Despite glib right-wing claims to the contrary, as many legal scholars and constitutional experts were quick to point out, Supreme Court Justice Samuel Alito's leaked draft opinion ending abortion rights opens the door wide open for the reversal of decades of human rights litigation. At issue is Alito's rejection of the ninth amendment, which states that the "enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Or, in plain English: Plenty of rights are guaranteed by implication in the Constitution — such as a right to privacy — even if not explicitly delineated. Despite his alleged "originalism," however, Alito was quite clear that he feels the opposite is true: If it ain't singled out by name in the Constitution, it's not a right.
"The Constitution makes no reference to abortion," he writes in the draft opinion that was leaked to Politico. As political scientist Scott Lemieux noted, this is a "junior high school debate society" argument unworthy of anyone with a law degree, much less a Supreme Court seat. But it does open the door to repealing birth control rights, same-sex marriage, and decades worth of social progress that religious zealots like Alito deplore.
Already, excited Republicans are drafting bills that would throw women in prison for "homicide" for abortion and end same-sex marriage rights. (Meanwhile, they are also restoring the "right" of parents to marry an 11-year-old off to an adult man.) But while Republicans are dusting off their obsessive desire to police American bedrooms, they are starting to notice that Alito's argument has implications for all the human rights they wish to end.
RELATED: Samuel Alito's leaked anti-abortion decision: Supreme Court doesn't plan to stop at Roe
On Wednesday, Texas's Republican Governor Greg Abbott announced that his administration wishes to "resurrect" a 1981 Supreme Court case that guarantees the right of all children to public education. The case in question is Plyler v. Doe, in which the court looked at a Texas law that withdrew funds from public schools that enrolled undocumented immigrants as students. After determining that undocumented immigrants are, indeed, "persons," the court struck down the Texas law.
While Republicans are dusting off their obsessive desire to police American bedrooms, they are starting to notice that Alito's argument has implications for all the human rights they wish to end.
That's where the GOP is, circa 2022: Arguing that zygotes are "persons," but living, breathing children of immigrants are not.
Indeed, the entire segment of the Joe Pags show that Abbott appeared on was nauseating in its preference for cruelty over common sense. The host whined that "public property tax dollars" are being spent on "children who are 5, 6, 7, 10 years old, who don't even have remedial English skills." Of course, that is what schools are there to teach. Kids that age also don't know how to read or write or do math. Pags clearly needs remedial education in what schools are for, if "teaching kids stuff" is not on his list of imagined purposes.
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This is likely just the beginning of a feeding frenzy of right-wing challenges to 70 years, or possibly more, of decisions securing human rights.
Alito's draft opinion involves both sneering at "the latter part of the 20th century" and a lengthy, bitter diatribe about how the court is not bound by precedent. It's an open invitation for conservatives to "resurrect" any case going back to the 1950s, no matter how settled it is in the public view. VDare editor Peter Brimelow, who the New York Times reported once worked directly for Fox News owner Rupert Murdoch, was exuberant about the possibilities.
Peter Brimelow, a former National Review editor who now runs the racist website VDARE, celebrated the Roe news by posting on the alt social media site Gab: "Next stop Brown vs. Board!" pic.twitter.com/nYpfErOaVI
— Nick Martin (@nickmartin) May 3, 2022
If that sounds improbable, I invite readers to once again read Abbott's comments about his intention to end public education for the children of immigrants. The same racism puts the educational rights of Black children on the chopping block. Conservatives already won one pro-segregation case before the GOP-controlled Supreme Court in 2006. With Alito inviting more cases like this, things are likely to get quite hairy.
RELATED: Salon investigates: The war on public schools is being fought from Hillsdale College
This is likely just the beginning of a feeding frenzy of right-wing challenges to 70 years, or possibly more, of decisions securing human rights.
Nor should anyone assume this will be limited by racial grievance politics.
As Kathryn Joyce has extensively reported for Salon, the long term goal of the radical right — of which Abbott has strenuously tried to demonstrate he is a member — has been the total destruction of public education. It makes sense, of course, that the same people who think that government should play no role in providing health care also object to the government providing education. Those cards have been traditionally held close to the chest, concealed by stalking horses such as "charter schools." But lately, more conservatives have been forthright about their ideological opposition to the concept of public education.
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Just last week, Fox News host Lisa Kennedy argued that another Supreme Court case challenging the secularism of public schools offers an opportunity to "rethink whether or not we have public schools." She added, "Maybe we should not have the government involved in education at all." And, as Joyce reported last week:
In 2021, Florida Commissioner of Education Richard Corcoran declared that Republicans would win the political "war" in education, while sketching out a plan to lure so many students out of public schools that the damage to the system would be permanent. This month, Chris Rufo, the Manhattan Institute fellow who turned "critical race theory" into an amazingly effective political scapegoat, bluntly explained that "to get universal school choice you really need to operate from a premise of universal public school distrust."
"Resurrecting" long-forgotten cases like Plyler plays into this scheme. The far-right Supreme Court has already elevated the claim that rights not explicitly named in the Constitution aren't real. Now they may have an opportunity to declare that children do not have a right to education and states do not have an obligation to provide it. The whole thing would be sold to Republican voters through racial grievance, as a way to deny children of color educational access, of course. But the Supreme Court deciding that the right to education doesn't exist would naturally make it much, much easier to end public education altogether.
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Despite all the whining and crying from Republicans about the "leak," what's evident is that the right is stoked about Alito's draft opinion. It folds in decades of specious right wing arguments that posit that the government has absolutely no obligations to its citizens: No duty to protect human rights, no need to provide services like education or health care. This ideology has long been called "libertarianism," but in truth it's just uniquely American flavor of fascism. There's no planet where "liberty" is expanded by forcing women to give birth or keeping children illiterate. Republicans can see their dystopian agenda for the United States coming into view, and they couldn't be more excited.
