Critical Days at the Christian Fascist United States Supreme Court

When Terrible Arguments are Menacingly Heard

The Handmaid Court of Their Dreams

One year and four days ago, the United States Supreme Court heard oral arguments in Dobbs v. Jackson, a case sent to the Court with the purpose of undoing women’s half-century constitutional right to an abortion. Dobbs was the case that women-hating Christian fascists had been viciously imagining put before the Court of their dreams.

It was only taken up because the Court had been tilted far to the right by the serial rapist Donald Trump and his fellow Republi-fascist allies in the US Senate. This Trump court was crafted with the unmistakable purpose of reimposing the female bondage of forced motherhood. It was never about saving “the babies.” It was always about crushing the freedom women had gained by winning the right to control their own reproductive lives.  

Nobody should have been surprised (and yet an astounding number of moderates, liberals, and progressives were or claimed to be) by the ruling that came last June. The draft Dobbs decision that was leaked last May (almost identical to the final decision the following month) made a mockery of the longtime legal doctrine of stare decisis, according to which a court may break from settled precedent only when “relevant circumstances have changed significantly since the adoption of the prior legal rule or where there has been a fundamental error in legal analysis.” 

No relevant circumstances had altered since the 1973 Roe v. Wade decision, whose basic principle – women’s right to choose whether to keep or end a pregnancy – is still backed by more than two-thirds of the US populace. The Trump Handmaid Court (THC) found no basic legal-analytical error in Roe.

The actual relevant circumstantial difference 49 years later was the political capture of the nation’s highest judicial body by dedicated Christian-fascists. Written by the arch-reactionary while male patriarch Sam Alito, the Dobbs ruling cited supposed “legal precedents” from Medieval and early modern England to justify ordering the total collapse of a basic constitutional civil and human right. The Court’s language shows that the THC saw the attack on abortion rights as a potential opening breach for a many-sided revanchist attack on other basic rights including (for starters) birth control, gay marriage, and interracial marriage.

The Proper Militant Response v. The Cynical Advance Surrender

The minute Dobbs was taken up by the THC, the proper popular response was the one advocated by Rise Up 4 Abortion Rights (RU4AR): mass resistance in the streets and public squares to show that killing Roe would mean the destabilization of society. (Direct popular action is how abortion rights were won in the first place and indeed that’s how every basic human, civil, and social right – including the much-ballyhooed right to vote for our own capitalist rulers – has been won in US-American history.)  

Rather than take this elementarily indicated position, consistent with Roe’s attainment, the Democratic Party and its allied mainstream “choice” organizations opted instead for a deeply conservative, “cautious” (actually reckless), cringing, and cowardly approach.  The inauthentic opposition party (the late political scientist Sheldon Wolin’s keen description of the Democrats 15 years ago) and its civil society “choice” partners arms surrendered in advance.  They openly planned and fundraised for what they called “the post-Roe era” from the moment the THC agreed to take up Dobbs. They told concerned citizens in the nation’s keep-Roe super-majority to rely on electoral politics and abortion service fundraising to supposedly and somehow and make everything alright.

Among many top Democrats, the outward cowardice cloaked cold electoralist cynicism.  They looked forward to the Dobbs decision, calculating that it would be their ticket to victory in last month’s mid-term elections.

Planned Parenthood and NARAL, the top two national “choice” groups, both strongly tied to the corporate-imperialist Democrats, raised money prolifically off Roe’s demise before as well as after the ruling, which they made no serious effort to block.  

A Liberal-Left Red-Bait (More in Appendix)

Perversely enough, a number of “liberal” and “left” Democratic “journalists” and supposedly progressive, pro-abortion “repro” organizations used the Dobbs decision as an occasion to launch a multiply slanderous neo-McCarthyite and COINTELPRO-like attack on RU4AR. The main reason for this red-baiting assault was clear: RU4AR made an admirable and serious effort to mobilizes masses to block the Dobbs ruling, thereby (at least implicitly) exposing the dismal, demobilizing Dems and the “choice” establishment as the Weimar-like passive and hollow resistance to the women-hating Christian Republi-fascists (still) atop the judicial branch of the US government. (Please see the Appendix to this essay [below] for more details on this pathetic liberal-“left” neo-McCarthyite episode.)  

