Disingenuousness ruled, irony died, and flat-out falsehoods rang out loudly in the Supreme Court today.

The man who murdered irony.

Conservatives are having quite a time in America this week.  They’re about to win a case in the Supreme Court using the same argument that they used in support of slavery and Jim Crow laws -- that the most consequential matters of life and liberty in this country should be left up to the states which abused those very principles for more than three centuries.

That’s what the state of Mississippi said today at the Supreme Court.  The state that segregated schools based on race and denied the right to vote to its Black citizens even after that right was guaranteed by the 14th and 15th Amendments to the Constitution argued that they should be allowed to deny a basic right to a whole new class of its citizens:  women.  When a lawyer for the state of Mississippi, among all states, stood up before the highest court of the land and made that argument out loud, irony was cast upon the ash heap of history forever. 

The case made by the solicitor general of Mississippi to the Supreme Court of the United States amounted to this:  trust us, because we know what’s best for our womenfolk.  We should be permitted to tell them what they can do with their bodies and their lives, and we will take care that they follow our judgements by writing and passing laws which provide jail terms when they are violated.

The state of Mississippi made exactly the same argument when it issued its resolution of secession from the Union and voted to join the Confederacy.  They told the government of the United States, trust us: we know what’s best for our enslaved Black people, which is to remain enslaved and work without pay and be subject to punishment without recourse to law and be subject to be sold and resold at the will of the white men who own those enslaved people because we know what’s best for them.

After the Civil War rejected that argument, the state of Mississippi told the government of the United States, trust us: we know what’s best for our Black citizens, for that is what the 14th Amendment granted them, citizenship, and we’ll take care of them and educate them separately and unequally without recourse to law or the vote, because we know what’s best for them.  They did this by passing the Jim Crow laws which remained in effect from Reconstruction until past the dates that the Civil Rights Act of 1964 and the Voting Rights Act of 1965 became law.  It was necessary for the Congress to pass these laws because the state of Mississippi, along with the other states which comprised the Confederacy, not only ignored the 14th and 15th Amendments, but actively made them dead letters by the passage of their own state laws which regulated matters such as the right to an education, the right to vote, the right to own property, and even the right to walk down a street and speak freely.  They enforced these laws which violated the Constitution of the United States because they believed that something called “states rights” should be allowed to prevail over federal laws and the rights guaranteed by the highest law of the land, the Constitution.

Today, the same state stood up in the Supreme Court and said, trust us:  we’ve got a new law we’ve passed, forbidding women to get an abortion after 15 weeks of pregnancy, and we believe that law should be allowed to be enforced, because we, the state of Mississippi, know better than you do, or anyone else does, about what’s best for our womenfolk.  In fact, the solicitor general of Mississippi told the court, we think you should overturn Roe v Wade¸ and Planned Parenthood v Casey because the decisions women make about their bodies belong not to the women, but to the states, namely us, Mississippi.

Justice Samuel Alito expressed agreement with their case, repeatedly asking the counsel for the Center for Reproductive Rights and the counsel for the United States government, if the court in Brown v Board of Education overturned Plessy v Ferguson because that decision was wrongly decided, shouldn’t the court overturn another case that was wrongly decided, namely Roe v Wade, because the court could find that that case was wrongly decided too. Neither counsel pointed out the disingenuousness of Alito using Plessy, which Mississippi had used to justify its racist laws, and Brown, which Mississippi had fought against and ignored for more than a decade after it was decided while continuing to maintain its segregated schools, not to mention the manner in which Mississippi had violated the 14th and 15th Amendments for a century with its denial of the right to vote to Black citizens, not to mention its denial of other basic rights under the law it enforced during the same time.  

And then came Justice Brett Kavanaugh, who has apparently spent his time on the bench since he cried during his confirmation exploring new frontiers of tone-deafness, making his predictable argument that the right to abortion is not found anywhere in the Constitution, so shouldn’t the decision of whether or not a woman should be permitted to seek an abortion be left up to the states?  Here he is in full describing the argument Mississippi made in its brief to the court:

“I think the court has been forced to pick sides on the most contentious debate in American life, and to do so on a question where…the Constitution is neutral on the question of abortion.  The Constitution is neither pro-life nor pro-choice on the question of abortion…and therefore it should be left to the people, to the states, or to Congress…and because the Constitution is neutral…this court should be scrupulously neutral on the question of abortion, neither pro-choice nor pro-life, and because the Constitution doesn’t give us the authority…we should leave it to the states and we should be scrupulously neutral on the question…we should return to a position of neutrality on that contentious social issue rather than continuing to pick sides on that issue.”

This is flatly and outrageously false, and Kavanaugh knows it.  The Constitution in the 9th Amendment recognizes there are rights upon which it studiously remains “neutral”: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Among the unenumerated rights that courts have chosen to recognize and not remain “neutral” about are the right of citizens to a lawyer if charged with a crime, the right of citizens to buy contraceptive devices, the right of citizens to have sex that departs from the act of a man and a woman using the missionary position, the right of citizens to buy a house or obtain a job without discrimination on the basis of their race or religion, and the right of citizens to be educated without regard to race or religion. 

The irony of Mississippi using the argument that the “silence” or “neutrality” of the Constitution justifies its laws restricting the right to an abortion -- telling the court that the exercise or even existence of such a right should be left up to the states, namely Mississippi, when that state used the “silence” of the Constitution on, for example, education to justify its laws segregating the races -- rang through the Supreme Court like a bell that was tolled but unheard.

Outside the court, conservatives have taken up the cry of “my body, my choice” to justify refusing to be vaccinated against COVID, even defying rules set by the Department of Defense that all members of the military be vaccinated.  An appeals court has put a hold on enforcement of a Department of Labor regulation that requires companies with more than 100 employees to vaccinate their employees against COVID.  That case is making its way through the courts as we speak.  Look for irony to once again ring loudly but go unheard inside the Supreme Court when a lawyer for the conservative cause stands up and uses the slogan long trumpeted to support abortion rights to justify refusing to be vaccinated as a “personal” decision rather than a decision which can be required for the greater good of the citizenry at large.

Irony died a silent death today at the Supreme Court.  Disingenuousness and falsehood prevailed and will continue to triumph in this land so long as the hold on the court by the Republican Party lasts.  If the court overturns Roe v Wade, there will be a lawsuit seeking to overturn Brown v Board of Education on the basis that decisions about how children should be educated should be left up to the states or even to the parents, as the winning Republican candidate for the governorship of Virginia recently maintained.

I would invoke God to help us, but I’m afraid with the likes of Alito and Kavanaugh holding sway on this court, we will need more than that.

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