They Told Us What Would Happen

By Don Mohler

At 10:00 A.M. on June 24, 2022 in a 6-3 vote, the Supreme Court of the United States overturned 50 years of established law and obliterated a woman’s right to choose. Millions of Americans reacted with shock, outrage, and despair. They screamed, “What the hell just happened?”

Unfortunately, we are what just happened. We are to blame for this dystopian decision. As Maya Angelou famously stated, “When someone shows you who they are, believe them the first time.”  Well, the right wing in our nation has been telling us who they are for decades, but we simply looked away.

Americans are exhausted, and they’ve been exhausted for a while now. They’ve embraced the idea that “both parties are awful” and “my vote really doesn’t matter all that much.” Today’s decision debunks both of those myths.

And here is the dirty little secret: the Republican Party encourages those sad realities. They want you defeated and discouraged. They want you to turn off the news (except, of course, for Fox News). They relish disorder. They want you to be angry at the dysfunction of government. Why? Because they believe their base is more passionate and more motivated than your base, and the more they can drive the mainstream into a fetal position, the more likely it is that they will prevail. This took place in the bright of day. They didn’t hide it. In fact, it was there for all to see, but we were just too damn busy to pay attention.

Regarding this specific ruling, I’ve written about the Federalist Society in previous blogs, but in light of this decision, it is important to review just who and what they are.  This obscure group whose official name is “The Federalist Society for Law and Public Policy Studies” was formed in 1982. This tiny cabal has become the nation’s most influential legal organization. Mitch McConnell and his cronies at the Federalist Society have been working to reshape the federal judiciary for decades.  In a 2018 interview with Time Magazine, McConnell said, “You could argue that it is my top priority. The impact that this Administration could have on the courts is the most long-lasting impact we could have.”  This group clings to the judicial philosophy of “originalism,” meaning that if the specific words of an individual protection was not enumerated by the Founding Fathers, it is not then a protected right. If it is not on the page, then it is up to the states to figure out who, and who not, to protect. They do of course make an exception to their originalist philosophy when it comes to the second amendment, which clearly states that the right to bear arms refers to a “well-regulated militia.” To which, The Federalist Society and its devotees opine, “Well that’s not really what they meant.”  In reality, theirs is a flexible and convenient originalism used to fulfill a political agenda.

There are 792 active judges in the Supreme Court, Appeals Courts and District Courts. Donald Trump appointed nearly 226 judges during his presidency, 28% of the total federal judiciary.

The Ex-Celebrity President told us all exactly what kind of judges he would appoint if elected President in 2016.  “Even though I’m going to appoint great judges, you know, we could have as many as five judges, and she’s going to appoint super radical liberals and I’m appointing, you know, you saw the 11 names I gave, and we’re going to have great judges, conservative, all picked by the Federalist Society.”  Utah Senator Orrin Hatch reacted with glee, “Some have accused President Trump of outsourcing his judicial selection process to the Federalist Society. I say, damn right!” Six of the highest court’s current members belong or belonged to the Federalist Society: Brett Kavanaugh, Neil Gorsuch, Clarence Thomas, John Roberts, Samuel Alito, and Amy Coney Barrett.

Is it any surprise that today’s decision overturning Roe was 6-3.

Folks, this train has been barreling down the tracks and coming right at us for decades. We looked away from the car wreck because it was unthinkable that a new court would actually do anything so horrific. My lord, Americans, we were so wrong. And we should have known it.

We didn’t pay attention in 1992 when Roe came within one vote of being overturned in the Casey decision. Three Republican moderates—Sandra Day O’Connor, David Souter, and Anthony Kennedy– enraged the right by siding with the liberal members of the court to salvage Roe, at least for 30 more years. Had a Democratic-controlled Senate not rejected Federalist devotee Robert Bork, forcing President Ronald Reagan to appoint the more moderate Anthony Kennedy, a woman’s right to choose would have disappeared in the 1990s. Yes, the Senate has that kind of power.

So here are the lessons moving forward: we need to be better citizens. Your vote does matter. Hillary Clinton lost Michigan, Pennsylvania, and Wisconsin by fewer than 80,000 votes. If I had a nickel for every voter who told me, “You know I’m just not that crazy about Hillary. Trump might at least shake things up.” Well, you got the “shake things up” part right. Had moderates and independents who made that fateful choice sucked it up and pulled the Clinton lever, there would be no Gorsuch. There would be no Kavanaugh. There would be no Barret. How does that anti-Clinton vote look in the rearview mirror?

Had you voted for Hillary, today’s decision would have been 6-3 in favor of upholding Roe.

And that brings us to 2022 and 2024. If you think the assault on women is the end, my friends it is only the beginning. Once this ruling comes down, LGBTQ protections are next. Same sex marriages will be left up to the whim of local legislatures. Bet the ranch that contraception is on a future docket. How about rules protecting interracial marriage? The right to health care?  Make no mistake about it, had the Federalist Society been in charge of court appointments in the 1960s there would be no civil rights or voting rights acts. We would be living in a very different nation, a nation that may yet be our future.

Conventional wisdom tells us that the House will go to the Republicans this fall. When that happens, someone even more radical that Kevin McCarthy will likely become the Speaker of the House. Once again, the ultra-MAGA crowd telegraphs what is about to happen. Congressman and Dating Game participant Matt Gaetz proudly boasted, “It’s gonna be the days of Jim Jordan and Matt Gaetz and Marjorie Taylor Greene…I can’t wait to get the gavels in our hands.”  It is right there for all to see.

On the Senate side, the Republicans have given the Democrats a glimmer of hope by nominating fringe candidates in some key battleground states. Will they be able to capitalize on those gifts? Once again, it depends on whether or not voters are paying attention to the issues and not the bluster. That is no sure thing in today’s hyper-partisan environment. But rest assured, your vote in November will have a tremendous impact on the federal judiciary? That either matters to you or it doesn’t, but it is a fact.

As for 2024, we still have a way to go. But if you don’t think the Ex-Celebrity President is running again, I’ve got a bridge to sell you. He is running, and he will be a formidable force. He will be more unstable than ever. Once again, are you paying attention? As a nation can we rise above the reality show that has come to dictate how we select the leader of the free world? Are we able to say that regardless of whether it is Uncle Joe, Kamala, Bernie, Pete, Cory, Gretchen, Julian, Amy or any of the wannabes that reach for the golden ticket, that their policies—and yes, their judicial appointments – will be markedly different from those of a Trump or DeSantis presidency? If the answer to that question is not a resounding yes, then really very dark storms lie ahead.

We should have seen this coming!

Don Mohler is the former Baltimore County Executive and President and CEO of Mohler Communication Strategies. He may be reached at don@donmohler.com.