Opinion: Happy Fourth Commentary on Our At-Risk Democracy by Steve Parks

In six years – roughly covering one presidential and approaching an off-year election – we’ve witnessed two of the three branches of the federal government subvert foundations of our democracy, seeking in their arrogance and disrespect for the constitution and legal precedent to place personal ambition and bias – whether political or religious – over the majority will of the people. Abetting the executive and judicial branches in their lust for imposing authoritarian power, the legislative branch, particularly the U.S. Senate under the Republican leadership of Mitch McConnell, usurped the prerogative of two U.S. presidents – each elected by popular-vote majorities – to nominate associate justices to open Supreme Court seats.

As a result, a Supreme Court with a 6-3 majority of Republican-nominated justices, made two of the most egregious decisions in high-court history on back-to-back days near the end of its delegitimizing term. But then, the “Ruthless Six” – made possible by the death of Justice Ruth Bader Ginsberg and, ironically, that of her friend and judicial opposite, Antonin Scalia – capped that pair of undemocratic and essentially  unconstitutional atrocities with a decree crippling the Environmental Protection Agency’s efforts to curb fossil-fuel burning that threatens human habitability of our planet. And, oh yes, just to thumb their noses at the fundamental constitutional principle separating church and state, the 6-3 majority sanctified the Christian right to hold prayer vigils at midfield of high school football games. What if the case involved an Hispanic coach conducting Voodoo sacrifice of hens instead? Would Justice Clarence Thomas and others in the majority vote to protect that religious practice? I suspect not.

It’s doubtful that these cases, risking loss at the highest level, even would have been presented had the first Trump pick (Neil Gorsuch, whose mother sought to defund the EPA as Ronald Reagan’s pick to run the agency) and the last (Amy Coney Barrett, a follower of Christian charismatics espousing “Handmaid’s Tale” anti-feminism) had been nominated instead by Barack Obama and Joe Biden – and had received constitutionally required consideration.

Here’s how Republicans cheated us – a clear majority of Americans – of our rightful day in the Supreme Court. When Associate Justice Scalia, an “Originalist” mentor to fellow ultra-conservative Thomas, died of natural causes on Feb. 13, 2016, Obama nominated U.S. Appeals Court Judge Merrick Garland, now the U.S. Attorney General, to Scalia’s seat. But McConnell claimed a made-up precedent in refusing Garland even so much as a hearing, much less an up-or-down vote, with nine months left before Election Day, and 11 months remaining in Obama’s term as president. In fact, McConnell said of his defiance: “One of my proudest moments was when I looked Barack Obama in the eye and I said, ‘Mr. President, you will not fill the Supreme Court vacancy.’ ” This is the same guy who said in more-or-less the same terms that his top legislative priority shortly after the 2009 inauguration of Obama and the 2021 inauguration of Biden was to make each one a single-term president.

My thought at the time of the McConnell-initiated stalemate was that Obama, arguing that the Senate abdicated its constitutional advice-and-consent duty, should APPOINT Garland and let judges sort it out. With the Supreme Court, short-handed with four justices leaning conservative and four leaning liberal following Scalia’s death, any decision by lower courts might have prevailed. But with everyone, including FBI Director James Comey, expecting Hillary Clinton to be elected president, Obama’s people figured such a provocative step would benefit Trump. And then Comey reopened the email investigation of Clinton just over a week before Election Day 2016.

McConnell and Trump celebrated their undeserved presidential/Supreme Court bonanza by granting Gorsuch an associate justice seat he would not have received except by circumstances including, among other things, Vladimir Putin’s hacking to Trump’s electoral benefit.

Now, let’s turn to the very end of Trump’s two-impeachment/deserving-of-three single term. Ignoring the so-called precedent he deployed to rob Obama of his Supreme Court nomination, McConnell shamelessly jammed through the nomination of Barrett barely a week before Election Day 2020. Never mind his 2016 Presidential Election Year “precedent” that left incumbents, apparently only Democrats, ineligible to make a Supreme Court pick. 

