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Ruh-Roe 11 min read


The Supreme Court leak that set the judicial and political worlds on fire, a longtime NYC mayor's life in the closet, the death of another print publication, and colorful profiles of crazy characters.

By Cary Littlejohn
Ruh-Roe Post image

It was an ugly week.

Late Monday night, news broke that there had been a leaked draft Supreme Court opinion announcing that Roe v. Wade and Casey v. Planned Parenthood would be overturned, which would effectively end legal abortions as a guaranteed right for women. There will still be places that will allow abortions, but in almost half U.S. states, there are trigger laws (those that will spring into effect once Roe is officially overruled) and ghost laws (those that were on the books before Roe was decided and never formally repealed) that will make abortions inaccessible for millions of women.

I can tell you exactly what it felt like to watch it play out on social media Monday night: It felt like Jan. 6, 2021. I wasn’t reporting like I was back on that day, but the feeling of watching something that was supposed to be safely above the fray come under attack was remarkably similar. American democracy, and its progeny, like our complicated judicial processes, are expected to be predictable; it’s what gives us our stability atop the world’s ordered governments. I don’t mean that individual outcomes are foregone conclusions; there is still anticipation and uncertainty when awaiting election returns or jury verdicts. But we know the mechanisms by which decisions are made; we know how the systems work. And in the legal system, especially when it reaches the level of the United States Supreme Court, there is an expected way things will be handled. That’s why, in the nearly 50 years since Roe and the 30 since Casey, challenges have come and gone, but courts at all levels have recognized the right because that’s how things happen in this country. Not anymore, it would appear.

Certainly, there are a great many people who won’t find the overturning of a 50-year-old precedent that established a right to abortion to be anything but a positive thing. But that view, even for as long as this has been an animating issue for the conservative right, would be shortsighted. Much was broken and undermined to get this result they so desperately sought.

First, there’s the reality that, going forward, women are going to have fewer rights than they’ve known for the past five decades. None of that is to say that abortions have been easily accessible in that time, certainly in the states that I’ve called home in my life (Tennessee, Mississippi, Missouri, and Wyoming). But women who have no idea of this raging battle, now just girls, are going to grow up in a country that has officially stamped its lack of respect for them into the law of the land. They, like their predecessors, will know innumerable hardships by sheer fact that they are women, but my contemporaries always seemed to take some degree of solace in the fact that Roe stood as a bulwark. Soon, that will be a thing of the past.

Some will argue that’s simply hyperbole. They’d be wrong. We’ve already seen, in response to the leaked opinion, a rush in some states not just to restrict the procedure but to charge the women criminally with homicide. A slippery slope exists if that sort of bill is passed, since it would grant constitutional rights to the unborn at the moment of fertilization, which could affect in vitro fertilization and emergency contraception options.

A governor candidate in Wisconsin named Rebecca Kleefisch said she opposed exceptions to limits on abortion even for women who’d become pregnant as a result of rape. This is ugly, and any attempts to spin it otherwise is simply disingenuous.

The reality of the Supreme Court itself is an ugly testament to all those supposedly freedom-loving supporters of its decision. Five of the six conservative justices on the Court were selected by Republican presidents who weren’t popularly elected. The foundations of America’s democratic process are undermined by this fact. Add to it the fact that a majority of Americans do not believe that Roe v. Wade should be overturned (and that’s been the prevailing thought of the majority for more than three decades), and it’s especially sad to see so many uncritically supporting the decision.

The saddest thing about the rhetoric surrounding the issue is the mischaracterization by the anti-abortion crowd that pro-choice folks are necessarily pro-abortion, as in to say, they’re calling for them to be the solution for every woman across the board. The reality is anything but. Pro-choice supporters simply mean what’s plainly stated in their name: They support enough freedom and personal autonomy for a woman to choose what’s right for herself.

It would be funny if the hypocrisy weren’t so rank and the consequences so dire that so many of the very same people who belly-ached their way through a pandemic, one of the worst global health crises we’ve seen in our lifetimes, that they should be free to do with their bodies whatever they want, namely not have to their faces covered to prevent easy transmission of an airborne virus. In those moments, bodily autonomy was the rallying cry. How quickly such concerns have faded.

But the truth of the matter is this: These policies are ugly. I’m sure I’d heard it heard it somewhere before but I distinctly remember a moment in law school where a smart and articulate classmate quipped that it was amazing how pro-life advocates seemed so utterly unconcerned with the quality of life for people once they’re outside the womb. It was not an original thought; in fact, George Carlin made the point a long time ago in a skewering of the concept of pro-life policies that recently went viral again. It has all the hallmarks of tightly honed material, with the rhythm and pacing and intonation. But it has the undeniable ring of truth, especially when he says, “They’re not pro-life; they’re anti-women. They don’t like ‘em.”

