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Brett Kavanaugh's Right to Dine Shall Not Be Infringed

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Brett Kavanaugh was nominated to become a member of our nine-person SuperCongress by a president who took office despite earning the votes of millions fewer Americans than his opponent did. That president never enjoyed the support of a majority of citizens and got spanked in the popular vote by an even larger margin—7 million—in the next election. He then tried to overthrow the government to stay in power. Only one of the five other right-wing justices was nominated by a president who took office having secured the support of a majority of actual Americans.

Photo credit: Pool - Getty Images
Photo credit: Pool - Getty Images

Brett Kavanaugh was then confirmed by 50 senators who represented just 44 percent of the American population. The 48 senators who voted "nay" represented tens of millions more citizens. Kavanaugh secured the crucial 50th vote of Senator Susan Collins based on her publicly stated belief that he considered Roe v. Wade to be "settled legal precedent." In the public hearings into the question of his confirmation, where he testified under oath, Kavanaugh said this:

Senator, I said that it is settled as a precedent of the Supreme Court, entitled the respect under principles of stare decisis. And one of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the past 45 years, as you know, and most prominently, most importantly, reaffirmed in Planned Parenthood v. Casey in 1992.

And as you well recall, senator, I know when that case came up, the Supreme Court did not just reaffirm it in passing. The court specifically went through all the factors of stare decisis in considering whether to overrule it, and the joint opinion of Justice Kennedy, Justice O’Connor and Justice Souter, at great length went through those factors.

And then, a couple of weeks ago, Kavanaugh voted with the five other Republicans on the Court to overrule Roe v. Wade and Planned Parenthood v. Casey.

If you have a problem with any of this—unelected judges selected by presidents who got fewer votes and confirmed by senators who represent a minority of citizens making policy without regard for legal precedent or their own previous statements under oath—you don't seem to have much recourse.

You can't vote the superlegislators out. It is unreasonable to expect any will be impeached thanks to the entrenched advantages that allow Republicans outsize control of the Senate. Even the House of Representatives is dangerously skewed, thanks to gerrymandered redistricting maps and the hyperpolarization they help to generate. The reason Senate Republican leader Mitch McConnell and others worked so hard to seize control of the judiciary was precisely because so many other institutions have ceased to function properly. Even if you do succeed in electing representatives to make policy through the legislature—after this same Court savaged the Voting Rights Act and unleashed an avalanche of money in our elections—the courts can throw out whatever they choose.

Photo credit: Bill Clark - Getty Images
Photo credit: Bill Clark - Getty Images

You cannot protest at the steps of the Supreme Court, as they've walled that shit off. You can't protest at the justices' houses, and there's some merit to the idea that private residences—where spouses and children are in the mix—should be off-limits. (Of course, in the case of Clarence Thomas, his spouse has very much been in the mix.) But you can't protest in neutral public venues, either, even if you're on a city street outside a restaurant. We learned that this weekend, when Mr. Kavanaugh was disturbed during a meal at a Washington, D.C. steakhouse, as reported by the Beltway encyclical known as Politico Playbook:

On Wednesday night, D.C. protesters targeting the conservative Supreme Court justices who signed onto the Dobbs decision overturning the constitutional right to abortion got a tip that Justice BRETT KAVANAUGH was dining at Morton’s downtown D.C. location. Protesters soon showed up out front, called the manager to tell him to kick Kavanaugh out and later tweeted that the justice was forced to exit through the rear of the restaurant.

We have returned, inevitably, to Red-Henghazi. Do public figures who make the rules we all have to live by get to do whatever they want at all times without any social repercussions? Do they have some right to privacy in public spaces, despite choosing to wield huge power over others in a democratic republic? Morton's seems to think so.

“Honorable Supreme Court Justice Kavanaugh and all of our other patrons at the restaurant were unduly harassed by unruly protestors while eating dinner at our Morton’s restaurant. Politics, regardless of your side or views, should not trample the freedom at play of the right to congregate and eat dinner. There is a time and place for everything. Disturbing the dinner of all of our customers was an act of selfishness and void of decency.”

The right to eat dinner shall not be infringed. (Particularly by the Unduly Unruly.) Which, according to Politico's Daniel Lippman, it was not.

While the court had no official comment on Kavanaugh’s behalf and a person familiar with the situation said he did not hear or see the protesters and ate a full meal but left before dessert, Morton’s was outraged about the incident.

The right to tiramisu shall not be infringed. Seriously, though, at this point we're talking about what appears to be a complete non-incident. He went out the back because he heard secondhand there were some folks out front?

But even if the honorable justice had to hear the urban rabble outside—described by Politico as "D.C. protestors"—tell him to fuck himself while he chowed down on a ribeye, what exactly is the problem here? The protesters are exercising their rights to speech and "peaceably to assemble, and to petition the Government for a redress of grievances." Kavanaugh and the others may fashion themselves as blind arbiters of the law, but in reality they are agents of state power, representing the Government. And they have generated some grievances.

Meanwhile, we're hearing about Brett the Honorable's right to dine, what we can only assume is an unenumerated one under the Ninth Amendment. It also sounds more than somewhat related to the right to privacy—also rooted in the Ninth—which undergirded Roe and Casey before these six luminaries threw those decisions out. Justice Clarence Thomas has signaled they're interested in going after the right to privacy itself with a so-called reconsideration of Griswold v. Connecticut, a move that would go way beyond contraception. Although the prospect of this Republican Court empowering states controlled by their ideological allies to restrict women's access to the pill in the Year of Our Lord 2022 does have a particular resonance.

And if that happens, you can expect the same bullshit routine from these same people. The work of working the refs is never done, and the self-victimization will never stop. This is the same impulse undergirding much of the Cancel Culture debate: while social-media mobs and a lack of due process are real problems, many of the fiercest Free Speech Warriors actually see free speech as their right to say whatever they want without getting criticized or made fun of. Similarly, these right-wing superlegislators believe they should be able to nakedly advance the policy priorities of the conservative movement by reverse-engineering decisions to meet preordained conclusions, all the while battering the lives of powerless people, without ever getting called an asshole while they drink a $300 bottle of wine. There are consequences for behaving badly in public office, at least until these people are finished savaging the foundations of this democratic republic. Or until the Democratic Party finds the stones to nix the Senate filibuster, expand the Supreme Court, reform the judiciary, and restore the people's means of translating their will into the law we all are bound to live by.

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