“How dare they?”

—Vice-President Kamala Harris on June 24 referring to the U.S. Supreme Court on the anniversary of the Dobbs v. Jackson Women’s Health Org. ruling that finally overturned Roe v. Wade.

This wasn’t the usual infantile babbling that characterizes most of Harris’s public appearances: Ethics Alarms has pledged to skip most of those in fealty to the Julie Principle. That quote is far worse, more significant and sinister. It’s so unethical and outrageous that I initially didn’t believe she could have been referring to the Supreme Court: most of the mainstream media accounts and even the edited videos left out the context of that outburst, so, giving the Vice-President of the United States the benefit of the doubt and assuming that surely, surely, she could not be framing a duly rendered majority ruling on the U.S. Constitution by the independent branch of the government charged with that duty by the Founders in such an ignorant, misleading and inflammatory manner.

She was, however. In fact, she had made the same fatuous, irresponsible and obnoxious statement before, a year ago, and is apparently so proud of her demagoguery that she deemed it worthy of an encore. I thought, and hoped, that her “How dare they?” was at least in the context she placed it in this past January, but no. (That is also an unethical and despicable bit of demogoguery, notable for Harris’s characterization of the famous statement in Thomas Jefferson’s masterpiece as “A promise we made in the Declaration of Independence that we are each endowed with the right to liberty and the pursuit of happiness.” Huh. Sounds funny. Isn’t there something missing there? Something that unborn Americans might think is important? I’m sure I’ll think of it in a minute…

But no. I could find no news report that placed this “How dare they?” in the context Harris placed it last week, but a video I can’t embed, available here on the Washington Post website, makes it clear.

In order to make such a dangerous statement, Harris has to also mislead the public into believing that, as she falsely said in January and periodically since, the United States Supreme Court “took away… a fundamental right, a basic freedom from the people of America.” Whatever one thinks should be the law or laws regarding abortion, it was never “a fundamental right, a basic freedom.” It was a Court-made right, and the Supreme Court isn’t empowered to make rights. “Fundamental rights” are the enumerated rights in the Bill of Rights and the subsequent amendments, passed by Congress and the states, in the Constitution. Roe was a bad, political, incompetent decision that most legal scholars, even those who favor abortion, admitted was wrongly decided. (If she ever had chosen to be candid about the issue, it is likely that even the sainted Ruth Bader Ginsburg recognized this.) Roe survived for so long because a parade of Justices lacked the votes and guts to overturn it.

A legally erudite Washington Post reader neatly eviscerated a pro-Roe op-ed thusly,

…[The] description of abortion as a “fundamental right” {“Abortion: A Right Not Subject to a Vote,” op-ed, Dec. 9} is not supported by an examination of the provenance of the easy access to abortion now available in the United States. To the contrary, the facts reveal this “right” to be little more than an intellectually clumsy contrivance of the Supreme Court and an astonishing display of judicial arrogance.

Writing for the majority in Griswold v. Connecticut (1965), a case unrelated to abortion, Justice William O. Douglas understandably found he was unable to cite a generalized right to privacy in the Constitution itself. Undeterred, he went on to discover a “penumbra” (from the Latin paene umbra, meaning “almost a shadow”) formed, he said, by unspecified “emanations” from the Bill of Rights. Justice Douglas then placed within this extra-constitutional near-shadow a hitherto unknown “zone of privacy,” which was transformed into a “right of privacy” by the simple device of the court’s substitution of the term “right” for “zone” in its later decisions.

How this mysterious trinity of privacy, penumbra and emanations had eluded legal scholars for the then 176 years of our constitutional history was (and is) a question left unaddressed by the court.

Finally, the Court did address it, and correctly so. The one strong argument against Dobbs is that it violated stare decisus, the principle that SCOTUS should not overturn long-settled precedents in the interests of stability and consistency. Doing so—and the argument that Roe was so bad and such a destructive decision both in terms of Constitutional integrity and human lives that it justified an exception to stare decisus is persuasive—does carry great risks for the Court and the nation. “How dare they?” framed in that context would have been a bit more defensible, though still unethical coming from the Executive Branch. (Imagine the Chief Justice criticizing one of the President’s excesses by saying, “How dare he?”) President Biden was and is obligated to tell Kamala to put a sock in it.

Harris is literally saying. “How dare the Supreme Court do its job? How dare the Court not bend to legally-ignorant arguments from pundits, activists, Democrats, and the news media? How dare it not slant its legal analysis so that its decisions are popular, and so demagogues like Harris can’t assail them using emotional arguments and rhetorical dishonesty like dropping “life” from the Declaration’s ‘inalienable rights’?”

On the same day she uttered this deliberately divisive and dangerous statement, Harris tweeted, “One year ago, the United States Supreme Court took a constitutional right from the people of America. Today, we stand with the majority of Americans who believe the right to choose is fundamental.” Somebody tell Harris, who is allegedly a lawyer, that Supreme Court decisions are not decided by polls, or by what ignorant Americans think is or isn’t in a document they have never read, and don’t understand. When Brown v. Bd of Education was handed down, the vast majority of Americans felt that there was a fundamental right to keep blacks from being allowed in white institutions, establishments, and neighborhoods. How dare the Supreme Court oppose the KKK?

Harris’s irresponsible rhetoric is openly enticing the radical and unhinged members of the public to storm the U.S. Supreme Court. It is, in my view, more provocative than what President Trump said to his mob of supporters on January 6, 2021. As we see increasingly with each passing day, however, Democrats and Republicans are held to different standards, and will be, until the Supreme Court “dares” to set matters right.