Special to USAfrica magazine (Houston) and USAfricaonline.com, first Africa-owned, US-based newspaper published on the Internet.
Ken Okorie, attorney and member of the editorial board of USAfrica multimedia networks, Houston
America woke up this morning to news of the May 2, 2022 leaked draft of the Supreme Court opinion credited to Justice Samuel Alito, which portends to overrule half-century old Roe v. Wade. Remarkably, by midday, Chief Justice John Roberts confirmed authenticity of the draft.
Roe v. Wade (410 U.S. 113) is the 1973 landmark decision of the same apex court that recognized the constitutional protection and liberty of a pregnant woman to choose abortion without excessive government restriction.
The leak by Politico magazine is a big deal. It is comparable only to the 1971 Daniel Ellsberg’s unauthorized disclosure to The New York Times of The Report of the Office of the Secretary of Defense Vietnam Task Force. The cascading effect of that leak includes the impeachment and eventual resignation of Richard Nixon from the presidency in 1973.
Nicknamed “The Pentagon Papers”, the report was top-secret United States Department of Defense study of America’s political and military involvement in Vietnam from 1945 to 1967. Daniel Ellsberg was on the study team and initially supported the war in Indochina. He later became an anti-war convert, and believed that Americans should know what their government, going back to President Truman, had been doing. His leak to New York Times catalyzed widespread opposition to America continuing the war in Indochina, specifically in Vietnam, Cambodia and Laos.
Such earthquake of an occurrence is simply rare, but validates the true essence of America’s democracy: that power ultimately resides in the people, in citizens willing to do extraordinary things out of belief that their action is in the interest of their country. This is a major lesson Africans are yet to learn.
The leaked draft opinion may end up not being the decision of the Supreme Court on the matter, because things can change before the final opinion is released. Yet the leak is a jolt whose reverberations will be felt throughout the political and legal landscapes of this country long after this day is gone.
It is a monumental setback for the Supreme Court, until now believed, to be one of few institutions of United States governance that remains sacred, not desecrated or traumatized by recent extremism. In the wake of Tumpian politics, such exception is hard to find. But I am frankly not surprised because Donald Trump upset everything that is normal and orderly in American governance and institutions. Nothing was beyond incursion. It’s possible the Supreme Court too suffered.
While not suggesting there is Trump involvement in the leak, the implications and consequences of his actions and style as president left American democracy severely bruised, weakened and vulnerable. Post-Trump America became damaged goods ever challenged to maintain its luster. It might take a better part of the next century to fully understand the extent of the damage done to America’s political psyche.
A saying in my Mbaise village of birth is of the kite struggling to fly to his maternal home when a sudden heavy wind blew him there. Trumpism gave Republicans a lift.
Except in the last election cycle, Roe v Wade had been front burner issue for as long as I have experienced America. It is often a subject of intense debate and passion that bar no holds. To believers, abortion is a constitutional right imbedded in a woman’s privacy and freedom to choose. Opponents, use “baby killers” and other graphic language to characterize the practice as ungodly. Political difference doesn’t get starker.
Despite decades of extended debate, abortion has been a freedom America knows. Most women alive today have not experienced life without access to abortion. It is entrenched in the planning, functioning and way of life of families, the labor force, and even spiritual orientation. Its implication extends to all corners and crevices from the bedroom to the boardroom. As such, abortion seemed a settled matter. If it happens, the impending change will be hugely life altering.
Having failed for decades to overturn the decision, Republicans resorted to different strategy. They laid wait until the Trump era when states under Republican executive control (like Mississippi, Texas, Oklahoma) began to degrade, nibble and chip away at the half-a-century old legal precedent.
Maverick Trump charmed his way into conservative hearts through unprecedented, relentless breach of all rules and decorum. He did it holding Damocles sword over decenters, most of whom so much have been on the run for their political lives, they left reason behind. Under its cloud, rationality deserted the Republican establishment. The likes of Senator Graham, formerly deemed arbiters of conscience and scruples, now present as having lost their way too. Nothing remained normal, no boundary was beyond crossing, and nothing is left sacred anymore. Fact and truth were chased away with “fake news”, replaced by alternative facts, whenever it was convenient.
Most striking is that Trump wields not the power of persuasion but of raw-jawbreaker strangulation. You either play his ball or you pay with everything, including your career. That how today’s Republicans got where they are.
It would be unimaginable for an American, regardless of ideology of politics, to minimize or justify an insurrection that nearly took down the seat of power at the Capitol on January 6 2021! But Trump’s America is willing to characterize the attempted coup makers as peaceful vacationers.
For their part, Democrats have not helped their cause. Seasonal indolence grips them each time they take political power. As was evident during Clinton, Obama, and now Biden, once a Democrat’s personal charm and wits propels him to the White House, the party recoils into tepid indolence, unable to press its cause. They crowd all of their hopes on that individual and become totally deflated. Their lifelessness, coupled with a refusal to join forces, soon becomes the heavy lifting their opposition leverages for easy ride. Joe Manchin’s decapitation of Biden’s domestic agenda is a most recent example with potential to inflict enormous Democrats losses in the forthcoming midterm polling.
That a leak has occurred of a Supreme Court opinion yet to be issues is novel; it just doesn’t happen. But should anyone be surprised? I suggest not.
The leaked draft opinion is not yet law and can still end up not being law. But if it becomes the law, it will be a fundamental shift in life, as America knows it. It will raise questions as to what actually are freedom, liberty and all the other protections the United States stands for? Would they become seasonal variants that can be easily altered by prevailing ideology? Would what happens to women in America still be any different from what is currently happening to the girl child in The Taliban’s Afghanistan? What differentiation could one make when the government can tell the woman what to do with her body? Could such change advance to telling everyone whom to marry? The implications are many; that makes this leak volcanic.
Justices at the apex court are in office for life. But they are still human, and the Court is an institution. Trump’s rampage knew no bounds, and that made him the darling of the extreme right. Factions hitherto irreconcilable within the camp managed to eke out chunks of cohesion and agreement, including on otherwise unusual, and even egregious, occurrences.
Roe v. Wade has been the law of the land for half a century. The preference of majority America, both conservative and progressive, has been to keep the decision, to not rock the boat. If overturned, it is a development that will confirm the fluidity and non-permanence of American law. In America nothing is permanent, including decisions of the Supreme Court. Everything depends on the direction of an ever-moving political pendulum.
Dred Scott v. Sandford (60 US 19) was 1857 Supreme Court ruling that US Congress exceeded its authority and had no power to forbid or abolish slavery in the territories west of Missouri and north of latitude 36°30′. Plessy v. Ferguson (163 US 1896) was another landmark 1896 U.S. Supreme Court decision that upheld the constitutionality of racial segregation under the “separate but equal” doctrine. The doctrine gave constitutional sanction to laws designed to achieve racial segregation by means of separate and equal public facilities and services for African Americans and whites. The point is that no law is permanent, including decisions by the Supreme Court.
A law is only as good and valid as the environment that supports its existence. Both referenced Supreme Court decisions were eventually overturned, replaced by, subsequent civil rights decisions, like Brown v. Board of Education (347 US 483), the 1954 decision that invalidated segregation in public schools. The tide of change and acknowledged propriety set the direction of the law, but nothing keeps it permanent.
Overturning Roe v Wade will be painful for some, joyful for others, and the political ugliness remarkable. Change is sometimes positive and popular or unpopular and even shocking. Decisions of the Supreme Court are not exempt. It’s one more element of American exceptionalism.