Not Funny: Lucy and Charlie All Over Again

Well, the Dobbs decision is now nearly half a year old. Planned Parenthood and other abortion service-providers have taken in untold millions of dollars to support ramped-up “sanctuary state” abortion services and legal challenges. The mid-term elections have handed the US House of Representatives to the patriarchal Republi-fascist party of Trump, DeSantis, Gosar, and Taylor-Greene.  The midterms have of course done nothing to change the Christian fascist composition of the unelected, appointed-for-life Supreme Court.  And millions of women and girls in “the land of the free” are now living under the personal, social, sexual, and medical terror of total and near-total abortion bans.  The horror is greatest for disproportionately Black and brown poor women, who lack the resources to travel for abortion services.     

Except for the disgraceful attacks launched against RU4AR by liberal and “left” writers and “activists” last summer (again, see the appendix to this essay), the most disgusting thing I’ve heard from any nonfascist politico this year was Joe Biden using the Republikaners’ coming takeover of the US House to say that that he and his fellow Democrats won’t “have the votes” to act on his preposterous pre-election lection “promise” to sign legislation codifying Roe v. Wade as national law.  How gullible does Biden think we are? He made this statement and his pre-election “promise” on the transparently disingenuous premise that the post-midterms US Senate would have the 60 votes required to get such a bill past the nation’s deeply reactionary upper chamber. That was never a possibility.

The “promise” was part of the cynical game that the dismal Dems have been playing with abortion for at least half a century. It’s the same ruse they always run regarding one popularly backed policy promise after another.  It’s straight out of the old Charles Schultz “Peanuts” cartoon: Lucy lines up the football for poor Charlie Brown to kick and always pulls it away just as his foot is about to make contact. (Bernie Sanders just paid homage to Schultz by playing the Senatorial Lucy game in relation to the federal government’s recent pre-emptive breaking of a potential national rail strike.  I’ll elaborate on this in my next Paul Street Report in three days. Plus ca change, plus c’est la meme chose.)  

The Peanuts cartoon is funny and adorable.  The Democrats’ game is sick and deplorable. Biden and the Dems used the abortion issue to limit their damage in the 2022 mid-terms.  They continue as before to do nothing to make things right for tens of millions of women and girls across the nation. As on the day the Court overturned Roe v. Wade last June, Biden has but refuses to deploy his power to (i) proclaim the war on abortion a national public health emergency; (ii) mandate the provision of free, safe, and legal abortions on federal lands and military bases across the nation, Christian fascist (“red”) prohibition (female slave) states included; (iii) vigorously fight state government efforts to restrict mail delivery of abortion drugs through the US postal service. As Refuse Fascism (on whose editorial board I sit) notes, “Joe Biden announced right after the election that the Democrats weren't going to do anything for abortion rights, after telling us that only by voting for Democrats were our rights safe! The cynicism is breathtaking and deadly, as women face increasing difficulty in accessing health care even beyond abortion.”  

Last Thursday, RU4AR marked the one-year anniversary of the day the THC heard Dobbs. RU4AR members rallied outside federal courthouses across the country.  Rise Up activists denounced the sexist and medical terror the ruling has caused in dozens of abortion prohibition and near-prohibition states. They called on Biden and the Dems to cease and desist from their sick and cynical abortion game and to get serious about defending and advancing women’s critical right to control their reproductive lives. “Democrats we call your bluff,” they said, “voting blue is not enough.”  What is still required, they said, is not an electoralist “blue wave” but rather a great Latin American-style Green Wave – a righteous social movement fighting to restore a basic human and constitutional right through mass citizen action beneath and beyond the killing confines of the reigning US election cycle.

Another Dark Oral Argument Day is Now Less Than 48 Hours Away

It might at first seem odd for activists to protest on the anniversary of the day on which a case was heard but not yet decided by the Court.  But the simple fact that Dobbs was taken up and argued before the Court was critical given the revanchist composition of the nation’s highest judicial body. Dobbs was only heard because the Court had been turned majority Christian fascist. The hearing itself was an attack on half of humanity.

And that brings us to another key Supreme Court case whose very hearing ought to send dark chills down the spines of anyone concerned for the fate of democracy and justice.  In less than 48 hours the Court will hear Moore v. Harper, based on an extremely dangerous right-wing lawsuit that is aimed like a poison arrow at what’s left of free and fair elections across “the world’s greatest democracy.” The fact that the Court agreed to entertain arguments for Moore is supremely alarming.  