It’s not hard to see how he reached the conclusion. For decades now, it’s just been ugliness all the way down, and in that sense, a truly monumental revelation this week just seems like business as usual.

Ten Worth Your Time

  1. Here’s the story that broke late on Monday night, revealing an unprecedented breach in Supreme Court decorum whereby someone with access to the draft opinions of the justices handed it over, in full, to Politico. Don’t skip over the 90-plus page draft opinion itself which, while dense in constitutional law in some parts, needs to be read to be fully appreciated for how radical a departure it represents from the holdings of Roe.

  2. I found The Atlantic’s Adam Serwer’s piece on Alito’s draft opinion particularly resonant, especially this paragraph: “Alito claims to be sweeping away one of the great unjust Supreme Court precedents, such as Dred Scott v. Sanford, which held that Black people had no rights white men were bound to respect, or Plessy v. Ferguson, which upheld racial segregation. But in truth, Alito is employing the logic of Plessy, allowing the states to violate the individual rights of their residents in any way their legislatures deem ‘reasonable,’ as the opinion in Plessy put it . Homer Plessy’s argument was that the segregation law violated his Fourteenth Amendment rights, and that those rights should not be subject to a popularity contest in every state in the union; what Alito describes as a ‘restrictive regime’ of constitutional protection for abortion rights is the kind of safe harbor Plessy himself sought.”

  3. When I was in grad school in Columbia, MO, I reported on the aftermath of an attack on the local Planned Parenthood facility. It was firebombed by a radical opponent of abortion who’d broken in and tossed a Molotov cocktail, setting the building on fire. I came in the aftermath, and I met with clinic officials who were distrustful of me, not because they viewed me as part of the problem but because they resisted answering the questions plainly for fear of seeming militant, of seeming to invite more attacks by sounding too confident. Luckily, the clinic was only closed for about a week, so women didn’t miss out on services for too long. I recount that story to reiterate a basic truth: In many parts of the country, it’s not like women’s health services haven’t faced an uphill battle for a long time. So this story in the New Yorker about the difficulties and uncertainties faced in the Midwest felt incredibly familiar and all the more disheartening.

  4. I was happy to see that so many of the male podcasters that I follow who talk about politics, legal issues, or culture ceded the floor to female authorities on the abortion issue. Theirs were the voices that needed to be heard. But even more than that, there’s a perfect podcast for this particular issue: a wonderfully incisive Supreme Court-focused podcast hosted by three badass legal experts, all of whom are women. Listen to this episode of Crooked Media’s Strict Scrutiny as they break down the news in an emergency pod soon after the Supreme Court leak.

  5. There are few instances where my legal training comes rushing back to me more dramatically than in the face of a big Supreme Court decision. There is a  bit of woeful resignation in the stories, like this one from Adam Liptak of the New York Times, that look beyond the seemingly imminent reversal of Roe and wonder if other rights, like same-sex marriage, might be on the chopping block as well. Liptak is an experienced chronicler of the Supreme Court, and his account makes it easy to follow the reasoning enumerated in Justice Alito’s draft opinion as threatening to same-sex marriage if carried to their logical next steps. As a side note, Liptak’s piece, as purely a piece of journalism, had the perfect kicker at the end, where he brilliantly illustrated the blatantly political nature of the rationale of President Trump’s Supreme Court nomination. When setting out his standards for selecting a justice back in 2016 to 60 Minutes, Trump said the Court should overrule Roe, a precedent that had been in place for more than 40 years. But when asked about the same-sex marriage decisions, which had been issued only the year prior, Trump said, “It’s law. It was settled in the Supreme Court. I mean, it’s done.” It’s not surprising that Trump doesn’t have consistent views on issues like precedent and the legal concept of stare decisis, the norm of prior decisions being binding on a court, but it is notable that the justices who’re likely votes to overturn Roe were asked pointedly at their confirmation hearings about Roe and its power as precedent. While they certainly left wiggle room that anyone trained in law can appreciate, it’s hard not to come to more general conclusion that they perjured themselves.

