Recapping the Supreme Court hearing Dobbs against Jackson Women’s Health Organization On Wednesday’s oral argument, a MSNBC panel of Jose Diaz Balart (an anchor) and three left-leaning lawyers lost their heads over the abortion case. As pro-life laws were likened to segregation, conservative justices were described as “white men” and attacked personally by the group, despite Justices Thomas & Barrett.
Failed New York City mayoral candidate Maya Wiley claimed it was obvious Mississippi’s law was bad and unconstitutional simply because it is Mississippi, “You know, this is fundamentally when you hear this argument that Mississippi, Mississippi, the state that fought school integration — the state that has so long fought against the fundamental rights other groups people is actually saying ‘You know what? You can rely upon history. No matter how sexist, no matter how racist, no matter how divisive, in deciding how much this precedent should stand.'”
Then she claimed Justice Kavanaugh’s assertion that the voters and the legislature should decide on abortion was just like voter suppression. She also claimed that the argument that the voters and the legislatures should determine the matter of abortion was similar to voter suppression. It proved that the more someone says “literally,” they are less literal.
And to Neal’s point about a Justice Kavanaugh “saying let the legislature sort it out,” because I heard that loud and clear, that his leaning is to say let’s leave it up to the states, this is the same Supreme Court that has literally opened the floodgates to voter suppression after literally spending 100 years fighting to gain access to the ballots. And so much voter suppression happening across the country, but now we’re supposed to leave it up to legislators that are actively working because of this Supreme Court’s recent precedent coming out of South Carolina, former Confederacy to say ‘yeah, go back to your old ways. It will make it more difficult for voters to vote. This is America’s current reality and is ignored by many arguments.
Neal Katyal (ex-Solicitor General of Obama Administration) later stated that she “finds it offensive” to talk about Mississippi SolicitorGeneral citing Brown v. Board of Education as evidence that precedent does not need to be treated as sacred. Katyal & Diaz-Balart think that abortion is something that shouldn’t be allowed to pass laws. Moreover, disagreeing with them makes one similar to segregationists. Diaz-Balart turned back to Wiley: “…that has kind of, if you look at the history of this country, you know, it’s been precisely the effects of people saying ‘I’m not going to get involved on that.’”
Naturally, Wiley agreed to the Plessy v. Furgeson Comparison Justice Alito was also condemned for making the statement, “as though we were not talking about protection rights, as it is one thing.”
Without a single ounce of self-awareness, Wiley then blasted the conservative justices for not adhering to precedent and instead putting their own beliefs before the law, beliefs like, “‘Well, I’m a white man, I’m fine, I don’t see the problem with Mississippi saying, I mean why should we, really?'”
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The transcript of the December 1, 2009 show is available here:
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MAYA WILEY: You know, this is fundamentally when you hear this argument that Mississippi, Mississippi, the state that fought school integration — the state that has so long fought against the fundamental rights other groups people is actually saying “you know what? You can rely upon history. No matter how sexist, no matter how racist, no matter how divisive, in deciding how much this precedent should stand,” and to hear Justice Alito say why, what did courts do in 1864, 1864, well you know what? As a black woman I certainly hope that is not our historical litmus test about how we protect our rights today.
And to Neal’s point about a Justice Kavanaugh “saying let the legislature sort it out,” because I heard that loud and clear, that his leaning is to say let’s leave it up to the states, this is the same Supreme Court that has literally opened the floodgates to voter suppression after literally spending 100 years fighting to gain access to the ballots. And so much voter suppression happening across the country, but now we’re supposed to leave it up to legislators that are actively working because of this Supreme Court’s recent precedent coming out of South Carolina, former Confederacy to say “yeah, go back to your old ways. Make it harder for people to actually vote.” This is the reality of America today and this is the grounded and experiential reality that is being ignored in so much of the arguments that we heard.
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NEAL KATYAL : Before I start, there is one thing that I need to say. In court, today’s Mississippi Solicitor general repeatedly argued that this was like the Brown Board of Education vs. Defendant These were ruled out Plessy v. Furgeson of the 1896 case that said separate, but equal cars in a train were constitutional. This is offensive. He concluded his argument with the statement that
This is false Brown v. Board Education. The opposite is true Brown. That is what I am referring to. Brown v. Board of Education overruled maybe one of the worst Supreme Court cases in American history that was so fundamentally in tension with our nation’s ideals. But what happened next? Brown do? It said “actually we don’t leave that up to a majority vote. We say, we the Supreme Court get into the thicket and say this is off of the table in our democracy.” That’s actually the opposite of what Justice Kavanagh was trying to say today. Justice Kavanaugh was saying “let’s just leave this up to the people and let them decide”
JOSE DIAZ-BALART: Yeah, “Let’s not, I guess, dirty our hands on decisions like this. Let’s be objective and remove ourselves from that, but that, that has kind of, if you look at the history of this country, you know, it’s been precisely the effects of people saying “I’m not going to get involved on that.”
WILEY: Yeah, I think, you know, part of, and I want to echo because Neal’s outraged and I hope I was sufficiently by Justice Alito who was comparing this actively, kind of “We overruled Plessy, so shouldn’t we over rule this?” as if we are not talking about protecting rights, as if it is the same thing. But, you know, what is so important to get to here is that this is exactly why we talked about the process of confirmation. And the fact that there was such an intentional effort to design this court. And one of the things that Justice Roberts has cared about is, despite whatever his personal ideas or beliefs are is to say “precedent has to be about principal.” Not about infusing our own personal judgements as jurists into decision making, but essentially that is exactly what we’re seeing and hearing in these kinds of “Well, I’m a white man, I’m fine, I don’t see the problem with Mississippi saying, I mean why should we, really?”
One of the things that Ruth Bader Ginsburg talked about publicly is the difference that it made to have a woman in the back room where it happens, right, to quote Hamilton. In the room where it happens to say here is what we’re missing about the experience. When Justice Thurgood Marshall on the Court with Justice Sandra Day O’Connor, it was in that backroom where Thurgood Marshall could explain to her the real daily lived relevance of affirmative action that is one of the reasons that her position was to protect affirmative action because weren’t yet there as a society. She heard a series of stories she didn’t have. Well here, the question is do we have justices actually listening? And really applying the principals of precedent? That was a huge conversation that was happening, but it was subtext. But I think we have to lift and elevate that out.
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