Republicans beat war drums for states rights at Jackson hearing

Cornyn grills Judge Jackson on marriage equality.

Smacking their lips would be a fair characterization of how Republicans reacted to the prospect of Roe v. Wade being overturned this summer at the Senate Judiciary Committee hearing on Judge Ketanji Brown Jackson’s confirmation for the Supreme Court this week.  I don’t think I’ve ever heard more references to so-called new rights being found in the Constitution by activist Supreme Court decisions of the recent past.  The problem with that pesky Constitution, Republicans continually implied, is that it’s got that goddamned Ninth Amendment in there.

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Senator John Cornyn of Texas quoted the Ninth Amendment before he asked Judge Jackson what “other” rights she might find in the Constitution if she were confirmed.  Jackson demurred on that question, but not before reminding Cornyn that it wasn’t the Ninth but the Fourteenth Amendment, guaranteeing all citizens equal protection of the laws, that was behind Supreme Court decisions going all the way back to Griswold v. Connecticut establishing what Republicans refer to as new rights. 

This sent Cornyn into a direct attack on Obergefell v. Hodges, the Supreme Court decision which found a new right “not found in the Constitution” of same sex people to marry.  It seemed okay with him that 32 states had passed laws or amendments to their constitutions limiting marriage to between a man and a woman.  “When the Supreme Court decides that something that is not even in the Constitution is a fundamental right and no state can pass any law that conflicts with the Supreme Court’s edict, particularly in an area where people have sincerely held religious beliefs, doesn’t that necessarily create a conflict between what people may believe as a matter of their religious doctrine or faith and what the federal government says is the law of the land?” Cornyn asked.

“Well, senator, that is the nature of a right,” Jackson answered. “When there is a right, it means that there are limitations on regulation even if means people are regulating pursuant to their sincerely held religious beliefs.” 

In a video she released on Sunday in advance of the Jackson hearings, Senator Marsha Blackburn criticized the Supreme Court’s decision in Griswold v. Connecticut overturning state laws against contraception.  “Constitutionally unsound rulings like Griswold vs. Connecticut… confused Tennesseans and left Congress wondering who gave the court permission to bypass our system of checks and balances," Blackburn said in the video address. "It is the 11th hour and Judge Jackson's stance on the Constitution remains a secret."

The Griswold decision in 1965 was the Supreme Court’s first finding that at least five amendments to the Constitution provide citizens an implied right to privacy, and in the case of contraception, a right of “marital privacy.”  The decision was cited in the Supreme Court’s Roe v. Wade decision in 1973 striking down state laws against abortion. “This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or ... in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether to terminate her pregnancy,” the court wrote.

Blackburn seemed to be making the point in her criticism of the Griswold decision that states should be allowed to ban contraception if they want to, without federal intervention by the Supreme Court or the Congress for that matter.

Another Republican Senator stepped up and took a swing at Loving v. Virginia, the Supreme Court decision that struck down state laws banning interracial marriage.  Mike Braun of Indiana, in an interview with an Indiana NPR station, said he didn’t want a justice who will be an “activist” on the bench.  Asked about the Loving decision, Braun said, “If you're not wanting the Supreme Court to weigh in on issues like that, you're not going to be able to have your cake and eat it too. That's hypocritical.  Stick with interpreting the law. Don’t legislate from the bench,” Braun said, in a clear reference to what he thought Jackson might do as a Supreme Court justice.  Jackson herself is in an interracial marriage.

Braun tried to wiggle out of his criticism of the Loving decision later, telling NBC News, “There is no question the Constitution prohibits discrimination of any kind based on race, that is not something that is even up for debate.”

When Republican senators have to walk back statements seeming to endorse states having the right to ban interracial marriage, you know they’re not just flirting with a return to the days of states rights, they’re full on in its embrace.  Cornyn let his cat out of the bag over gay marriage.  Blackburn, a hard-right religious conservative from the state of Tennessee, said the quiet part of the anti-abortion movement out loud when she took a swing at contraception.

The Republicans on the Judiciary Committee just plain pissed off that they were confronted with a black woman under consideration for the Supreme Court, but they were comforted by the idea that overturning Roe v. Wade will be followed by overturning all the other new rights that have been established by earlier courts.

According to Republicans, the words “rubbers,” “abortion” and “homosexual” aren’t in the Constitution, so they want to overturn the rights to gay sex, gay marriage, interracial marriage and contraception.  Bye-bye 21st Century, hello 1950.