Dueling Takes on the End of Roe
So, what now?
The prevailing wisdom in the pieces I’ve read reacting to the Supreme Court’s repealing the abortion right it announced in Roe is best summarized by UC-Davis lawprof Mary Ziegler: “If the Supreme Court Can Reverse Roe, It Can Reverse Anything.”
If this decision signals anything bigger than its direct consequences, it is this: No one should get used to their rights. Predicting with certainty which ones, if any, will go, or when, is impossible. But Dobbs v. Jackson Women’s Health Organization is a stark reminder that this can happen. Rights can vanish. The majority wants us to think otherwise. They tell us that a right to abortion is unlike other privacy rights, such as the right to marry whom you wish or to use whatever contraception you choose. Abortion, in their view, is distinct from these, because it puts someone else’s life on the line. And so if we believe the Court’s conservative justices, this is a reckoning about abortion and nothing more.
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But if the Court can so blithely reverse Roe—when all that has changed is that conservatives finally had the votes—we should wonder whether this is just about abortion.
After all, this decision did not come about solely because Roe was a weakly reasoned decision. This opinion did not come down because Roe launched our culture wars (a comforting but completely ahistorical lie). This decision reflects decades of organizing by a passionate and savvy social movement that argues that fetuses have fundamental rights—and that, in fact, the Constitution does have a view on abortion, and that view is that abortion is unconstitutional. This movement has been brilliantly successful in its efforts to control the Supreme Court, influence the rules of campaign spending, and remake the GOP.
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And America’s politics have changed too. Dobbs is a product of a deeply divided country. The laws emerging from conservative states would have once seemed politically toxic, but now the gap between red and blue states has widened to the point that once-unthinkable laws are the new normal. Dobbs shows that the Supreme Court reflects and reinforces the dysfunction and ugliness of our politics—and does so at a time when faith in democratic institutions is already fraying.
In some ways, this has long been true. Progressive scholars have criticized a system in which five judges can determine which rights we have. Others have written for years that courts are not engines of social change and do not meaningfully protect constitutional values, and that the Court has, throughout its many years, been regularly partisan and out of step with popular opinion.
But until recently, there were limits on what the Court would do. Historically, the justices seemed reluctant to do anything too radical, lest they cause a backlash that damaged the power and prestige of the institution.
One might have expected any such guardrails to be particularly effective at protecting Roe, the best-known of any Supreme Court decision, and one that many Americans seem to support. The Dobbs decision makes plain that those limits are gone. In their place is a kind of constitutional partisanship, dictated by the interpretive philosophies and political priors of whoever currently has a majority on the Court and nothing more.
As recounted many times before, my interest in politics began relatively early, with the overlapping events of the Iran Hostage Crisis and the 1980 presidential election. My conlaw professor at Jacksonville State, Hope Davis, was very much a conservative and he shaped my views of the proper role of the Supreme Court in interpreting the Constitution. I believed then and continue to believe that Roe was wrongly decided and amounted to judicial overreach.
At the same time, that was the 1980s. Roe was a young decision then. It had not yet been reaffirmed, in an opinion authored by a Reagan appointee and joined by two others, in Casey, a decision that came down shortly after I left the Army and was starting my PhD program. That decision was handed down 30 years ago as of this upcoming Wednesday.
While I was frustrated by O’Connor, Kennedy, and Souter, I assumed that was pretty much the end of it. I was, of course, mistaken. Nonetheless, I see reversing a precedent of that magnitude, that has been relied on for almost half a century, as a radical act by the Supreme Court.
The Atlantic‘s Adam Serwer agrees but goes much further, bitterly asserting “The Constitution Is Whatever the Right Wing Says It Is.”
The Supreme Court’s decision overturning Roe v. Wade, allowing state governments to force women to give birth, is the result of decades of right-wing political advocacy, organizing, and electoral victory. It is also just the beginning of the Court’s mission to reshape all of American society according to conservative demands, without fear of public opposition.
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[T]he Supreme Court has become an institution whose primary role is to force a right-wing vision of American society on the rest of the country. The conservative majority’s main vehicle for this imposition is a presentist historical analysis that takes whatever stances define right-wing cultural and political identity at a given moment and asserts them as essential aspects of American law since the Founding, and therefore obligatory. Conservatives have long attacked the left for supporting a “living constitutionalism,” which they say renders the law arbitrary and meaningless. But the current majority’s approach is itself a kind of undead constitutionalism—one in which the dictates of the Constitution retrospectively shift with whatever Fox News happens to be furious about. Legal outcomes preferred by today’s American right conveniently turn out to be what the Founding Fathers wanted all along.
