May 27, 2022
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David Litt, the former speechwriter for President Barack Obama, has dissected U.S. Supreme Court Justice Brett Kavanaugh's infamous quote and argument on the notion of returning abortion to the states. In an op-ed published by The Atlantic, Litt discussed Kavanaugh's latest arguments and how they are potentially problematic for the future of American law and politics.

As part of his oral arguments for Dobbs v. Jackson Women’s Health Organization, Kavanaugh repeatedly echoed the same statement: “The Constitution is neither pro-choice nor pro-life.” In short, Kavanaugh argues that a woman’s right to abort a pregnancy “should be left to the people, to the states, or to Congress."

Litt also highlighted Kavanaugh's claim of being “scrupulously neutral" as he broke down why that argument is ultimately incorrect.

"Kavanaugh’s talking points reflect a political reality: Americans like the idea of self-government. When asked, three-quarters believe that their elected officials should represent the majority’s views. By claiming to be “scrupulously neutral,” another phrase Kavanaugh repeated in oral argument, conservatives are implying that overturning Roe is a small-d democratic position to take.

"The Supreme Court’s position is neither scrupulous nor neutral," Litt wrote. "Instead, Kavanaugh and his fellow conservative justices seem prepared to impose the will of an anti-abortion minority with a kind of one-two punch. In a ruling in the near future, the Court’s conservatives are likely to hand autonomy over women’s bodies to state legislatures. And in rulings in the recent past, the Court has set those state legislatures up, via gerrymandering and voter suppression, to ban abortion regardless of whether those bans are supported by the people of their state."

He went on to explain how the judicial help would be no match for the Republican legislative edge in many states. Although Democratic voters tend to dominate metropolitan areas, like Detroit, Milwaukee, Philadelphia, and even Atlanta, the big city edge does not always fare well for the state.

"The goal of gerrymandering politicians is to dilute the power of the opposing party’s voters by 'packing' them into a small number of districts; when Democrats cluster in cities, they essentially pack themselves," Litt wrote. "As the urban-rural divide in politics has grown, so too has the GOP’s edge."

According to Litt, the impending outcome of the Dobbs case may set a disturbing precedent for the country as it embarks down a path that represents the beliefs and political agenda of a small minority.

"The arguments in Dobbs, and the ruling that will likely follow, are about to present the country with an incredibly clear example of what 'tyranny of the minority' looks like."

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