Some background. After their state supreme courts approved new congressional district maps earlier this year, Republicans in North Carolina and Pennsylvania filed emergency applications asking the Supremes to block the maps from being used in the mid-term elections. They claimed that only the Republican-controlled legislatures in both states — not state Supreme Courts — could enforce congressional maps. They invoked what has long been considered a fringe far-right constitutional doctrine known as the independent state legislature theory (the ISLT). The ISLT says that state legislatures have special power to determine federal election rules, free from “interference” by other parts of state government.

“Despite running contrary to precedent and history,” the legal journalist Mac Brower notes.” the Supreme Court appears dangerously close to adopting” the ISLT “with potentially disastrous ramifications for democracy.” As Brower explained last March:

“If the Supreme Court ever endorsed this theory, it could completely upend American elections almost overnight. While the ramifications would depend on exactly how the Court applies it, some possible outcomes include:

·       Independent redistricting commissions like Arizona’s would be unconstitutional.

·       State courts would be unable to review laws passed by a state legislature that regulate federal elections, like when the New Hampshire Supreme Court overturned strict residency requirements for voting.

·       Citizen-led ballot measures that modify elections, like Maine’s adoption of ranked-choice voting in 2016 or the top-four primary passed in Alaska in 2020, would be unconstitutional.

·       Governors would not be able to veto election laws or congressional maps passed by a state legislature, like when Gov. Gretchen Whitmer (D-Mich.) vetoed a bill that limited absentee voting and strengthened voter ID requirements or when Gov. Tony Evers (D-Wis.) vetoed a new congressional map.

The most extreme form of the theory would allow state legislatures to ignore their own state constitutions when writing election laws, selecting presidential electors or drawing congressional maps” (emphasis added).

Dear reader, I hope you read these three words in the last sentence I just quoted: “selecting presidential electors.”  Yes, that’s right: if the Christian fascist Supreme Court – with its far-right 5-4 majority created by the demented QAnon fan Donald “Take Down the Metal Detectors Cuz the Guys with the AR-15s Don’t Want to Hurt Me” Trump – backs the full-on ISLT, right-gerrymandered far-right legislatures like the ones that hold power in key contested states like North Carolina and Wisconsin could nullify the 2024 popular presidential vote in their jurisdictions.  They could send to Congress (one half of which will be controlled by the Republi-fascist Party beginning next January) Electoral College slates (“electors”) who back the Republi-fascist presidential candidate (Trump or the potentially more dangerous Ron DeSantis) even if a majority or plurality of their state’s voters went for the Democratic candidate.

As if US “democracy” isn’t already sufficiently diluted, crippled, contained, and cancelled by the undemocratic Electoral College itself, the absurd right-wing malapportionment of the US Senate, the gerrymandering of state legislatures and the US House, the reactionary obscenity of states’ rights, the lifetime appointment of federal judges, and plutocratic campaign rules and media structures.     

I can already here moderates, liberals, and “progressives” ready to tell me “They’d never go that far. That can’t happen here.”  Oh really? Does anyone remember how many smug and complacent US Americans thought that Trump could never be elected, that Trump couldn’t much damage if he somehow got in the White House, that an open Christian fascist Handmaid like Amy Coney-Barrett could never become a Supreme Court Justice, and that Roe v. Wade could never be overturned.

For what it’s worth, here’s what Brower wrote last March:

“The [ISLT] isn’t going away anytime soon. Even though the Court denied the North Carolina and Pennsylvania applications this month, Justices Alito, Gorsuch and Thomas once again dissented in favor of the ISL theory…Although Justice Brett Kavanaugh didn’t join this dissent, he wrote separately that the Court needed to address the merits of the theory at some point… Thus, at least four current justices support re-examining the theory. They will have a chance to do so now that North Carolina Republicans have petitioned for a writ of certiorari asking the Court to hear their case’s merits — and it only takes four justices to grant one. Even if the Court ultimately doesn’t decide to take up the North Carolina case, it could take up another yet to come. If it does, we may wake up and find ourselves living in a very different democracy than we thought.”

Well, guess what, the Court decided to take up Moore v. Harper just days after it surprised far too many Americans by abolishing women’s constitutional right to an abortion. Four of the absurdly powerful and right-wing Supremes could be on board with the arch-reactionary ISLT and the Christo-Handmaid Amy Coney-Barrett herself could hold the balance. As the attorney and leading liberal legal commentator Ian Milllhiser writes at VOX, “Moore is…potentially the biggest threat to free and fair elections…to reach the Supreme Court in my lifetime — and I was alive for Bush v. Gore. Four justices have endorsed the utterly nonsensical legal theory underlying Moore, which means that, unless one of those four has second thoughts, the future of US elections will be decided by Trump-appointed Justice Amy Coney Barrett.”