The 6-3 majority has removed any appetite for caution or restraint, and the justices’ lifetime appointments mean they will never have to face an angry electorate that could deprive them of their power. It has also rendered their approach to the law lazy, clumsy, and malicious, and made the right-wing justices’ undead constitutionalism all the more apparent.
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I am not arguing that these positions are insincere. Rather, the purpose of this undead constitutionalism is to present contemporary right-wing positions on consequential matters as eternal and constant, and therefore the only legitimate interpretations, when they are entirely malleable and dependent on changes in conservative political identity. The majority’s supposed originalism is a means to affirm novel legal interpretations grounded in present-day right-wing grudges as what the Constitution demanded all along. Every time those grievances shift, the interpretations will shift with them, even as the justices scour history anew for confirmation of ideological conclusions they would never question even if they failed to find it. That is ultimately why no rights that Americans currently possess are safe from this Court. Decisions about which rights survive and which do not are highly dependent on what it means to be a conservative at that time. There will always be new right-wing grievances to ameliorate by judicial fiat, justified by new abuses of constitutional history.
The core conservative belief about the culture war is that there is a Real America that is conservative, and a usurper America that is liberal. This, not historical research, not legal analysis, is the prime means of constitutional interpretation for its current majority. And while the justices will both pretend and insist otherwise, the public need not flatter their imperious delusions. They should take the right-wing justices’ vow that other constitutional rights are safe for precisely what it is worth—which is to say, absolutely nothing.
Way back in those undergraduate days, reading excerpts from landmark Supreme Court cases in Ducat and Chase’s Constitutional Interpretation, was how often Justices would have passages explaining that their ruling was contrary to their own policy preferences but that the plain language of the Constitution required them to strike down the law in question. While I’m confident that I would read some of those declamations with a more cynical eye at this stage, I took them at their word: they were doing their duty as they saw fit.
My view of the role of the Justices has certainly evolved over the years. I’m more attuned to the argument, of which Serwer’s is an extreme form, that strict adherence to the text of a document written in 1787 and amended rarely since inherently creates a conservative bias. But I nonetheless prefer that to Justice Brennan’s Rule of Five, which Server’s headline modifies: “the most important rule in constitutional law is that with five votes you can do anything.” I didn’t like that when it was the liberal wing that had the votes. I don’t like it now that it’s the conservatives.
My strong preference is for these matters to be settled by elected policymakers. Alas, as has been a long-running theme here, our system is simultaneously increasingly undemocratic and broken. The right can slowly advance its policy aims when it controls the levers of power and largely stymie the left from doing so when in the minority. And now the judiciary is stacked for what looks to be the foreseeable future.
Naturally, Ross Douthat has a contrary view. His NYT column, “The End of Roe Is Just the Beginning,” starts off as something of a victory lap:
By any reasonable political science theory, any normal supposition about how power works in our republic, this day should not have come.
The pro-life movement has spent half a century trying to overturn a Supreme Court ruling that was presumed to reflect the enlightened consensus of the modern age. It has worked against the public’s status quo bias, which made Roe v. Wade itself popular, even if the country remained conflicted about the underlying issue. Against the near-universal consensus of the media, academic and expert class. Against the desires of politicians who were nominally supportive of its cause, the preferences of substantial portions of American conservatism’s donor class.
Across all those years the pro-life cause also swam against the sociological and religious currents of American life, which have favored social liberalism and secularization. It found little vocal support among Hollywood’s culture-shapers and crusaders for social justice, or the corporate entities that have lately embraced so many progressive causes. It was hampered by the hiddenness of the injustice it opposed, the voicelessness of the constituency on whose behalf it tried to speak.
And it worked against the weight of the American class hierarchy, since pro-life sentiment is stronger among less-educated and lower-income Americans — exactly the wrong constituency to start with, according to cynics and realists alike, if you want to pressure the elite or change the world.
I wouldn’t bother citing Douthat at all, representing as he does a fringe worldview even among conservative Christians, but do so because he pivots to this:
While the pro-life movement has won the right to legislate against abortion, it has not yet proven that it can do so in a way that can command durable majority support. Its weaknesses will not disappear in victory. Its foes and critics have been radicalized by its judicial success. And the vicissitudes of politics and its own compromises have linked the anti-abortion cause to various toxic forces on the right — some libertine and hyperindividualist, others simply hostile to synthesis, conciliation and majoritarian politics.
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At the same time the pro-life movement’s many critics regard it as not merely conservative but as an embodiment of reaction at its worst — punitive and cruel and patriarchal, piling burdens on poor women and doing nothing to relieve them, putting unborn life ahead of the lives and health of women while pretending to hold them equal.
To win the long-term battle, to persuade the country’s vast disquieted middle, abortion opponents need models that prove this critique wrong. They need to show how abortion restrictions are compatible with the goods that abortion advocates accuse them of compromising — the health of the poorest women, the flourishing of their children, the dignity of motherhood even when it comes unexpectedly or amid great difficulty.
