Pure Gaslighting
What the judge hearing the case against James Comey should say
On Thursday, President Donald Trump upped his game of serial lies about his pursuit of the people he detests. In this case, it was James Comey, the former FBI director charged on flimsy evidence with fibbing to Congress after the bureau investigated the ties between Trump and Russia.
The charges’ impetus is “not revenge,” the president insisted, though everyone knows that it is. “It’s about justice, really.”
The case has landed before Michael Nachmanoff, a “Crooked Joe Biden-appointed Judge,” as Trump put it, and the question is what comes next. Will the judge, when surely asked, dismiss the case? If he does, will he speak to its vile origins, calling out the president for his alarming abuse of the justice system?
These questions brought to mind another judge, at a different but in some ways similar moment. He is a judge I write about in my book, Better Judgment. When faced with lies from public officials on an issue of profound importance, this judge called out the officials in words that at the time seemed right and inspiring. The words, tragically, came to naught. But to my mind they were what a judge should say, the type of thing that I hope Judge Nachmanoff will say – that we need all judges to say despite what the Supreme Court might do – when the time comes to put the officials who betray us in their place.
The excerpt from my book goes like this:
The plain truth of it was they were lying. A lot of voters knew it. At least some of the Mississippi lawmakers who had said aye to the bill probably knew it. Anyone who had been paying even casual attention to how the state of Mississippi had been treating women throughout its more than two-hundred-year history surely knew it. Yet no one— not the voters, not the lawmakers, not the attorneys who argued against it—was willing to suggest publicly that it was so. Except for Judge Carlton Reeves.
On March 19, 2018, the Mississippi legislature enacted a law that banned abortions after fifteen weeks of pregnancy. The authors of the measure said that the justifications for it were simple—to protect “unborn life,” yes, but more strikingly to protect women. “Abortion carries significant physical and psychological risks to the maternal patient,” read the law’s “findings of fact,” and these risks rose “exponentially” with the age of the fetus. Among them were “blood clots; heavy bleeding or hemorrhage”; “laceration, tear, or other injury to the cervix”; and “injury to the bowel or bladder.” Then there were the psychological harms: “depression; anxiety; substance abuse.” Evidence for any of these claims, and the fact that abortions were one of the safest medical procedures in the United States, was all but missing from these “findings of fact” because there had been no hearings on the measure, no public airing of whether it could withstand scrutiny of its claims, let alone its legal basis.
That scrutiny began the next day, though, when the Jackson Women’s Health Organization, the last abortion clinic in Mississippi, asked Reeves to temporarily block the law from taking effect while they prepared for a more extensive challenge. At a hastily arranged hearing that the clinic’s lawyers joined by phone, the judge picked up quickly on the absence of evidence for the antiabortion law’s claims. “So if they [the legislators] didn’t have hearings,” Reeves asked the state attorney defending the law, “how much deference should I give . . . any of the justifications that they set out, or their findings that they set out, in the statute?” The state’s lawyer said the judge should give them plenty of deference, but it was clear that Reeves was not persuaded. After noting that “a lot of stuff happens over there in the legislature that just should not happen, in ways that it should not happen,” Reeves ended the hearing and that evening issued his decision. He pointed out that the Supreme Court had long held, from Roe v. Wade on, that the Constitution protects a woman’s right “to have an abortion before viability” of the fetus—and fifteen weeks was clearly before viability—so the claim of Jackson Women’s Health Organization and their patients that the Mississippi law was unconstitutional would almost certainly succeed; a temporary restraining order (TRO) was granted.
Over the next several months, the judge and an ever-growing number of lawyers went back and forth over the legal mechanics of the litigation—setting the schedule, deciding what evidence to allow in, filing and responding to amended complaints—until on August 24, 2018, the clinic and its patients filed for summary judgment, a request that Reeves rule in their favor and block the antiabortion measure permanently without a trial because, in their view, the facts were undisputed and the law was on their side. On November 20 the judge came down with his decision. It was, most everyone knew, an easy case, given the clarity of the Supreme Court precedents on abortion, among the best known of any in the nation’s history. There was little doubt that Reeves would rule the Mississippi law unconstitutional and could not be enforced. The judge wrote as much in his opinion, but he asked an obvious question: “So, why are we here?”
