court, known as the Warren Court, to gingerly and unanimously issue the Brown v. Board of Education decision in 1954 that held “separate but equal” to be unconstitutional. The opinion, after 58 years of stasis, segregation and badges of inferiority well beyond the schools, unleashed a revolution in the U.S. not seen since the Civil War and not seen again until the viciously contested end of the Trump administration. 

The conundrum for a Court that is fair, non-partisan and not rigged by bedrock political allegiances is to find reasoned bases for either invoking precedent or overruling precedent. The conundrum for the rest of us is to discern between honest conservative legal thinking, on the one hand, and political conservatives fashioning clever judicial covers for deeply held political positions on the other hand. 

The Justices are no fools. Chief Justice Roberts was keenly aware of the festering societal perceptions of the Court’s illegitimacy in 2012 when he abandoned the conservative orthodoxy to hold key provisions the Affordable Care Act, often called Obamacare, constitutional. The thinking is he did that to overcome the stench left behind by Bush v. Gore, or simply put, to save the Court

Dozens of articles have been published, laying out the case that the Court’s legitimacy is teetering on the brink. [To cite a few, Is the Roberts Court Legitimate? from National Affairs Fall 2021 issue, Chief Justice Roberts’s Health Care Decision Disrobed: The Microfoundations of the Supreme Courts Legitimacy from the American Journal of Political Science in 2015, Chief Justice Roberts and the Legitimacy of the Judiciary from the Center for American Progress in 2020, The Lie About the Supreme Court Everyone Pretends to Believe: Justices love to proclaim their impartiality, all evidence to the contrary from the Atlantic this past September, and Critical Moment for Roe, and the Supreme Court's Legitimacy from The New York Times a few days after the oral arguments.]

Since Bush v. Gore, the Court’s legitimacy as a fair, non-partisan body has been further undercut by a judicial selection process that stripped then-President Obama from the opportunity to appoint Merrick Garland to the Court ostensibly because the vacancy surfaced within a year of the 2016 presidential election, and four years later allowed Barrett, Trump’s last of three Supreme Court picks, to join the Court eight days before election day 2020. Thousands of citizens had already voted in an election Trump would lose. 

There is little doubt that one goal in the right wing’s efforts in the Mississippi case to provide a fetus with a right to life commensurate with a woman’s right to choose an abortion is to do it without the appearance of impropriety. So the oral arguments need to look clean. 

The Mississippi Solicitor General brought up the 7-1 Plessy v. Ferguson decision first when he invoked the case, noting that the lone dissent recognized that the majority in creating “separate but equal” was wrong. 

Justice Barrett brought up Plessy and Brown as a paradigmatic illustration of precedent not being “an inexorable command.” 

Justice Kavanaugh was prepared with a litany of cases of overruled precedent, almost of which were cases in which the decisions reflected progressive advances in society – separate is not equal, the need for one person/one vote, the state’s authority to regulate business during the New Deal, Miranda warnings, defendants’ rights, and same sex marriage. He obviously chose cases in which the minority liberal justices and the public would have to agree that precedent sometimes needs to be overruled. Clever, but risky in that it left open the flank that limiting or ending a woman’s right to abortion is not a progressive advance for society. Then again, it is a monumental advance in a fetus’ right to life. 

The give and take turned to the importance of framing Plessy as a decision that was wrong when it was made in 1896. Both the conservative and the liberal justices seemed comfortable with that. 

It allowed Justice Kavanaugh to invoke a concept of “neutrality.” In effect, admit that the Court decision was always wrong and make it right. Ideal to eliminate Roe as wrong then and now. Justice Breyer seemed to agree that Plessy was wrong when it was decided because it relied on the misguided judgment that “separate but equal” was not “a badge of inferiority.” His thinking seemed to rely on the predicate that Roe and Casey were correct when decided, leaving Mississippi to have to argue what’s changed since to justify overruling it. Fifty years and no scientific breakthroughs, no changes in societal norms or attitudes, as with Plessy and Brown. Almost 60% of Americans consistently say abortion should be legal in all or most cases, according to a recent Pew Research Center survey

With the arguments seeming to veer toward a head-on collision of whether societal circumstances need to materially change before the Court should resort to overruling precedent, a lightbulb in Justice Alito’s brain lit up. If that’s right, he queried, what should the Court have done if Plessy were re-argued the year after its decision. Nothing would have changed societally in a year. 

When one of the lawyers for the Jackson Women's Health Organization evaded the set-up, Alito persisted. Were the experiences from 1896 to 1954 needed to realize that Plessy was wrongly decided? 

The lawyer caved and answered that because Plessy was wrong when it was decided it should have been overruled even one year later without the change of any societal circumstances. That answer was a tactical surrender and a potentially critically wrong answer in that it provides just the cover the conservative justices need to appear on the up and up when they overturn Roe and find a fetus to have rights too. The Court is being neutral by letting states (and the people, as they put it) decide among competing rights. 

I sensed as I listened and cringed that Breyer and the lawyers for the Jackson Women's Health Organization fell into a trap because they couldn’t say out loud that Plessy unfortunately was not obviously wrong to the society of the era when it was decided. It would indeed take years and years of Jim Crow, of institutionally enforced “inferiority,” of restrictive covenants, and of colorline breakthroughs before the Warren Court would try to right 58 years, in fact centuries, of wrong. 

As Justice Sotomayor summarized, the Mississippi state legislature knew quite well what it was doing in taking on Roe head on. It noted, what we've all taken judicial notice of. The Supreme Court has three new justices. She asked rhetorically: "Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?" 

Mississippi’s final thoughts in rebuttal before the oral arguments ended were: “Justice Kavanaugh, you had it exactly right when you used the term “scrupulously neutral.” A woman has an interest, as does “the unborn child too whose life is at stake in all of these decisions.” 

He culminated by underscoring lone dissent in Plessy and said: “It took 58 years for this Court to recognize the truth of those realities (that the U.S. should not tolerate any caste systems) in a decision, and that was the greatest decision that this Court ever reached. We're running on 50 years of Roe. It is an egregiously wrong decision that has inflicted tremendous damage on our country and will continue to do so and take enumerable human lives unless and until this Court overrules it.” 

Yes, it has been 50 years since Roe. Yet, there is no indication it was wrong when decided other than in the minds of those whose political and religious indoctrinations tell them it was. That hasn’t changed. What has changed is the composition of the Supreme Court and the other federal courts. 

That leaves the courts to be feared, not trusted.

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