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This is Fighting Words, a weekly newsletter about what got me steamed this week. Let’s dive in.

Item one: The forgotten fateful moment that ushered us into the era of Supreme Court radicalism

If someone were to ask me—ask me, ask me!—what the most fateful moment in the recent (i.e., 50-odd years) history of American politics has been, what would I say? Bush v. Gore is an obvious contender. The Great Recession. Donald Trump’s Electoral College inside-straight win. The Iraq War. All of them are up there.

But I just might say, instead, that the biggest turning point was Thurgood Marshall’s retirement from the Supreme Court. Marshall, the court’s first Black justice, who was appointed by Lyndon Johnson, announced his retirement on June 28, 1991. Supreme Court nominations weren’t yet the Götterdämmerung struggles that they are today, but the Bork hearing had happened, and we were in the early phase of the hyperpoliticization of the court. All this was clear enough that The New York Times’ headline on the story was “MARSHALL RETIRES FROM HIGH COURT; BLOW TO LIBERALS.” They called it a blow, of course, because there was a Republican president, George H.W. Bush, who was presumed to be likely to replace the liberal Marshall with a conservative.

And boy did he. Bush replaced Marshall with Clarence Thomas. Thomas shifted the court’s balance dramatically. On the day Marshall retired, the court had seven justices appointed by Republicans and only two by Democrats, but such were things in those days that that fact did not give conservatives a 7–2 edge. Far from it. The court was much more of an ideological hodgepodge in those days. From right to center to left, you had: Antonin Scalia (appointed by Reagan), William Rehnquist (Nixon), Anthony Kennedy (Reagan), Sandra Day O’Connor (Reagan), Byron White (Kennedy), David Souter (Bush), John Paul Stevens (Ford), Thurgood Marshall (Johnson), and Harry Blackmun (Nixon). You can call that a 5–4 conservative majority if you wish, and it was definitely considered such, because Reagan’s appointees moved the court to the right of where it had been previously. But by the lamentable standards we’ve come to know, it was still center-right. White was a centrist. Kennedy and O’Connor weren’t yet as iconoclastic as they would become, but they weren’t as hard right as Scalia and Rehnquist. Souter started out somewhat more conservative, but later he became a pretty reliable liberal.

Thomas, though, changed the whole dynamic. Now the court had three hard-core rightists. The wind was truly in the Federalist Society’s sails, and the existence of a hard-right majority began to come into focus as a thing to worry about.

At the time of Marshall’s retirement, some observers wondered why he didn’t just wait for the next presidential election, just a year away. He acknowledged that he gave the matter a little thought, but his health was declining; he felt isolated after the retirement of his colleague William Brennan; and in those days, as I said, the process just wasn’t the war it has since become.

So why am I going into all this? You will see directly.

If Marshall hadn’t retired, he of course would have been replaced when he died. And he died on … January 24, 1993. In other words, the fourth full day of Bill Clinton’s presidency. Clinton would obviously have replaced Marshall with perhaps not a raging liberal tiger but certainly someone who was basically pro-choice, pro–civil rights, pro–campaign finance regulation, pro-environment, and so on. All those conservative 5–4 decisions over the last 30 years—on women’s rights, voting rights, campaign finance, unions, religion, so much else—might have been liberal 5–4 decisions. And there would have been no such thing, this week, as Politico’s leak of the decade, because (assuming the mythical Clinton appointee stayed alive until now) there would not be five votes to overturn Roe.

So that, my friends, was an incredibly fateful moment. That, and Ruth Bader Ginsburg’s decision not to retire in 2013 or 2014, when there was a Democratic president and Senate. We love RBG, but she was wrong to hold on so long. It cost liberalism dearly. If Marshall had waited and Ginsburg had not, we’d have a solid liberal court majority today.

