The Supreme Court lights yet another fuse that will blow up America.
A legally, intellectually and morally bankrupt majority of the U.S. Supreme Court is profoundly ignorant of its own bloody history.
Let me make this very clear at the outset: I don’t wish to debate the substantive issues of abortion. I don’t want to talk about whether life begins at conception, or the legal limits (if any) of a woman’s autonomy over her own body, or whether there is a right of privacy in the 14th Amendment to the Constitution. I have opinions on these questions and you can probably guess what they are. But that’s not the point of this article. As a historian I’m here to tell you that the Supreme Court’s decision to overturn Roe v. Wade, disclosed in a leaked document last week, essentially locks the United States onto a trajectory toward a second civil war. Before last week maybe America’s chances of descending into a violent dissolution within the next decade were, just a guess, 80%. Now I’d say they’re at 99%. That is what the Supreme Court has done for us, and it has nothing to do with what you, or I, think substantively about abortion.
Consider this quote:
“[T]he decision falls logically into place as one unusually bold venture in a desperate struggle for power, rather than being an evenhanded effort to resolve that struggle. And under close study it proves to be no less meaningful as a historical consequence than as a historical cause.”
Lest you think this was written about the leaked opinion this past week, it isn’t. That was written in 1978 by historian Don E. Fehrenbacher, not about the about the Dobbs v. Jackson Women’s Health Organization opinion of 2022, but the Dred Scott v. Sanford decision of 1857. In his Pulitzer Prize-winning book The Dred Scott Case: Its Significance in American Law and Politics, Fehrenbacher, who died in 1997, explained masterfully how the misguided and arrogant Supreme Court led by arch-racist Chief Justice Roger B. Taney lit one of the major fuses that blew up the nation into the bloody holocaust of 1861-65 which was necessary to get rid of slavery. To read this book today, in May 2022, is absolutely chilling. I wish somebody on today’s Supreme Court had read it before they embarked on this disastrous course. I don’t give a damn about who leaked the opinion, or why, or what Chief Justice John Roberts thinks he can do about it (in reality, not much). Those are parlor games. His Court, in thinking or hoping that it’s lessening partisanship in America, is doing the exact opposite: throwing gasoline rather than water on partisan flames.
In case you need a refresher on your pre-Civil War history, the Court’s epic 1857 self-immolation began with the legal case of a slave, Dred Scott, whose owner brought him into a territory where slavery had been prohibited by act of Congress. Was Scott still a slave, or was he free when he crossed over into free territory? Taney’s Court not only ruled that he was still a slave, but went far beyond that, overruling the Missouri Compromise and also purporting to decide that African-Americans had no legal rights at all in American society. This ludicrous and inhuman decision was an explosive torpedo fired directly up the rear end of a nation inflamed by abolitionist sentiment (in the North) and defiant, desperate attempts to maintain and expand the power of slaveowners (in the South). Slave power had already sought to force unwilling Northerners to help slaveowners recapture escaped slaves via the horrendous 1850 Fugitive Slave Law, to which the recent laws in red states deputizing ordinary citizens to punish women who have abortions are eerily similar.
Like Dobbs last week, the Dred Scott decision leaked before it was released. The soon-to-be inaugurated new President James Buchanan somehow got his mitts on an advance copy of the ruling and couldn’t help working it into his turgid inaugural address given March 4, 1857, two days before the release of Dred Scott. Buchanan smugly remarked:
“[I]t [slavery] is a judicial question, which legitimately belongs to the Supreme Court of the United States, before whom it is now pending, and will, it is understood, be speedily in finally settled. To their decision…I shall cheerfully submit, whatever this may be.”
Of course he knew what the decision was going to be, and heartily agreed with it. He may have genuinely believed the issue of slavery was solved for all time. Until the end of his awful single term as President, Buchanan blamed disunion on those damn abolitionists who just couldn’t leave the issue alone. You will hear something like this again in coming years, as conservatives continue to blame those damn liberals who just won’t sit down and shut up about the rights of abortion, contraception, same-sex marriage and privacy that have been taken away from them despite Constitutional guarantees. In fact, Clarence Thomas—easily the stupidest member of today’s Supreme Court, as well as a sexual harasser, married to an insurrectionist—said something quite similar just yesterday.
Let’s not kid ourselves. Despite the words of Justice Alito, another remarkable dimwit whose legal acumen is of decidedly low wattage, the Dobbs decision and the abortion issue are not about “returning the issue to the states,” as if he and the hard-right conservative fundamentalist bloc he represents on the Court would be perfectly happy to allow blue states to protect or even strengthen abortion rights, so long as red states were left alone to outlaw it. One could have been mistaken in 1857 for thinking that Dred Scott meant only that slavery was an “issue for the states,” and Massachusetts, the cradle of abolitionism, would be left alone to prohibit slavery so long as those nasty politicians like John C. Frémont and Abraham Lincoln would mind their own business and keep their damn hands off Alabama and Mississippi’s “right” to enslave human beings. Dred Scott was merely an interim step toward the ultimate goal, which was the total nationalization of slavery and the dismantling of any restriction on it, anywhere, at any level.
While Dred Scott was being decided, another case was working its way through the American courts, this one coming from New York, called Lemmons v. New York. Dred Scott was about whether the federal government had the power to abolish slavery in a territory, not yet admitted to the U.S. as a state. Lemmons was about whether a state prohibition on slavery could, by the transit of a slave into a free state, emancipate that slave. If the U.S. Supreme Court had heard Lemmons, as it looked like it would eventually do, and if Taney’s racist majority ruled that even states could not abolish slavery, that would have meant effectively that every state in the Union would become a slave state. Lincoln even warned that this was in the wind during the famous 1858 Lincoln-Douglas debates, when he was running for U.S. Senate for Illinois. Lemmons did not make it to the Supreme Court before the U.S. Civil War broke out in 1861, which made it moot.
Can anyone doubt that something similar will be attempted once Dobbs is officially promulgated? Or, if (and when) hard-right conservatives recapture Congress and the Presidency, probably through fraud or insurrection, that they won’t seek to abolish abortion everywhere, even in states whose majorities want to protect abortion rights? And it’s not just abortion rights. Contraception, privacy, same-sex marriage, and even freedom of speech and the rights of women and people of color to vote will all be on the table. Right-wingers won’t wait a single hour to attack these rights, now that they have more opening to do so now than they have in the past 49 years. “Vote Democrat!” will make no difference either. These rights will be attacked and dismantled. Democrats won’t lift a finger to preserve them.
I am not aware of any country or society in history, when they become as divided as America now is, coming back from the brink without large-scale violence and turmoil. Maybe—maybe—the dismantling of South Africa’s apartheid regime in the early 1990s; perhaps I can give you the benefit of the doubt on that one. But I remain convinced the United States is fundamentally broken. Our second Civil War won’t resemble the first one very much. Possibly it will look a bit like the Troubles, the 30-year slow-burn war in Northern Ireland from 1969 to 1998. But it will be very, very ugly. This does not end well.
It hardly matters whether the hard-right majority on the Supreme Court are actively trying to burn the country down, or whether they’re just too stupid to understand that that’s what they’re doing. Historians of the future will have to make that judgment. You can be sure that this week’s momentous events will feature prominently in the histories of the final days of the United States as a unified polity. This is not really about abortion. It’s about the collapse of a society.
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