These issues may be secondary compared with the life-or-death question of abortion itself, but they are essential to the holistic aspects of political and ideological debate. In any great controversy, people are swayed to one side or another not just by the rightness of a particular position, but by whether that position is embedded in a social vision that seems generally attractive, desirable, worth siding with and fighting for.
Here some of the pathologies of right-wing governance could pave a path to failure for the pro-life movement. You can imagine a future in which anti-abortion laws are permanently linked to a punitive and stingy politics, in which women in difficulties can face police scrutiny for a suspicious miscarriage but receive little in the way of prenatal guidance or postnatal support. In that world, serious abortion restrictions would be sustainable in the most conservative parts of the country, but probably nowhere else, and the long-term prospects for national abortion rights legislation would be bright.
But there are other possible futures. The pro-life impulse could control and improve conservative governance rather than being undermined by it, making the G.O.P. more serious about family policy and public health. Well-governed conservative states like Utah could model new approaches to family policy; states in the Deep South could be prodded into more generous policy by pro-life activists; big red states like Texas could remain magnets for internal migration even with restrictive abortion laws.
This, of course, is pure fantasy. There are certainly elements of the anti-abortion movement, primarily Roman Catholics, who strongly support social justice through a robust safety net. Most Evangelicals, though, emphasize personal responsibility. They believe the fetus is an “unborn child” but see an unwanted pregnancy as an individual failure, if not a product of sin. And, naturally, they see caring for the child the duty of the mother. (And, yes, I’m aware that the father tends to be largely excluded from this, especially if the couple is not married.)
We’re likely to see even uglier policies enacted in the Red states, with the Blue states seeking to become safe havens for abortion. That, rather obviously, puts poor and young women who live in Red states in a dire situation. There will almost be efforts by Red states to make it difficult, if not unlawful, to travel out of state for an abortion. That would be clearly unconstitutional. But I have no confidence at all that this Court will see it that way.
I’ll take two of whatever Douthat is smoking. The notion that the GOP would take a good governance turn after making abortion illegal is nuts. It’s not like anything was preventing them from doing these things prior to the end of Roe. Not sure how pundits come up with some of these ideas.
I’m pessimistic and cynical this morning. The outcome we’re clearly headed for is one where every time a trifecta at the state or federal level reverses, there will be large-scale reversal of major policies. (The Supreme Court will be repacked each time as part of any reversal at the federal level.)
People will find this intolerable. Inasmuch as the policies people regard as important are increasingly things on which compromises are impossible, look for them to notice that if they just broke the US into three or four groups of states, things within those groups would be much more stable. Free advice, especially for the youngsters: pick where you think the partition lines will fall, and whether you live in one of the pieces where you can tolerate the policies.
Last night I glanced at polling on Roe. On should Roe be overturned, nationally it’s 64/33 against. (May, NPR/PBS/Marist.) They break out regions, lowest support for Roe is in the South, where Roe is supported 58/40. The Dobbs case is Mississippi. I couldn’t find state polling for MS, but Texas polls 53/46. (Dallas Morning News – UT Tyler.) So I don’t even know what state interest the Federalists are upholding here. The populace don’t want Roe overturned. Even in Texas the only state interest being upheld is the interest of state pols in pandering to the MAGAt GOP base primary voters. If Dems don’t crucify GOPs in the midterms with this they’re guilty of malpractice. And 1/6 and the NY gun decision.
Douthat:
In other words, Douthat just underscored that he doesn’t understand our system at all.
@gVOR08: They don’t care about the people in those states. They care about the legislatures in those states. In most states, it’s almost guaranteed that the legislature will be older, whiter, richer, more conservative and have a significantly higher proportion of men than the people who elect them. Reports are that 26 states either have, or are expected to have in the near future, laws sharply restricting if not outright banning abortion.
@Paine:
By being forced to defend the indefensible.
@gVOR08:
In simple terms: a federalism that is not designed to actually take into account the will of the citizens, but rather a system predicated on lines on a map that has a structural tendency to over-represent more conservative elements, even at the state level.
@Steven L. Taylor: Ayup! 🙁
@James:
I am not so sure, actually. It all depends on the philosophy and reasoning of the interpreter. And hence the Rule of Five.
At the end of the day, the way those Five decide is judged by the outside observer through their own lens. (And I know you know that).
I have just gotten to the point where it is crystal clear that there is no pure original meaning of the document that can be applied. Almost none of it works exactly as intended, because the world isn’t anywhere near the same as it was when it was written. Moreover, quite clearly, the Framers themselves weren’t sure what it meant.
