Counting on Kavanagh

Rights Supreme Court

            New Orleans      I’ll have to admit that even in the worst of situations, I’m always looking for the handles.  The small openings where work and action can make a difference; the windows that are still open, even as others are locked shut.  All of that has me looking more closely at Justice Kavanagh and whether or not he could be the last tackler preventing the rightwing from getting even more of their mischief across the goal line, if you’ll pardon a sports analogy.

Justice Thomas is getting a lot of ink and provoking outrage with his list of other rights to same-sex marriage, contraception, and more that he thinks are up for grabs given Justice Alito’s warped reasoning in overturning Roe v. Wade.  Since this is all about politics, not law, Thomas, as usual given his history on the Court, likes to throw his lonely opinions up against the wall.  Thomas doesn’t count the votes, but we should.

Justice Kavanagh listed same-sex marriage and similar “precedents involving issues such as contraception” as safe from the Mississippi decision.  He was unequivocal saying, “Overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents.”  Given Chief Justice Roberts’ demurral on this overturn, even as he voted with the majority, there just aren’t five votes for other overturns along these lines on the Court, but of course that means depending on Kavanagh to be a man of his word, which is not a bet without certain risk.

The distinguished Republican Senator from Maine, the recently reelected Susan Collins, in trying to spin her vote confirming Kavanagh has taken the rare step of publicly claiming that she was snookered in her two-hour interview with Kavanagh, claiming that he had implicitly promised not to overturn Roe.  When does a US Senator ever admit that they were gullible?  I think Kavanagh’s concurring opinion was his way of essentially saying, “yes, I lied to get the seat, but I don’t want to be seen as only a liar.  I had to pay back to the gang for getting me the job, but I’ve done that now.”  I think Collins remarks were meant to up the stakes for one and all on any future confirmations, because she’s looking after her legacy, and doesn’t want it to be that she was easily duped by any shill, and ended rights for women.

Kavanagh and, I’m betting, other strict constructionists on the Court who claim to be “originalists”, knows full well that the ability to travel freely across the great states of America was made crystal clear from day one by the authors of the Constitution, not that they believe in consistency, but they’ve built a mountain too high to climb here.   Facetiously, I asked recently whether some of the heavy breathers, yes, I’m thinking about Texas, thought maybe they could build a wall around their states with customs booths to check whether a woman was leaving for an abortion and coming back home not pregnant.  Interstate travel is connected to interstate commerce, so any effort by the emboldened Court majority to change that would halt business throughout the country, so we’re safe on that score.  Women they don’t care about, but business is their main squeeze.

None of this is really silver lining, but it should focus us where we need to lean which is on the states and their legislative and gubernatorial races, where we can make arguments about the Constitution as well.  The anti-choice folks are going to be left with no options but to go after the women themselves, and that, we all know, and they must surely understand, is a total political loser.  They may have reached their limit with the courts now. They got where they are by playing politics, and we can stop them the same way.