Rejecting sophistry from the state’s legislators like the ban wasn’t really a “ban,” Reeves revealed the truth as he saw it: The state had passed a law “it knew was unconstitutional to endorse a decades-long campaign . . . to ask the Supreme Court to overturn Roe v. Wade.” He scolded the lawmakers for pretending to care about women’s health and the well-being of the unborn and minorities while the state led the nation in infant mortality, tolerated “alarming” poverty and maternal death rates, and curtailed health-care programs like Medicaid. In perhaps the opinion’s most memorable phrase, he wrote: “The Mississippi Legislature’s professed interest in ‘women’s health’ is pure gaslighting.” It was, in other words, a lie.
Reeves went on to accuse legislators of perpetuating “the old Mississippi,” the one that in 1968 became the last state to allow women to serve on juries, that systematically sterilized Black women against their will—getting a “Mississippi appendectomy,” it was called. The one that in 1984 became the last state to ratify the constitutional amendment guaranteeing women the right to vote. He recounted Mississippi’s long history of denying its citizens’ constitutional rights with segregated schools, prohibitions on same-sex marriage, limits on the rights of Black people to vote, and a “secret intelligence arm” that enforced racial discrimination. Far from helping women and minorities, Reeves wrote, the state still seemed “bent on controlling” them. Near the end of his opinion, almost as an aside, the judge revealed a bit about himself and his view of his role as a judge. “The fact that men, myself included, are determining how women may choose to manage their reproductive health is a sad irony not lost on the Court,” he wrote. “As a man, who cannot get pregnant or seek an abortion, I can only imagine the anxiety and turmoil a woman might experience when she decides whether to terminate her pregnancy through an abortion.”
As sometimes happens with Reeves on controversial issues, his opinion provoked morality-fueled indignation. Although the US Court of Appeals for the Fifth Circuit affirmed his decision a year later, as legal precedent compelled it to do, James Ho, among the court’s most outspoken and conservative judges, took offense at Reeves’s criticism of Mississippi’s and the antiabortion movement’s claims to protect women and Black people. In a concurring opinion, Ho cited surveys, articles, and legal briefs ostensibly proving that many if not most women had long viewed abortion as “women’s oppression” and “an injustice against . . . female life.” He relied heavily on a startling 2019 concurring opinion, by Supreme Court Justice Clarence Thomas, that condemned abortion as “a tool of the eugenics movement,” used throughout American history to draw “the distinction between the fit and the unfit . . . along racial lines.” History, Ho concluded, must also “infect” abortion proponents “with the taint of racism.”
Judge Ho largely missed Reeves’s point—Mississippi could not credibly proclaim a desire to help women and Black people when it hindered them in so many ways—and Ho’s history was far off the mark as well. In this case, however, the troubling question soon became whether any of it would matter at all.
It would be too much to say that Judge Reeves saw it coming, but by the time he held a status conference on a sweltering day in June 2021, he knew it was at least a possibility. On May 17 the Supreme Court had dropped the first surprise, granting Mississippi’s request to consider the abortion case. Reeves held the conference to see whether a trial over making his injunction against the abortion ban permanent should wait until the justices ruled. An attorney for the Jackson Women’s Health Organization opposed the idea. The law as it stood said a measure was unconstitutional if it put an “undue burden” on the right to abortion, and “we just don’t think the standard is going to fundamentally change as a result of the current Supreme Court case,” the attorney explained, and so delaying the trial would be unnecessary. Reeves was not so sure. “Why wouldn’t it be prudent to just wait and see what they say?” The Supreme Court “took this case up for a reason,” he said. “It’s not a foregone conclusion that the court will not overturn its preexisting state of the law.” The trial would be postponed.
The second surprise from the Supreme Court came a year later. On May 2, 2022, a draft opinion overturning Roe v. Wade, the landmark 1973 decision establishing the right to abortion, was leaked to Politico. Millions of Americans hoped and prayed that the draft was a fake. It was not. On June 24 the justices delivered their final surprise, a 6–3 decision that reversed the rulings of Reeves and the Fifth Circuit in the Mississippi case and ended the constitutional right to abortion. “Roe was egregiously wrong from the start,” declared Justice Samuel A. Alito Jr. in the majority opinion.Another man, another decision determining how women may choose to manage their reproductive health. The irony of abortion law that so worried Reeves was alive and thriving.