So that’s how we got to a place where the Supreme Court ruled on successive days that babies not otherwise likely to have been born in certain states might live just long enough to be shot in grade school. The grisly irony, I suppose, is that AR-15s may be hard to conceal, letting these Second Amendment Supremacists off the hook. Think of the rich hypocrisy. For the near-half-century since Roe v. Wade became the law of the land, opponents cried foul over judges who made law from the bench while ignoring states’ rights. And now they rule from the bench that states who passed laws protecting its citizens from those who carry concealed firearms on the streets must now submit to the opinions of judges protected by round-the-clock U.S. Marshals Service. Worse, if that’s possible, four male justices, one faith-based female and a semi-concurring white male chief justice presume to rule for all women who face what should be her choice of procreative prerogative. Freedom of religion, anybody? Six Catholic justices of nine on the Supreme Court. (One Catholic, Justice Sonia Sotomayor, issued her vociferous dissent.) Let’s rebalance the court by adding one atheist, one Jew and a Muslim. Oh no, but that would be an even dozen. So throw in a Unitarian to break the tie.

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Regarding RIP Roe v. Wade: My wife’s personal experience and my participation in her decisions inform me in just a few of the myriad issues facing many pregnant women. My wife is and was then a mature adult with the full support of a then-gainfully employed, now-retired husband. Still, our difficulties were not insignificant. Her (I like to say “our”) first pregnancy went very well until delivery, when our soon-to-be-first-born’s shoulders and turn of the child’s head were not aligned with the birth canal. After 18 hours of pushing so hard the whites of her eyes turned bloodshot-red, her obstetrician declared a C-section emergency. Another two hours later our son was delivered, unscathed, while my wife looked as though she’d been in a prize fight.

“Our” second pregnancy ended way too prematurely. Ignominiously, for sure, if you consider a three- to four-week embryo a viable human life. For my wife it was a sharp pain in the belly and a trip to the bathroom where she expelled a pool of blood. Summoned as a witness, I could detect nothing more definitive than a bloody swirl in the toilet. Our pediatrician told us the expelled embryo would have been between the size of a pinpoint and a poppy seed at the time. Ours was a shared disappointment, for sure. But we never considered it the loss of a human child. More likely this was a rejection, common with any introduction of foreign organisms into one’s body, resulting in this case in miscarriage. Bur imagine women in some states being prosecuted for suspected abortion under such circumstances. Or their enablers. Outed by nosy neighbors with an agenda.

With no possibility of criminal investigation back there in the more enlightened 1980s, we recovered from our early miscarriage disappointment quickly enough to achieve a third pregnancy. Again, it went well until a procedure known as amniocentesis to detect birth- and life-threatening defects that might risk either or both the fetus and the mother. As it happened, my wife again felt a sharp pain one evening and, during a scheduled pediatric visit the next day, no fetal heartbeat was detected. The four-and-a-half month fetus was dead, strangled we later learned by strands of the amniotic band that also cut off formation of its hands and feet. But my wife still had to deliver the body. I alone asked to see it. Him it turned out. He would have been a son. I secretly named him Luke. As I viewed Luke’s pre-born remains, my wife was still sleeping in recovery of her 40-hour delivery alleviated only by drugs that might now have been unavailable to her had a half-formed fetus maintained a heartbeat.

“Our” fourth pregnancy in four years took my wife past her 40th birthday. Medical notations cited “advanced maternal age” as a recommendation for amniocentesis. Despite bad previous experience, we needed to know what we might expect in terms of health and survivability on what was likely our last chance. No problem on that account, we were told. But we also wanted my wife’s mother, in leukemia death throes, to hear the name and gender of her second grandchild. That part was achieved. However, unexpected spotting revealed that my wife was exhibiting “low-placenta” symptoms possibly resulting in her bleeding to death if such an episode were to occur when someone else was not available, such as myself, who was then working full-time. As a result of her diagnosis, my wife was confined to Stony Brook Hospital for nearly three months, alternating between pediatric and delivery floors, where she was pharmaceutically discouraged from delivering a baby with under-developed lungs. With no family on Long Island where we lived at the time – her parents and mine lived in Maryland – we sent our 3-year-old son to live with my parents in Easton. I visited him only for his birthday on Dec. 3, not long after preparing a Thanksgiving dinner shared with my wife at the hospital. My parents drove our son to Long Island on Christmas Eve in time for our daughter’s birth on Dec. 27. Choosing vaginal birth over another cesarean, my wife and baby were home in one day instead of six.

