An Unranked List of Potential SCOTUS Disasters
Updated on July 11, 2018 to reflect the nomination of Judge Brett Kavanaugh.
These days, all of our alarm bells are cracked from overuse. We need a new bell! A huge one that I can positively wail on like in The Hunchback of Notre Dame. (I think my mirror is broken too, because every time I look into it, I see a wraith with her mouth open in a silent shriek? They just don’t make things like they used to.)
When everything seems to be falling apart, it’s crucial to stay grounded in reality. That reality? It could get so much worse, and it absolutely will if we don’t do something. To quote the office lawyers whose half-and-half I’ve never stolen, “Exhibit A” is the Supreme Court vacancy.
The good news is that we can fight this. We don’t have to hand over Kennedy’s seat to an anti-choice extremist like Brett Kavanaugh. Let’s tell the Senate to send him on his way like Stephen Miller at a Mexican restaurant1. Because this is so much bigger than one empty chair.
What’s at stake here for women? How can I put this—we’re at Threat Level: Don Jr. Tweeting the Word “Lit.” (You can basically judge how terrible something is in direct correlation to Don Jr.’s glee.) So much is at stake that it can be hard to keep it all straight, which is why I put together a list, and also why I rage-cry a lot now. This list is not comprehensive, but it’s a start.
1. Roe v. Wade. Trump has stated publicly that he will only appoint judges to the Supreme Court who will vote to overturn Roe. All across the country, anti-abortion groups have been scheming with state lawmakers to introduce legislation that blatantly violates Roe in the hope that women’s advocates will challenge them all the way to the Supreme Court. If those groups show up and find the bench stacked with anti-abortion justices, Roe is in real danger. And without Roe, we could face a nationwide ban on abortion—forcing women in many states to resort to dangerous and illegal means to procure abortions.
2. The Affordable Care Act (ACA). The GOP has tried to get rid of the ACA about 90 million times, which makes sense, because it does terrible things like provide access to free birth control, prevent your insurance from dropping you if you get sick, and protect coverage for people with preexisting conditions (including pregnancy), 67 million of whom are women. If you want to live in a country where calling an ambulance doesn’t feel like a zany financial decision you make if you feel like really spoiling yourself, letting an anti-ACA extremist sit on the Supreme Court is definitely a move in the wrong direction. But it’s also particularly dangerous for people with disabilities—a category that includes one in four women. If people with disabilities are forced into a position where they can’t afford the care they need, many of them will find themselves backed into an unimaginable corner.
3. The Equal Protection Clause. This is a biggie. The Equal Protection Clause of the Fourteenth Amendment is meant to do exactly what it sounds like. The Supreme Court ruled in 1973 that sex classifications should be subject to the same strict scrutiny as racial classifications. That means that when any part of our government tries to pass discriminatory legislation, it can be struck down. We need a justice who will respect this precedent, because if we end up with someone who doesn’t, millions of people have a lot to lose.
4. More weeks like the last few. In the past few weeks alone, we’ve seen the impact of Justice Gorsuch’s voice on the court. First, Gorsuch sided with conservative justices on the court to decide that a fake, medically unlicensed “women’s health” center had the right to deceive women about medical facts in NIFLA v. Becerra. Then, because injustice never takes a nap, the court upheld the president’s Muslim-ban in Trump v. Hawai’i. And then, right before Justice Kennedy announced his retirement, the court gave us a decision in Janus v. AFSCME that constitutes an attack on public-sector unions. All of these cases were decided with Kennedy on the court. If Kennedy is replaced by a conservative hardliner, the glimmer of hope that Kennedy’s “swing vote” provided will be snuffed out, the balance of the court will drastically shift towards Trump’s political agenda, and the stack of damaging decisions will get even higher.
5. We don’t really know. We’re in constant interaction with history. It traps and tests us; we march through it, we drink it from the tap, we eat it. We make it, too—blindfolded. We don’t know which landmark cases will come before the court during the lifetime term of the next justice. But we know that this person will have the opportunity to tip the court, and to make decisions that will reverberate in our granddaughters’ lives. We want that justice to be someone fair and impartial, who will interpret our country’s laws with compassion and regard for its people. Someone with respect for the balance of power that the judicial system is meant to safeguard.
That person is definitely not Kavanaugh. But I think it could be Janelle Monáe; she can do anything.
1. I’m pulling you aside here just to ask: why would Stephen Miller even go to a Mexican restaurant? Can you imagine a world where Stephen Miller can handle any type of salsa? One brush with some pico de gallo and the guy loses what’s left of his hair. ↩