December 7, Pearl Harbor Day – a day that changed America.  Maybe we’ll be outside federal courthouses rallying against the Moore v. Harper ruling, which put the last “constitutional” nail in the coffin of an already deeply flawed US democracy, in 367 days.

Pease make sure to read the following appendix. It’s important to register the depth and degree of the reactionary viciousness that plagues some if not most of what passes for a “left” in the US today.

Appendix: The Liberal and Left “Repro: Red-Baiters of 2022

A number of supposedly “left” Americans earned nominations for the Red-Baiters’ Hall of Shame in the summer of 2022.  Here are three of the most despicable, criminally slanderous neo-McCarthyite attacks on RU4AR that appeared in online political “journalism” and commentary, accusing RU4AR of (among other things) financial corruption, hatred for transgender people, and being a “front group” for a “communist cult”:  Emily Liebert, “Topless Abortion Activists Who Stormed a WNBA Court are Part of a Problematic Organization,” Jezebel, June 8, 2022; Robert L Mackey, “Abortion Rights Activists Call New Group Leading Protests a Front for a Far-Left Cult,” The Intercept, July 14, 2022; Will Sommer, “Is This Communist ‘Cult’ Trying to Hijack the Abortion Movement?,” The Daily Beast, July 11, 2022. For an appalling and libelous attack on RU4AR by liberal, progressive and even “socialist” “repro” groups, see this criminal and evidence-free hit-job, put up online on the day after the Dobbs decision: nycforabortionrights, “Statement Against ‘Rise Up 4 Abortion Rights.”

It is worthwhile to reflect back on a telling contrast. On the very day (June 24, 2022) and indeed at the very minute Dobbs was handed down, RU4AR, the group that had been struggling to organize mass resistance to the well-telegraphed Dobbs decision for months, was outside the Supreme Court denouncing the decision, proclaiming that the ruling “most not stand” and calling for the Biden administration to use its power to guarantee and provide safe and legal abortion across the land.  In this same moment of reactionary triumph, “activists” with the neo-COINTELPRO-like outfit “nyc4abortionrights” were penning not a call for a popular movement to restore and advance women’s abortion rights action but instead a slanderous neo-McCarthyite online attack on the nation’s leading militant abortion rights organization.

Here are the names of the largely corporate and foundation-backed groups that signed “nyc4ar’s” hate post, issued (incredibly enough) one day after the Dobbs ruling:  Reproductive Justice Collective; United Against [no joke] Racism & Fascism (NYC); Fund Abortion Not Police; Feminist Collages (NYC); Shout Your Abortion; Washington Square Park Mutual Aid; Buckle Bunnies (Texas); Mujeres en Resistencia( NY/NJ); Abortion Access Front; Reproductive Freedom Fund (NH); The Jane Fund (Massachusetts); Reproductive Rights Coalition (Charlotte, NC); Tigers for Choice (Texas); Chicago Abortion Fund; National Institute for Reproductive Health Action Fund; SWOP Brooklyn; Brooklyn People’s March; Forward Midwifery; SMAbortionActivists; New Mexico Religious Coalition for Reproductive Choice; Women’s Information Network of NYC (WIN-NYC); [finally and I kid readers not] the Chicago Democratic Socialists of America (DSA) Socialist Feminist Working Group.

(I penned a response that advanced ten possible explanations for these criminal “left” red-baiting assaults on RU4AR: Paul Street, “Why is ‘the Left’ Red-Baiting Rise Up 4 Abortion Rights on the Eve of Fascist Destruction?,” CounterPunch,  August 1, 2022.)  

As a RU4AR volunteer who protested outside the Supreme Court in Washington DC on the day and at the very minute of the Dobbs decision, I was viciously assaulted online in the wake of the ruling by a deranged and dishonest Chicago DSA member. Long a ubiquitous hulking figure in Chicago movements and protests, this “socialist” and his equally suspect and unbalanced anti-communist girlfriend swore their determination to crush RU4AR, which they absurdly accused of being nothing more than a front for a communist “cult.”  It will be less than surprising to see this dodgy duo and other pretend radicals show up as government informants and infiltrators in future legal proceedings.