The Supreme Court has allowed Texas its own little human rights holiday. Roe—and to a greater extent Casey—is still the law of the land, but this is simply a minor inconvenience to the 6-3 conservative super majority currently presiding in The Supreme Court of the United States (SCOTUS). This recent decision out of SCOTUS’s Shadow Docket—where The Court issues emergency orders without a full decision or oral arguments—does not technically rest on the merits (constitutionality) of Texas Senate Bill (SB) 8, but on the notion that the defendants named in the suit may not pursue litigation against those members of the Texas populace seeking an abortion. The willingness to accept a half-baked procedural quirk is a natural consequence of people who see The Court as simply the ultimate intellectual exercise, and not as a living body with the ability to profoundly change the lives of Americans everywhere. The evil of the modern Republican Party to allow a decision like this to stand without legislative intervention, a decision with so little public support and so little electoral endorsement to abide, is the definition of anti-American. The judiciary branch of the government has allowed a soft confederacy to form in Texas. There is, and likely will never be another “law of the land” as long as exceptions like this one stand. Settled case law has become so inconvenient that the conservative members of the court cannot wait for Dobbs—a case slated for next term addressing a 15 week abortion ban in Mississippi—to be settled in a year. It’s not enough to tip your hand, the hyperconservative justices must insert themselves and explain what the cards mean.
This usage of The Court is a symptom of a Conservative party winning elections by gerrymandering, undereducating, and all out bullying their way into electoral victories and popular losses. A party that enacts regressive policies to the benefit of a Christian base so antiquated in their values Jesus might consider them retro. If you can’t pass laws, why not reinterpret the constitution until they exist by way of the judiciary? The Court’s Shadow Docket—which receives much less in-depth media coverage—has earned its name, claiming lives, shaping immigration policy, and now reaping the rights from millions of people wanting to avoid an unfortunate trip to their nearest fire station.
This is not the act of a single state denying rights to more than half of its citizens. It is the smack talk at a weigh-in before this court touches topics in the upcoming term of gun rights, abortion, immigration, and some of the most profound issues that touch Americans everywhere. Texas SB 8 is not a discrete decision. This is part of a grand wizardly tradition launched by the conservative Federalist Society to stitch losing laws into the constitution like they have the patches on their robes. The court now stands in defense of one thing, and those are the values of the members sitting on it. SCOTUS reaffirms that objectivity, stare decisis, and precedent are only words used by those who ache for the days when Dred Scott was the law of the land against anyone standing in the way of their imagined future for white children.
The hasty decision The Court chose to release reads as if written by a group of people who earnestly believe a 10 month waiting period on an abortion would be perfectly reasonable. It seems interesting that SCOTUS has decided that a human child or the process of childbirth do not represent “an irreparable injury.” It takes years for a case to work from the lower courts to SCOTUS, and in a typical arrangement there would be a preliminary injunction at this point so that the rights of Texans may be preserved so the case may be tested on the merits. That did not occur here, and Justice Sotomayor in her dissent found the words to describe that horror better than I possibly could.
Some have likened Roe to being on life support. What we are witnessing is not the end of Roe, but the last rays of sunlight on a free America. The long night of an America where you can be refused your right to vote, but not to a concealed carry permit has begun in the shadows. If you and your same sex partner are looking to get married it seems like you’ve only got a few years left; if Roe is on the table, Obergefell might look particularly charming to overtly religious, textualist, and beer-chugging justices alike.
This is not a victory for anyone. It’s a reminder that constitutional freedoms are not enshrined, but allowed by any five of the Nine True Kings of the United States of America.