  6. Same-sex marriage was never an option for the longtime mayor of New York City, Ed Koch. He was not ever to publicly come out as gay. But in a touching profile long after his death, two New York Times reporters reveal the complex interplay between the man’s hidden sexuality and how it affected his political decision-making. It’s an unbearably sad story, but beautifully written. This section from the lede was particularly well done: “But as his 70s ticked by, Mr. Koch described to a few friends a feeling he could not shake: a deep loneliness. He wanted to meet someone, he said. Did they know anyone who might be ‘partner material?’ Someone ‘a little younger than me?’ Someone to make up for lost time? ‘I want a boyfriend,’ he said to one friend, Charles Kaiser.”

  7. Recently, I wrote about the big change that happened at the newspaper for which I’d written for the past two years: It was sold. It was unexpected to those of us on the ground, but we knew, in many ways, it shouldn’t have been. It is a brutally tough thing putting out a print newspaper with a small staff. Ours had already been cut from a daily (six days a week in print) to now just two issues in print a week, and during the pandemic, many other papers, big and small across the country, met the same fate. The Washington City Paper, a powerhouse of the alt-weekly magazine scene for more than four decades, just recently joined that growing list. It’s a sad day to see any journalistic enterprise retreat from print publications, but this was one truly stung because it seemed like a giant had been felled. The Washington City Paper, like so many alt-weeklies, was a training ground for some truly great journalists, and its outgoing issue celebrated bits and pieces of that lofty past. Just the memories about the place, the behind-the-scenes look at what it took to put out the paper and to report the stories it published, are enough to fill a book.

  8. Just let this incredible lede of a recent Washington Post Magazine story do its job and suck you into its story: “I clung to a rope on a nearly vertical hillside in rural Ohio, gingerly inching my way down toward a hand-dug shaft that was said to conceal an enormous cache of solid gold bars. I lost my footing and started to slide, but the rope saved me from rolling 70 feet to a creek below or crashing into the trunks of pines and beeches that towered over the slope. The old beech trees were especially haunting: Their smooth bark was elaborately carved with rabbits, human faces, hearts, letters, a boat and what looked like crude blueprints. The trees told an epic story, according to the treasure hunters I was with. The tale featured the outlaw Jesse James, a powerful secret network of collaborators, and vast quantities of gold they allegedly buried in ‘depositories’ from here to Utah and New Mexico to fund a Confederate uprising after the Civil War. The notorious gunslinger had been a Confederate guerrilla during the Civil War before turning to robbing banks and trains. The treasure hunters were intrigued by a controversial theory that he was part of an underground effort to help the South rise again.

  9. I look at a few different podcasts from cast members of The Office that dig into the history of the show, and I can’t help but feel like they're the result of an intersection of two powerful forces in culture today: nostalgia-linked IP and podcasts. For many, the show was the biggest thing they've ever done and will likely ever do. It’s only natural that they should take advantage of the incredibly long-lasting popularity of the show to make more work for themselves. But then there’s Creed Bratton. I would have readily lumped him into that former category, that he’d essentially been a regular everyman, a nobody as far as Hollywood was concerned, before The Office. But then I read this profile of the man in Esquire and learned how incredibly wrong I was.

  10. Another good profile about a profoundly less interesting man than Creed Bratton is found in GQ’s recent profile of someone called the Liver King, on various social media platforms that I don’t frequent. His schtick is simple: Live by the tenets of ancestors, like cavemen. He supposedly eats a pound of raw liver every day, sleeps on wooden slats, and does ridiculously extreme feats of physical strength in an attempt to gain even more followers on social media. He seems like an embodiment of everything that’s wrong with a certain strain of modern men, doubly dangerous because he’s working so hard to convince other men that he’s the solution, not the problem.

Culture Diary

Here’s a collection of what I’ve been watching in the past week.

Remember: The legend for my list was stolen from Mr. Soderbergh, where ALL CAPS represents a movie, Sentence Case is a TV show, ALL CAPS ITALICS is a short film, and Italics is a book. A number in parentheses after a TV show highlights how many episodes I watched. An asterisk after an entry means it’s a rewatch. The source of the movie or show, whether streaming service, physical media, or in theaters, is shown in parentheses as well.

5/2: The Offer (3) (Paramount+); Better Call Saul, S6 (AMC/AMC+)
5/4: Moon Knight (Disney+)
Under the Banner of Heaven (Hulu); Winning Time (HBO Max)
5/6: We Own This City (HBO Max)
5/7: The Offer (Paramount+); Atlanta, S3 (Hulu); Outer Range (4) (Amazon Prime)
5/8: PADDINGTON (Netflix); DOCTOR STRANGE IN THE MULTIVERSE OF MADNESS (Theater); Winning Time (HBO Max); Barry, S3 (HBO Max)

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