Heather Cox Richardson

Fallout continues over the leaked draft decision of the Supreme Court in the case of Dobbs v. Jackson Women’s Health Organization, the draft overturning Roe v. Wade.

Tonight, in addition to the “non-scalable” fence erected last night, Capitol Police are placing concrete barricades around the United States Supreme Court. Legal commentator Joyce White Vance tweeted: “Odd that the Supreme Court is acting like they’re under assault, when it’s actually us who are under attack by them.”

In today’s context, it seems worth noting that in 2014, the Supreme Court struck down a Massachusetts law mandating a 35-foot buffer zone around clinics providing abortion services, on the grounds that such buffer zones infringe on the First Amendment’s right to protest.

Today, Chief Justice John Roberts broke his silence about the leak, calling it “absolutely appalling” and saying that if “the person” or “people” behind the leak think it will affect the Supreme Court, they are “foolish.”

Interestingly, after the initial insistence—without evidence—by the right wing that the leak came from the left, there is reason to think that, in fact, the decision was leaked by a right-wing zealot afraid that Roberts, who did not want to overturn Roe v. Wade entirely, would pull at least one of the other right-wing justices away from the extremist stance of Justice Samuel Alito’s decision and weaken it.

Josh Marshall at Talking Points Memo noted that on April 26, the Wall Street Journal published an op-ed by the editorial board suggesting this very scenario. The editorial board warned that Roberts seemed inclined to “find a middle way” in the Dobbs decision and that if he “pulls another justice to his side, he could write the plurality decision that controls in a 6–3 decision.” The editorial continued: “We hope he doesn’t succeed—for the good of the Court and the country…it would prolong the Court’s abortion agony…. Far better for the Court to leave the thicket of abortion regulation and return the issue to the states.”

Regardless of who leaked the draft, in its wake, the political landscape in the country appears to be shifting. The right wing seems to see this as its moment to accomplish the imposition of religious restrictions they had previously only dreamed of achieving. Talk of ending gay marriage, recriminalizing homosexuality, undermining public schools, and so on, is animating the radical right. Media stories have noted that most democratic countries have, in fact, been expanding reproductive rights. Going the opposite direction is a sign of rising authoritarianism. The United States shares that distinction right now with Poland and Nicaragua.

In contrast, those interested in protecting the constitutional right to reproductive choice, as well as all the other civil rights now under threat, are speaking out powerfully. There is also mounting anger that five of the justices on the Supreme Court seem to have lied under oath in order to do the very thing they appeared to promise not to.

That open call for a rollback of rights we have enjoyed for 50 years seems to have been a wake-up call for those unable to see the rising authoritarianism in this country for years.

From 1995 to 2001, MSNBC host Joe Scarborough was a Republican representative from Florida. Today he said, “[W]e need to look at what’s before us and how extreme these…MAGA Washington freaks are.” He went on to list some of the extreme statements of Representatives Marjorie Taylor Greene (R-GA) and Madison Cawthorn (R-NC) and former president Donald Trump, and then said: “This is the party that brought you Jewish space lasers. This is the party that talked about that dude from Italy who they say stole the election with a satellite. Remember those bamboo particles that Republicans claimed were in Arizona ballots? And those ninja freaks or whatever they were called that went in and they were going to show that Biden stole the election but except it ended up that they get even more votes for Joe Biden. They’ve told one lie after another lie from websites run by Chinese religious cults…. This is what America wants?”

Scarborough continued: ‘“There’s always been one funny controversy after another churned up by Republicans so they can govern by gesture and proclaim their need to be radical so they could own the libs. But lately those politics of gesture morphed into actual policies that are hurting you…and your family. That are hurting Americans in Trump states. The Texas governor attacks truckers in his own state ‘cause he thinks that’s how he owns the libs, but he ended up costing Texans 4 billion dollars.”

“There’s the Florida governor’s crazed attack on Florida taxpayers, going to cost them about a billion dollars, via his war on the Magic Kingdom—again to own the libs. But he’s just ending up owning his own taxpayers in central Florida. And yesterday a harshly written Supreme Court draft…will end a 50-year constitutional right…that only 19% of Americans support being stripped away. Only 19% of Americans want to ban abortion.”

This, of course, is not a conversation the Republicans wanted to have before the midterm elections, and thus they have tried to focus on the leak rather than its substance.

Today, Politico tried to suggest that the extremism of the party was limited to the “fighters” in the Republican Party, who are challenging “the governing wing.” Author Ally Mutnick contrasted Ohio Republican nominee for the House of Representatives J.R. Majewski with Representative Dan Crenshaw (R-TX).

Majewski “twice painted his lawn into a massive shrine of former President Donald Trump,” “raised thousands of dollars to escort a group to Washington for the Jan[uary] 6 rally that preceded the Capitol riots,” and ran a recent TV ad that “showed him walking through a shuttered warehouse with an assault-style rifle, vowing to do ‘whatever it takes’ to restore the country to its ‘former glory.’” The article contrasted “hardliners who often refuse to negotiate” with “dealmakers who are eager to reach across the aisle.”

The attempt to split the current Republican Party into a moderate wing and a radical wing is a dramatic revision of Republican Party history. In fact, moderate Republicans, who believed that the government had a role to play in regulating business, providing a basic social safety net, and promoting infrastructure, were purged from the party in the 1990s, when power shifted to leaders who believed that the country worked best when businessmen could organize the economy without meddling from government bureaucrats. Because their position was always to cut taxes and pare back the government, they were absolutists, unwilling to compromise with Democrats.

Now those extremists have themselves split into a business wing that wants small government to leave it alone and a theocratic wing that wants a strong government to enforce Christian beliefs on the country, but neither is moderate or willing to reach across the aisle and compromise with Democrats. Crenshaw might be more reasonable than Majewski, but he opposes abortion and Roe v. Wade, opposes gun control, wants to end the Affordable Care Act (Obamacare), and voted against both impeachments of former president Trump.

Next week, Senate majority leader Chuck Schumer (D-NY) will force a vote on legislation that protects the right to abortion. This will almost certainly fail, since the filibuster will enable Republicans to block the bill unless it can get 60 votes, which is highly unlikely. But it will put senators’ stances on the protection of reproductive choice—a very popular policy—on record.

Senator Susan Collins (R-ME), who expressed dismay that now-Justice Brett Kavanaugh misled her in what seemed to be promises not to overturn Roe v. Wade, has already said she will vote against the measure because she thinks it goes too far. She and Senator Lisa Murkowski (R-AK) have proposed their own much more limited bill, but it has no cosponsors, and Democrats say it leaves the door open for states to impose severe restrictions.

Schumer says he will not hold a vote on the Collins-Murkowski bill because he will not agree to cut back on constitutional rights. “This is about a woman’s right to choose—fully,” he said. “We are not looking to compromise [on] something as vital as this.”

Senator Kirsten Gillibrand (D-NY) added. “I do not think that 50 percent of America should be told that they have to put their bodies at risk of life or death without their consent.… I hope every human being in this country understands that when you take away a woman’s right to make her decisions about her health and well-being, she is no longer a full citizen.”