Supreme Court Justice Clarence Thomas missed his true calling. He should have been a matador, dressed in his signature black, waving a red cape at 1 or 10 million bulls, all quite happy to gore him to death. In his concurring opinion in the just decided Dobbs abortion case (which reversed the 1973 Roe case), Thomas suggested that other precedents should be reversed including the 1965 Griswold case which struck down a Connecticut law forbidding the sale of contraceptives and the 2015 Obergefell case which declared a constitutional right to same sex marriage.

Some of the leading “bulls” in this case were the Democratic members of the House of Representatives who just passed legislation known as the Right to Contraception Act. That bill not only protects the right to purchase contraceptives, which was the issue in the Griswold case, but goes considerably further and is virtually certain to die in the Senate.

So what to say about both Clarence Thomas and the Democratic members of the House of Representatives? Borrowing from Shakespeare, it might be written: “This is a tale told by idiots, full of sound and fury, signifying nothing.” There is no chance that the contraceptive debate is any longer viable so efforts to take away or guarantee access is frivolous and just a useful ploy for the midterm elections.

The contraceptive genie is out of the bottle, never to return. One can buy the “morning after” pill on Amazon for less than $10, no prescription needed with packages of 6 available. Condoms are available at every drugstore and in dispensing machines in bars and gas stations. For gentlemen who are very active sexually, Amazon will sell you 100 condoms for less than $19, in a dizzying variety of styles with guaranteed performance.

The majority opinion, which reversed Roe, took considerable pains to note that the decision applied only to abortion and the rest of the majority had no interest in going down the road where Thomas was headed.

Why the reversal of Roe? It is more than Republican versus Democratic appointees. It really has to do with how “conservatives” view the role of the Court as opposed to “liberals.” The “conservative” view is that the Court exists to explicate rights and powers mentioned in the constitution and its various amendments. It does not exist to create new rights which is the job of legislative bodies. The “liberal” view is that the explicit and implicit values of the Constitution must be applied to present day circumstances. In the “liberal” view, the Constitution implicitly recognized a “right to privacy” leading to the Roe decision.

Both points of views are reasonable and defensible but neither view is conclusive. One of the most interesting things about the Obergefell case is that – at the time it was decided – 36 states and the District of Columbia had already legalized same sex marriage. Hence, the net effect was to create a constitutional right to same sex marriage and force the issue in the remaining 14 states. The “conservative” view was that rules governing marriage had always been a matter of state law and 37 jurisdictions had already approved same sex marriage and the 14 remaining could well do the same without the creation of a new constitutional right nowhere mentioned in the Constitution.

As should be obvious, I am more in tune with the “conservative” view regarding the role of the Supreme Court because I trust the legislative process to be more reliable than the votes of 5 unelected judges with lifetime appointments.

One of the more unfortunate developments regarding the Supreme Court has been the partisan nature of confirmation votes of prospective Justices (51 votes needed if all voting). The last 4 nominees: Justice Neil Gorsuch received 54 votes, Justice Brett Kavanaugh 50 votes, Justice Amy Coney Barrett 52 votes and Justice Ketanji Brown Jackson 51 votes. The controversy surrounding Justice Kavanaugh notwithstanding, it is crystal clear that Justices Gorsuch, Barrett and Jackson were eminently qualified by virtue of their schooling and legal careers and should have received virtually unanimous approval.

Compare their treatment to the 98 votes for Justice Antonin Scalia in 1987 (nominated by a Republican President), the 97 votes for Justice Anthony Kennedy in 1988 (Republican President), and the 96 votes for Justice Ruth Bader Ginsburg in 1993 (Democratic President). Today, confirmation hearings are more like bull fights where the opponents try to seriously wound the nominee and, when the television lights are off, opposing Senators take to their Twitter accounts to boast of their efforts. We are the poorer for it.

So who is responsible for the present mess? Currently, a lot of the blame is placed on Senator Mitch McConnell who, as Senate Majority Leader, insured the appointment of then President Trump’s 3 nominees. The truth, however, is that the current mess started when the Democrats were in the majority and then Majority Leader Harry Reid removed the filibuster from the appointment of lower court judges even though he was warned not to do so. The Republicans ‒ when it became their turn ‒ extended that policy to Supreme Court nominees. The value of the “filibuster” (60 votes) in an evenly divided Senate is that a candidate would have to attract a significant number of votes from the minority party and, hence, the nominee would be more acceptable to a wider group of Senators.

They say that it is always darkest before the dawn. If that is the case, we are in for a brilliant sunrise. Unfortunately, given the present hyper-partisan behavior, it is hard to imagine that the sun will ever appear. In fairness, both parties are to blame, but a far greater portion must be assigned to the Republicans where the Trump cancer has metastasized.

Eventually, sooner or later (probably later), the Republican Party will return to the party it once was with a positive and coherent set of positions instead of a party built on resentment and the notion that one is required to oppose what the other fellow is proposing rather than engaging in a discussion about changes.

In the meantime, we can only hope for the brilliant sunrise to come.