Hell, I am currently the main author of a new workload and evaluation policy for the university. The idea that I am 100% certain what every word means and how it should be applied in the future is absurd. That we would try to do that a centuries-old document written by a political committee is well beyond absurd.
@James:
I don’t disagree–although I think things like this should be settled nationally, not piecemeal. But, more importantly, they should be settled by truly representative legislative bodies.
@gVOR08:
Douthat, David French and Brent Orrell all had similar essays up yesterday begging other conservatives to do the right thing and support the families that will be forced because of this. Though conservatives, they recognize that there is darkside to overturning Roe and they have enough conscious to do something to address it. For them it is, if wishes were horses… time.
@Sleeping Dog:
You have a better opinion of Douthat than I. He’s a fascist, but his schtick is to wring his hands a bit and remind his fellow travelers that they are fascists in the good sense.
@MarkedMan:
Douthat is a Catholic and even if he adheres to a conservative Catholic theology, there is a strong emphasis on social responsibility, which is where I see him coming from here.
@MarkedMan: You have a better opinion of Douthat than I do. Being a fascist would mean he represents the thinking of someone bedsides himself. He seeks to represent the thinking of reasonable, moderate Catholic Integralists. A bloc that consists almost entirely of Ross Douthat. As token conservative columnists go, I prefer WAPO’s Gary Abernathy. He understands nothing, knows little, and isn’t a very good writer, but at least he represents some actual bloc of conservatives.
It’s fun to see that all assertion of The Market Dictated always was [and will be] just ex-post-facto attempting to justify their own policy preferences. Go back 40 years and it’s all the same.
When the market does speak, conservatives call it things like Cancel Culture and keep whining — and hoping they get away with shouting squirrel while they continue to ignore clear market signals.
The market is actually the people, and conservatives simply don’t think the people want what they say they want.
Of course, when you reason backwards from that seemingly bizarre statement.. you realize that conservatives are admitting they do nothing but lie – and also cannot comprehend that someone else would actually say exactly what they want.
Conservatives therefore cannot be trusted at any point because they do not [and will not] deal in good faith.
Dueling takes on the end of Roe: one side clear-eyed and rational (if perhaps “extreme” in tone) and the other side “pure fantasy.” And we all know which side holds the advantages of our electoral system.
@gVOR08:
Don’t get your hopes up. Gas prices are high, attention spans are short, and the electoral system remains skewed to minority rule. We all need to get comfortable with the idea that messaging, more better voting, and our institutions are not going to get us out of this mess. It’s time for stronger stuff – street action, general strikes, boycotting and the like.
The Constitution means whatever 5 judges think it means. It has been that way for a while. However, until recently there was at least some respect for prior decisions and concern about consequences. That is gone. We need to remember that though these judges are really political figures and ideology will rule they also arent stupid. So there will still be 9-0 decisions on issues where ideology just isn’t that important, but when it is we know ahead of time how they will rule. We are stuck with this for along time. In theory the answer to this is Congress doing its job but they stopped doing that.
Steve
I semi-dread next week’s release of West Virginia v. EPA where it seems quite possible — more so after this past week — that you will get your preference. I’m now leaning towards a Gorsuch-written opinion that there are some matters that are so important Congress can’t delegate them to a regulatory agency (or the states). And that climate change is one of those. So despite polling that says two-thirds of Americans believe the federal government is doing too little about climate change, the Court will set us on a path to do even less.
@Michael Cain:
That seems optimistic. Right now, the filibuster prevents anything from happening outside the courts, which are deeply, radically conservative.
But, if we broke the filibuster, and things did start actually happening, ostensibly reflecting the will of the voters… that would be great. When it doesn’t matter who you vote for because nothing happens, you can vote for the stupidest motherfucker on the planet* with the most extreme views and not feel any consequences. Actually having consequences could begin to moderate things.
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*: Take your pick of Hershel Walker, Tommy Tuberville, Lauren Boebert, etc.
Where we are at (not headed to) is that just around 40% of the country’s electorate either approves or is willing to acquiesce to a political faction that is bent on establishing a hierarchy of race, class and gender.
I say this because I don’t see any of this as a structural problem or defect in the Constitution or even the Electoral College, because when there is that high a percentage of people who don’t value democracy so much as they value nursing the cultural resentment, no structure can preserve democracy or rights.
I see polling as showing strong disapproval, so maybe the long awaited “overreach” will happen and the electorate will deliver a crushing defeat to the forces of authoritarianism.
Maybe. We will just have to see.
@steve:
Neither the number 9 nor the lifetime appointments concept for USSC judges are prescribed in the constitution.
@gVOR08: The Texas primaries were months ago, and deadlines to file even earlier still.
Neither my incumbent R state rep nor state senator have a D opponent in the general election. For both of them, the R primary was the real election.
Protection of human rights should never be considered “judicial overreach”.