Instead, of course, we are embarking on a new era of Supreme Court radicalism. As you’ve surely already read or heard, the grim logic of the majority opinion overturning Roe v. Wade that leaked to Politico this week, if it stands, means that everything is on the table. Because if they can strip away a half-century-old precedent on the grounds that a half-century isn’t long enough for a right to prove its worth and durability, which Alito essentially argued, then there are a lot of things they can strip away.

Samuel Alito says, no, this decision overturning Roe is narrow, concerning the specific urgent matter of fetal life, rather than, say, a married couple’s privacy or one’s religious beliefs. Amy Coney Barrett, at her confirmation hearing, made the distinction between mere precedent and “super-precedent,” the latter being long-held precedent that isn’t controversial anymore, citing Brown v. Board. OK, so maybe they won’t strike down Brown (although the schools have resegregated to a depressing extent, thanks to the Roberts court). But Obergefell, upholding gay marriage? Alas, I’d be quite surprised if these justices don’t overturn that one day, provided they find the right vehicle. And don’t limit your imagination to the so-called social issues. They want to dismantle the administrative state, meaning, for example, that the Environmental Protection Agency couldn’t even write environmental regulations. They (or some of them; whether it’s five is unclear) want to undo one-person, one-vote, which would allow state legislatures to draw districts however they wanted. They want essentially no campaign finance laws, meaning that in theory, the Kochs, Mercers, and a handful of others could buy Congress.

We are entering a period of very radical Supreme Court jurisprudence. It could have been different. But … it isn’t.

Item two: Those dishonest Republican Senate talking points

A related gross-out of the week involves the memo from the National Republican Senatorial Committee, the GOP’s Senate campaign arm chaired by Florida’s Rick “the little people pay taxes” Scott, that was pushed out to candidates after the Roe leak. Are you ready for this?

Staggering, even from them. State-level Republicans across this country are soon to be passing laws forcing girls to carry to term fetuses that are the product of their stepdads raping them, mandating that women who have abortions be arrested on homicide charges, and more. And Republican Senate candidates are instructed to go sound “compassionate.” And they say Democrats are the extremists?

Herschel Walker, Georgia Senator Raphael Warnock’s likely opponent this fall, wants to outlaw abortion in all cases. But that’s OK. Just remember, Herschel, when you’re out there taking that position that will force girls to deliver their rapists’ babies, to sound compassionate while you’re doing it.

It’s demented. But notice: It’s offense. They are always, always playing offense. Here, theirs is the minority position. Theirs is an extremist position. But they advise their candidates to play offense, not defense, so as to make it sound like their un-American position is the only plausible American position. Take note, Democrats.

Item three: And speaking of right-wing rapist stepfathers

You may have missed this one, as it didn’t seem to penetrate the national brainpan, but: William Loeb was the longtime publisher of the Manchester Union-Leader, the leading newspaper in New Hampshire, which wouldn’t mean much except that every four years, because of New Hampshire’s first-in-the-nation primary, events vaulted him to position of kingmaker. He was a vicious, racist, red-baiting, right-wing crank who probably did immeasurable damage to our national political process and culture.

He was also a predator.

Loeb’s stepdaughter ended an almost 70-year silence—speaking to the Union Leader, as fate would have it—and described how Loeb serially molested her starting when she was 7. She added for good measure that Loeb also abused his own (now deceased) daughter when she was 6.

These were not one-offs. It happened a lot. So while this sick man was playing kingmaker and railing against civil rights (“forced association”) and finding Communists under every bed, he was raping his own little daughter and stepdaughter. And threatening to drown them if they said anything (read to the end of the linked piece, the part about Bobby’s kittens).

Family values.

Quiz time

Last week’s quiz: OK, enough heavy stuff. The topic was songs about cars. Questions and answers below.

This week’s quiz: It’s the pictures that got small.

That last one is a toughie, eh? Answers next week.

I’d love your feedback. I think. Email me at FightingWords@tnr.com.

—Michael Tomasky, editor

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