The Roe v Wade Reversal Can be Fixed
We just have to stick together and demand it
Written by Carolyn Bertolino and published in Medium.com
Late last week, I replied to a social media post without first having either read or paid attention to the news of the day. I had just gotten back from a hiking trip, and still in vacation mode hadn’t yet learned that the Supreme Court officially overturned Roe v Wade. I did, however, know from the document leak this past spring that it was imminent. My reply, to a post about our current government that did not specifically mention the decision, was about how optimistic I was that things in general were in the process of getting fixed.
I got criticized for it, so I replied with regret about having made remarks that seemed to make light of people’s rights being taken away that day. I also said that I think we can at least expand the supreme court and stop these last three illegitimately appointed justices from taking our rights away from us. My reasons for calling them illegitimate might be something you’ve already thought of or heard and are mentioned later.
Sometimes I can come off as callous or unrealistic because a lot of times the first place my mind goes with things that are affected by politics is to possible solutions. Yes, I know we lost a constitutional right this June, but I knew it was going to happen and now the focus is on getting it fixed.
The possibilities and the impossibilities
The Constitution gives authority over the structure of the courts to Congress, and the last time congress altered its size was in 1869. I’m not claiming it’s going to happen, but with 61% percent of the country supporting the unlimited right to abortion, and growing awareness about how the Supreme Court works and where its power comes from, this should be a simple fix.
For one thing, Senators Susan Collins (R-ME) and Joe Manchin (R-WVa) need to start trying to do something about having been duped when Gorsuch and Kavanaugh lied under oath about considering Roe v Wade to be settled precedent. That would help in two ways: by bringing awareness to the public about how corrupt and unqualified these Trump-appointed justices are, and by educating people on the fact that the court can easily be expanded to make up for it.
An impossible (for now) solution
Those perjored justices can be impeached in the house of representatives with a simple majority and removed by conviction in the senate but only if we add a seemingly impossible number of Democratic seats in November. Vulnerable states for Republicans seem to be WI, NC, FL, and OH.
Because it takes a two-thirds majority of the senate, 67 senators, to remove a supreme court justice, this is not likely. Republican Sen. Susan Collins already talked about the perjury on the day of the ruling. We have to emphasize the perjury, because justices who’ve lied under oath delegitimize the supreme court. That helps our case for using constitutionally appointed congressional power to increase the number of justices and dilute the votes of the illegitimate justices.
Also, we all remember Mitch McConnell and the senate essentially defecating on the constitution back in 2016. That’s when they refused to even hold hearings on Obama’s perfectly qualified, distinguished, middle-of-the-road, and praised by Republicans, nominee Merrick Garland, with the bogus claim that no hearings should be held in an election year. Then as soon as Trump got in, he nominated and managed to confirm Neil Gorsuch despite huge reasonable questions about his judgment. And the rest is history, with some bad luck thrown in, most notably the death of Justice Ruth Bader Ginsburg.
Possible solutions, a two-pronged approach
All we can do is what we can do. And we can do a lot, although whether we will or not is yet to be seen. At this time and with the way things are now, it’s probably not smart to assume the Senate will convict even if the House votes to impeach. No matter how good a chance we have of invalidating Manchin and Sinema, there’s no way to gain 17 Senate seats this year.
But the United States Congress can most certainly increase the size of the Supreme Court and invalidate the illegitimate justices. It’s been over 150 years since congress last changed the number of supreme court justices, now currently set at nine. The Necessary and Proper Clause generally spells out the authority of our legislative branch to legislate how all federal courts, including the highest one, are structured.
At the same time, Democrats need to continue working on catching up to Republicans in local and state legislatures. Republicans have a head-start dating back to 2009 or so, with the tea-party takeover. The Bernie Sanders movement and its subsequent organization Our Revolution has helped propel progressives into local elections, but we still have a long way to go. With this newly revived reconstruction-era conservative “states’ rights” movement taking hold all the way up to the Supreme Court, we have no choice but to ramp up our representation in local and state governments.
Of course, this next election also matters on the federal level. If we can’t get a simple majority this year to expand the court, we need to keep the House and add a couple senators as well.
The big picture
This is a very dark time for our country, and a lot of us knew there would be bad times to come back in November 2016 when Trump was declared the winner after losing the popular vote by two percent. Strictly because of the emphasis the electoral college puts on state residences, and the state residences of several thousand voters, we had to accept a president who got roughly three million fewer votes than his opponent.
It’s never good when the winner got less votes, as we learned in Bush-Gore. That’s partly because it’s harder to govern when the majority didn’t want you and partly because of other things in the cases of both Bush Jr and Trump.
The person who replied to my post was outraged that I could be optimistic on a day when we lost a human right. That is valid point, and I will be more mindful of how I come off in the future. It’s hard to convey in a social media post that the fall of Roe v Wade was absolutely going to happen as soon as Trump got his three justices, and that’s part of the reason I can still be cautiously optimistic about the future of our country. Not the present, but the future.
How we got here
It was obvious right when Trump was declared the winner that our democracy would either be destroyed or very damaged. Early that morning after the official election call, I remember saying to the person I was with “Well, I guess everyone will now see the full power of the presidency.”
That’s because I, and a lot of other people, knew that most presidential obligations are unenforceable. The earliest example was Trump and the Republican party’s complete distain for the Constitution’s Emoluments Clause, which was designed to prevent conflict of interest just like the one we had with our 45th president owning and profiting from his own businesses.
Not only does the former president’s business manufacture products mostly overseas, but his hotels and resorts also profited from his presidency. We saw that play out when foreign governments and lobbyists rented rooms and the attorney general booked a party at his DC hotel. We also saw it when the military changed its route to enable Trump’s Ireland hotel to be receive profits for service members’ lodging easily influence numerous policy decisions.
The president’s constitutional requirement to enforce the laws that Congress passes was taken with a grain of salt during the Trump administration as well. In the summer of 2017, Russian sanctions were passed with a veto-proof majority, yet the president “declined” to administer the sanctions until he was successfully pressured to the next year.
A guy like that being able to appoint three justices, two who lied in their hearings and one who wasn’t even his to nominate, is a travesty that needs to be reversed. Now it’s time to follow the constitution in the way it was intended to fix what was done when it was used in a way that was not intended.
Keeping our heads in the game
It’s important to be aware of what got us here, to a place where five people can give states the right to make essential healthcare illegal. The future will only be worse if we don’t do what the Constitution gives us the power to do, and right a wrong made to the structure of the Supreme Court. The legislature has the power, and they answer to us. They’re just waiting for us to tell them what to do so let’s do it.