Rooks: Supreme Court lays down the gauntlet. There's still time to get it right.

It was even more dire than we’d expected.

The U.S. Supreme Court’s climactic decisions obliterating abortion and expanding gun rights were among the worst ever handed down, and the newly solidified five-member bloc, which now excludes Chief Justice John Roberts, shows every sign of just getting started.

Naturally, the decisions were mutually contradictory. In the abortion case, Dobbs v. Jackson, Samuel Alito asserted there was never a right to privacy in the Constitution, so that Roe v. Wade was “a mistake.” Also mistaken was the Republican-dominated court that upheld Roe in Casey v. Planned Parenthood in 1992.

The court had found a right to privacy in the Tenth Amendment’s “unenumerated” rights and the Fourteenth Amendments “due process” and “equal protection” guarantees. Alito didn’t rebut these findings; he ignored them.

Americans believe in privacy, mentioned in the Constitution or not. This conviction dates to Louis Brandeis’ classic formulation – in an interconnected world the Founders never envisioned – of a “right to be let alone.”

In the gun case, New York Rifle and Pistol v. Bruen, Clarence Thomas found a nearly limitless right for individuals to own and carry firearms, based on the Second Amendment.

In one case, there was never any right to privacy, even though five decades of judicial decisions said there was. In the other, the majority, relying on the 2008 Heller decision, found an individual right also not in the Constitution’s text.

For two centuries, courts read the Second Amendment in the only way that makes sense: as a right to collective defense, not an individual one. “Discovering” this right in a country with pitifully weak gun laws is a formula for disaster, yet the court presses on.

Alito seems the perfect embodiment for the court’s angry, resentful and at times malicious majority. The notorious leak of the Dobbs draft survived, intact, in the final decision.

The major changes were Alito lobbing insults at both Roberts and the three dissenters, as if stating his case were not enough – he had to ridicule anyone who thought differently.

Alito’s concurring opinion in the gun case was more of the same. His colleague Stephen Breyer, who he’s served with for 16 years, is retiring, yet Alito couldn’t resist razzing Breyer for his temerity in pointing out the realities of gun violence.

Why, Alito exclaimed, having a concealed weapons law didn’t prevent the Buffalo supermarket massacre of 10 black people by an 18-year-old white supremacist, so what good is it?

The paragraph is breathtaking. It takes us beyond the “good guy with a gun” theory exploded in Uvalde, Texas, the ludicrous “arm the teachers” movement, way back to the original, equally absurd, “Guns don’t kill people, people kill people.”

Having laws against murder doesn’t prevent murders, just as having gun laws doesn’t eliminate shootings. In both cases, we’re trying to reduce violence, something Alito could have acknowledged.

The sneering language of this new co-leader of the court’s GOP bloc, along with Thomas – now that Roberts has been sidelined – bodes ill. The question is what we can do about it.

The first step comes in November, when just about every crystal ball predicts Republicans will assume control of Congress. That, too, would be a disaster.

A court that says “the public be damned” to voters collectively opposed to its decisions is what conservative retired Court of Appeals Judge J. Michael Luttig called a “clear and present danger,” in applying it to the Republican Party after January 6.

The Supreme Court, for the first time, has taken away an individual right. It not only doesn’t “follow the election returns;” it defies them. The Republican Party remains in thrall to a leader who refused to accept defeat, moving heaven and earth to keep his lawfully elected successor from taking office.

Putting all that together, one can see why “inflation” and “gas prices” aren’t the most important issues.

If Democrats – who overwhelmingly support abortion rights and limits on firearms, and accept election results – can rally, the landscape changes.

With a few more Senate Democrats, the filibuster can finally be scuttled. And, eventually, we might have to enlarge the Supreme Court – the “court packing” Republicans practiced under Donald Trump.

Four more justices could be seated without making the court unwieldy; indeed, it’s already among the smallest constitutional courts.

Alternatives are grim to contemplate. The “triumph of the right” now proclaimed is based on the minority governing the majority. Unless reversed, it means the death of democracy and the beginning of American autocracy.

There’s still time to get this right. Voters can insist on getting what they’ve already said they want; all they have to do is vote.

Douglas Rooks, a Maine editor, commentator and reporter since 1984, is the author of three books. His first, “Statesman: George Mitchell and the Art of the Possible,” is now out in paperback.  He welcomes comment at drooks@tds.net.

This article originally appeared on Portsmouth Herald: Rooks: Supreme Court lays down the gauntlet