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Ours was a happy ending with two healthy babies, now 30-something adults, and complications not uncommon in pregnancy. Yet a court, any court, but particularly one of mostly elderly males, including one likely misogynist and pornography pervert, presumes with no credentials other than a law degree and a warped sense of Christian morality, to stand between a woman, her womb, her doctor and the presumed father-to-be. Listen to what Clarence Thomas says comes next on the nullification list: same-sex marriage, contraceptives (sex for pleasure or love to be reserved only for begetting birth) and certain sex acts labeled “sodomy” – even in the privacy of consenting adults’ bedrooms. If you want a Supreme Court definition of obscenity, this is it. Everything we can horribly imagine is on the wish list of Clarence Thomas, excepting that of his miscegenist marriage. Perhaps he and his wife qualify for the “Insurrection Exception.” Ginni Thomas’ husband was the only justice to vote against forcing Donald Trump to surrender documents that the Jan. 6 Committee is now using to make its case against presidential treason.

Impeaching Clarence Thomas, a richly deserving but ultimately futile congressional effort, would nevertheless send a warning shot to get the attention of the chip-on-his-shoulder justice who now favors hearing a case favoring state legislatures over courts in deciding election disputes. (Presumably that would not apply to 2020, but no affront to legal precedent would shock me with this cadre of life-appointed anti-(D)democrats – small and capital Ds intended. Other than that, the best remedy is to vote, Vote, VOTE for Democrats in any election for any office. Republicans have grotesquely abused their unearned minority power, amplified by House district gerrymandering, the Electoral College and the two-votes for every state represented in the U.S. Senate. Not to mention the filibuster.

Here’s what’s at stake and can be, even if it’s a long shot: Democrats, with the White House and the deciding vice-presidential tie-breaker on their side, could pass laws codifying national abortion-rights if two more Democrats were elected to the Senate. Filibuster objections by Joe Manchin and Kirsten Sinema be damned. But perhaps the longest shot: Democrats must prevail in holding the House majority. Beyond that, each state and local race requires every American who values preserving democracy and the freedom of women to choose and the rest of us to choose against a gun-toting carnage of children and innocent bystanders to stand and be counted. You can choose an attorney general who will decide against, regardless of Roe v. Wade’s demise, criminally prosecuting women seeking abortions or those charged as “accessories” for giving them a ride to a clinic or  to cross state lines.

Beyond that, we as the “American Majority” can decide to engage in nonviolent civil disobedience in the Martin Luther King Jr. tradition. We can encourage prosecutors in states where abortion is now a crime to issue tickets to violators instead of imprisonment. And then suspend the fine. Take that Justice Samuel Alito! Or how about flooding districts in which such abortion-related prosections are being pursued with prospective jurors who can exhaust voir-dire exceptions, thereby guaranteeing a hung jury or acquittal. Not to mention the futility – considering our generations-long losing war on drugs – of preventing medical abortion pills from being sent to women in need, even if they have to spring for a post-office box drop-off. Go ahead and try to raid the post office, Republicans. That’ll work in your local community.

The Supreme Court, no doubt unintentionally in its grab for moral power, has gifted Democrats with just what they need to survive and even benefit from a bleak midterm-election prognosis. Everybody assumed Hillary would win in 2016. Now everybody assumes Republicans will prevail in the 2022 midterms. The Supremes may have vetoed that assumption if Democrats, particularly women, show up in record off-year numbers.

It can be done. Republicans may well have overplayed their hand – particularly if they think Trump is a trump card.

Steve Parks is a retired daily newspaper journalist now living in Easton.