I said to Elaine last night that every day now we wake up to days unlike we’ve known before. Every day now the land under our feet shifts, and the land that holds the landscape warps and moves. The map of our times and of our nation is changing, becoming less recognizable, stranger, less approachable. We saw that throughout the pandemic. We saw that in the days following the election, the days that led up to the earthquake of January 6th. We’ve been seeing it as the Select Committee hearings have unfolded. As bad as we already knew everything to be, as farcical as all the stratagems and as irrational as all the rioting was, here’s the truth: That wasn’t the half of it.
When you view the events and issues surrounding that day through thematic prisms and riveting narratives, it all tumbles through the looking glass. If you look at it through the logic of those who perpetrated these crimes and seditions, you’re viewing something that is crackbrained and deadly. If you look at it through the vision of those on that committee who are interrogating it, you see something that is…well, that is crackbrained and dangerous—but more important, something that has to be answered forcefully. Something that requires retribution. Without that, the chaos and criminality win because they weren’t redressed.
I have said this numerous times in recent weeks, and I will say it again numerous times in the season ahead, because it is an article of faith: Donald Trump will be indicted, along with several of his co-conspirators, and some of them will end up in prison. I know that some doubt this—maybe because they are afraid to have a faith that could be disappointed. But it’s good to recall this: During Watergate—which was a less grievous crime—men from the White House and the Nixon Administration ended up in prison, including the former Attorney General. The only thing that spared Nixon from prosecution was that the new president, Gerald Ford, offered him a pardon which he accepted. Otherwise, Nixon would have been seated at a defendant’s table in a federal courthouse. Trump, recall, has nobody who will be offering him a pardon. He is headed to be seated at that defendant’s table in a federal courthouse. He’s also headed to be seated at a defendant’s table in at least two state courts as well.
Still, my conviction doesn’t give me the same comfort it did a few days ago, because yesterday has left me dumbstruck. Sure, we’ve known for weeks that the day was coming, but still, when I woke up, glanced at my phone and saw the Supreme Court ruling that the overturning of Roe v. Wade had just been announced, and then I switched on our TV to the wall-to-wall coverage of this newest earthquake, I realized that though we were prepared for it we couldn’t really be braced for it. This wasn’t just the land shifting: It was the land dropping out from underneath our feet. This was our new reality—this cold, legal cruelty. It was another looking glass instance.
This was our new reality—this cold, legal cruelty.
Alito had based his ruling on the writings of Matthew Hale, an English judge from the 1600s who had once sentenced women to death as witches, who noted that women were excluded from the legal profession and judiciary, who wrote that rape was a cruel accusation rarely to be trusted and that rape was not possible in marriage because women submitted to the rule of their husbands, and who determined that abortion was a great crime. Hale’s narrow and mean reasoning got carried over to American jurisprudence, and Alito cited him decisively and approvingly as he crafted yesterday’s ruling. Alito cited decisively and approvingly a man who believed rape was an untrustworthy accusation unless it had been directly witnessed and who believed women could indeed be witches. Alito cited a man who believed women could be witches and that he could hang those witches. And he did just that. That is the belief system of the legal thinker at the core of Alito’s ruling yesterday.
Yet as appalling as Alito is here, Justice Clarence Thomas wasn’t merely looking back to the logic of witchcraft, he was looking ahead at the illogical shapes of ruling to come. He wrote that the Court should reconsider its prior rulings that declared couples had a right to contraception; that invalidated sodomy laws, making same-sex sexual activities legal across the land; and the ruling that established the right of gay couples to marry.
In a way, what Thomas did here was egregiously worse and more dangerous even than Alito’s ruling. What he did was something I’m not sure a Supreme Court Justice has ever done before: He invited legislatures to test those rulings so that they would end up as challenges before the Court, for the express purpose of the Court reversing its prior rulings. He said: Give us the chance and we will undo all of this, we will countermand history and reason, we will end gay rights and gay marriage, we will disallow contraception, and we will make those who rely on those rights feel the hurt.
Yesterday the Supreme Court revealed that it has fashioned itself into the true Deep State within America. Yesterday the Supreme Court declared itself the most powerful branch of government. Yesterday the Supreme Court said: There’s nothing you can do about us. We run this joint now—and we will make you hurt.
Long ago I confessed that I am a single-issue voter: I vote for whichever presidential candidate offers us the best and most enlightened possibilities for the Supreme Court. It is obvious that this means I will vote for the Democratic candidate, whether I disagree with that candidate on some matters, or whether or not I have misgivings about that candidate. I play the long odds—and I should. Back in 1976, when I brought a case about the death penalty before the Supreme Court and lost, the truth is I’d already lost when the make-up of that Court had been determined by Nixon, and the Court had allowed for resumption of executions. Tomorrow, your daughters and sisters and others whom you love will suffer for what this Court has done—a Court that was empowered by those who declined to vote for Hillary Clinton in 2016. Yesterday should be sobering. In 2022, vote as if not just Roe v. Wade but also the Court itself is on the ballot. Because it is.
I believe that in time, when these Justices have faded into the dust and new ones construct a better majority, yesterday’s ruling will be reversed. I won’t be around to see it, and maybe you won’t be around to see it either. But my grandson Aiden will be here to see it and so will your children or grandchildren or both. Vote for the future, because if you don’t, we are headed into badlands where little light can crack through.
Mikal Gilmore is the author of four books, including the National Book Critics Circle Award-winning memoir Shot in the Heart, telling the story of his brother Gary, the first American to receive the death sentence after it was re-instituted in 1976, and the 1960s cultural history Stories Done. He is a longtime writer for Rolling Stone.
This Ain’t America ::: Melvin Van Peebles
Stanger In My Own Home Town :::: Percy Mayfield
Bad To Worse ::: Burning Spear
Trouble In Mind ::: Little Axe
Bad Magic ::: Weyes Blood
Bad News ::: Melody Gardot
What’ll We Do With The Child ::: Carly Simon
Can’t Find My Way Home ::: Ellen McIlwaine
Trouble ::: Cat Stevens
Bad News From Home ::: Randy Newman
Times Are Tight ::: Brian Cullman