Power is how you use it

Edited by Sam Thielman

When the Supreme Court overturned Roe and Casey last week, I was too deep in my still-lingering COVID haze to put out a newsletter. So I characterized the court’s move on Twitter with a well-known Haitian proverb: konstitisyon se papie, bayonèt se fè — constitutions are made of paper, bayonets are made of steel.

Some nest of far-right trolls — primed for a fictitious leftist “night of rage” they had fantasized for weeks about using as a pretense to crush liberal skulls — seized on my tweet and spread it over the usual message boards. (The combination of a journalist with a Hebrew surname, an abortion case, and references to weapons and the Black Republic was catnip to white nationalists.) Things really picked up when the fascist-aligned journalist Andy Ngo tweeted it out as part of his enemies list of the day, claiming I had “appear[ed] to call for deadly violence by invoking Haiti after #RoeVWade was overturned by the US Supreme Court.”

As anyone actually familiar with Haiti can tell you, the proverb is the opposite of a call to violence: it’s an ironic comment on the exercise of state power, which uses paper laws as a pretense but in actuality rules by force. The three liberal justices made the same point in their dissent to Dobbs v. Jackson Women’s Health:

This won’t be theoretical for long. Dobbs will be implemented by the armed wing of the state: police with guns trained on abortion providers and patients, maybe even border checkpoints confining anyone suspected of being pregnant to their home states. Merrick Garland has claimed that the latter is impossible — that, as the Washington Post paraphrased, “the Constitution was unequivocal on the legality of crossing state lines for medical treatment.” But until last week every federal official thought the Constitution unequivocally guaranteed a right to abortion up to “viability” too. Paper is easily torn.

That’s been the theme of this most epochal of reactionary Supreme Court terms: illegitimate justices arbitrarily substituting their will for decades of case law, with no concern for consistency or logic. Are you a state legislature trying to control the proliferation of guns in a way your state’s citizens see fit? That’s unconstitutional (because of Dred Scott?). Are you a group of Black citizens trying to keep your state legislature from stripping the power of your vote? Whoops, that’s unconstitutional too, for undisclosable reasons. And abortion? That’s a matter for each individual state to figure out! (Unless, perhaps, a future Republican Congress just decides to outlaw it for everyone.)

The session ended with an Avengers-style post-credits teaser for next term: The Court granted cert to Moore v. Harper, a North Carolina case that could end with state legislatures — the same ones that Republicans have spent the last decade-plus gerrymandering — having an absolute right to draw electoral maps, suppress votes, and even throw out their entire state’s presidential vote (say, in Georgia, Pennsylvania, or Arizona) and substitute it with their own slate of electors in 2024. Four of the conservative justices (Alito, Thomas, Kavanaugh, and Gorsuch) and probably a fifth (Barrett) are expected to rule in favor of the so-called, made-up “independent state legislature theory.”

There is an object lesson in this for Democrats, if they care to learn it. The right has spent fifty years since Roe — if not the sixty-eight since Brown, or the near-century since the New Deal cases, or perhaps the two centuries since Reconstruction — preparing for this moment: scraping every ounce of advantage out of every election, every justice’s death, every political post, to build a Supreme Court majority that can roll back a century of hard-won labor, environmental, racial, gender, and reproductive rights in a single summer. They have rigged purple-state legislatures and packed state supreme courts, which, with the help of this Court, could cement white Christian nationalist minority rule for generations — without the need for another overt coup.

But the Democrats currently have the White House and, for the next six months, control over both houses of Congress — slim and fragile as the margin in the Senate might be. That is power. And power can be harnessed to expand the Court, pass legislation to answer the Court’s challenges, impeach seditious and perjurious justices, and more. I don’t have a magic formula for making that happen — especially for counteracting Senators Manchin and Sinema’s reactionary intransigence. The alternatives, if they fail to find a way to use that power, are clear — “not neutrality, but victory” for the forces of repression, as a hard-right blog editor put it. All I can do is to refer the liberals back to the Kreyòl — to stop looking at paper institutions that your enemies already disregard, and start looking for ways to use your existing power instead.

Rev. William J. Barber, a civil rights leader who was detained for hours for participating in civil disobedience in front of the Supreme Court yesterday, put it like this: