"...an alarm like the 1857 Dred Scott decision"

May 2, 2022 Heather Cox RichardsonMay 3 Tonight, news broke of a leaked draft of what appears to be Supreme Court Justice Samuel Alito’s majority decision overturning Roe v. Wade, the 1973 Supreme Court decision establishing access to abortion as a constitutional right.

That news is an alarm like the 1857 Dred Scott v. Sandford decision declaring both that Black Americans had no rights that a white man was bound to respect and that Congress had no power to prohibit human enslavement in the territories. The Dred Scott decision left the question of enslavement not to the national majority, which wanted to prohibit it from western lands, but to state and territorial legislatures that limited voting to white men. According to law professor and legal commentator Neal Katyal, the draft appears to be genuine and shows that in a preliminary vote, a majority of the court agreed to overturn Roe v. Wade. It takes a hard-line position, saying that states can criminalize abortion with no exceptions for rape and incest. This is a draft and could change before actually being handed down, but it has already stirred a backlash. As soon as the draft hit Politico, which published it, security put up fences around the Supreme Court in expectation of protesters and counterprotesters.

We are in a weird moment, in which Democrats are trying to shore up democracy while Republicans are actively working to undermine it. House Speaker Nancy Pelosi (D-CA) and Senate Majority Leader Chuck Schumer (D-NY) issued a statement after the draft leaked, calling the draft “one of the worst and most damaging decisions in modern history.” They noted that the justices lied to senators to get confirmed, saying they considered Roe v. Wade settled law, and are now—if the draft is confirmed—stripping away from American women a constitutional right they have held for 50 years.

“The party of Lincoln and Eisenhower has now completely devolved into the party of Trump,” Pelosi and Schumer wrote. “Every Republican Senator who supported Senator McConnell and voted for Trump Justices pretending that this day would never come will now have to explain themselves to the American people.”

Democrats are also shoring up Democracy abroad. Yesterday we learned that on Saturday, a congressional delegation led by Speaker Pelosi visited Kyiv, Ukraine, and met with President Volodymyr Zelensky and other Ukrainian officials. Their goal, the delegation later said, was to “send an unmistakable and resounding message to the entire world: America stands firmly with Ukraine.”

The delegation consisted entirely of Democrats, although Jason Crow (D-CO), who was on the trip, told NPR that Pelosi invited Republicans, but they “were unable to join.” So the delegation included Crow, Bill Keating (D-MA), Barbara Lee (D-CA), Jim McGovern (D-MA), Gregory Meeks (D-NY), and Adam Schiff (D-CA). It was on the ground for about three hours. Pelosi is the highest-ranking U.S. official to meet with Zelensky in person since the Russian invasion began on February 24, 2022. Zelensky shared a video of the visit. The clip begins with the delegation walking toward Zelensky and his team. After introductions, the party walks up the stairs and into the presidential office. The clip cuts to formal photos and then a conversation around a conference table including Pelosi’s statement: "We…are visiting you to say thank you for your fight for freedom, that we're on a frontier of freedom and that your fight is a fight for everyone. And so our commitment is to be there for you until the fight is done."

After the conversation, which Pelosi later said focused on security, assistance, and the eventual rebuilding of Ukraine, Zelensky awarded to Pelosi the Order of Princess Olga, a civil honor given to women who have achieved significant distinction in their chosen field. “When we return to the United States, we will do so further informed, deeply inspired and ready to do what is needed to help the Ukrainian people as they defend democracy for their nation and for the world," the delegation later said.

While the Democrats are staking out their position as defenders of democracy, associates of the former president are under increasing scrutiny for their role in overturning it. Last night, a federal judge—a Trump appointee—rejected a plea from the Republican National Committee (RNC) to block its mass-marketing vendor from releasing materials to the January 6 committee. The committee had subpoenaed the material on February 23 as it looked into how the Republicans used the Big Lie for fundraising. For example, in the middle of the January 6 attack, the RNC sent an email telling supporters to “FIGHT BACK,” because “This is our LAST CHANCE.”

Today, the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol requested that Representatives Andy Biggs (R-AZ), Mo Brooks (R-AL), and Ronny Jackson (R-TX) cooperate with the committee voluntarily to fill in what they say are some of the remaining blanks in the story of former president Trump’s effort to overturn the 2022 election.

The committee outlined for Biggs what it already knows: he participated in planning meetings for January 6, including the plan for then–vice president Mike Pence to refuse to count the electoral votes that elected Democrat Joe Biden president. Provocateur Ali Alexander has said publicly that he, Biggs, and two other representatives came up with the idea of bringing protesters to Washington, D.C., to stop the counting of the electoral votes. The committee has information that Biggs tried to persuade state officials to overturn the election.

And, finally, “recent information from former White House personnel has identified an effort by certain House Republicans after January 6th to seek a presidential pardon for activities taken in connection with President Trump’s efforts to overturn the results of the 2020 presidential election.” Biggs was apparently part of those discussions. The committee asked Biggs to clarify why he thought he needed a pardon.

The committee’s letter to Brooks focused mostly on his recent statements that Trump continues to talk about “rescinding” the 2020 election. On March 23, for example, Brooks released a statement saying: President Trump asked me to rescind the 2020 elections, immediately remove Joe Biden from the White House, immediately put President Trump back in the White House, and hold a new special election for the presidency.”

The committee wrote: “[T]he Committee is examining a series of efforts by President Trump to abandon his solemn duty to support and defend our Constitution. The exchange you have disclosed with the former President is directly relevant to the subject of our inquiry, and it appears to provide additional evidence of President Trump’s intent to restore himself to power through unlawful means.”

In its letter to Jackson, the committee focused first on the recently released encrypted messages between the leader of the Oath Keepers, Stewart Rhodes, and members of the organization asking them to act as his personal security guards. One of those messages suggested that Jackson had “critical data to protect.”

The committee noted that individual Oath Keepers have been charged with seditious conspiracy, and appeared to believe their actions would threaten the lives of members of Congress. The committee asked Jackson: “Why would these individuals have an interest in your specific location? Why would they believe you “have critical data to protect?” Why would they direct their members to protect your personal safety? With whom did you speak by cell phone that day?”

Apparently unwilling to subpoena their own colleagues, which would open up a huge can of worms if the Republicans retake control of the House of Representatives, the committee said it was a “patriotic duty” to cooperate, and asked their colleagues “to join the hundreds of individuals who have shared information with the Select Committee.”

Jackson has already answered. “I will not participate in the illegitimate Committee’s ruthless crusade against President Trump and his allies,” he said in a statement. And so here we are. A minority, placed in control of the U.S. Supreme Court by a president who received a minority of the popular vote and then, when he lost reelection, tried to overturn our democracy, is explicitly taking away a constitutional right that has been protected for fifty years. Its attack on federal protection of civil rights applies not just to abortion, but to all the protections put in place since World War II: the right to use birth control, marry whomever you wish, live in desegregated spaces, and so on.

The draft opinion says the state legislatures are the true heart of our democracy and that they alone should determine abortion laws in the states. But Republican-dominated legislatures have also curtailed the right to vote. When Democrats in Congress tried to protect voting rights, Senate Republicans killed it with the filibuster.

Tonight's news is an alarm like the 1857 Dred Scott decision, which gave a few white men who controlled state legislatures power over the American majority.

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