Regardless of whether you support the policy choice of being for or against abortions, and for most people, it’s some more nuanced point in the middle rather than the extreme “all or nothing” position of ideologues and fools, you may well come to regret the Friday when the majority of the Supreme Court proved themselves as venal as they’re been painted. They didn’t need to do it. They shouldn’t have done it. But they could do it, so they did.
And for Clarence Thomas to then throw fuel on a bonfire, while Ginni cackles, was one of the single stupidest and self-indulgent things a justice has ever done. But, of course, he did it.
Most anti-abortion people are hung up on the question of whether Roe v. Wade was a good decision, a sound legal rationale for a newly established substantive due process right. It wasn’t, which is why they harp on it, but that’s water far under the bridge, by 50 years and a Casey decision. And the irony is that bad decision or not, it came from justices appointed by Republican presidents. If you’re looking to point the finger of political blame, know where it should be pointed.
Five of the seven justices in the Roe majority — all except William O. Douglas and Thurgood Marshall — were appointed by Republican presidents. The votes necessary to preserve the right to abortion 19 years later in Planned Parenthood v. Casey, the Roe follow-up decision that the court also overturned on Friday, came from five Republican-appointed justices.
But does any of this matter? The nature of substantive due process rights is that they largely derive from a bunch of fuzzy and flowery words that ultimately wrap up with policy conclusion that the Court declares to be a right. When it’s a right that most of us want, or at least can live with, we shrug and accept it with only the most passionate zealots refusing to accept the fact that times have “evolved” to the point where the Court creation of a right is fine with the People.
Why abortion remained controversial is unclear. Perhaps it was sincere belief that it was wrong. Perhaps it was elevated to a right before the public was ready to accept it as such. Perhaps it was a wedge that people could latch onto to rally against their adversaries. As I’ve made clear, I thought Roe was a poorly reasoned decision and I think access to abortion is the better policy choice.
In asserting that these justices led the court into grave error from which it must now be rescued, Justice Alito and his majority are necessarily saying that these predecessors, joining the court over a period of four decades, didn’t know enough, or care enough, to use the right methodology and reach the right decision. The arrogance and unapologetic nature of the opinion are breathtaking.
But there is an overarching problem, the reliance factor, stare decisis, the eradication of a “right” created, then taken away 50 years later, that has never happened before and cannot happen if there is any legitimacy to the Supreme Court.
Will the Supreme Court, when next its majority shifts, reinstate abortion as a right, proving every cynic who believes that the Court is just a bunch of political scammers imposing their side’s preferences on a nation by pretending it’s law rather than politics? That’s exactly what Alito just did in Dobbs.
They did it because they could.
It was as simple as that.
Republican presidential candidates have been running on the promise that they would appoint justices who will reverse Roe. Democrats have similarly run on the other side, maintaining Roe. Both are playing politics with the only branch of government for which neither popular will nor politics should play a role, and both have dirtied their appointees by promising a prejudiced outcome in advance of a case or controversy.
But for some lawyers, the aspiration was that these justices may come to the Supreme Court with their legal philosophies, but are smart enough and unbiased enough to consider the arguments and law rather than the usual outcome-oriented shills for the cause. That was my aspiration, and I thought Chief Justice Roberts would be strong enough to hold together this new majority, whose national status was tenuous given who they were appointed by, and arrive at a decision that would not blow up the Court. Roberts failed to do the one job that comes with being C.J., protecting the integrity of the institution. He failed miserably.
And the irony is that none of this was needed. The Supreme Court could have upheld Mississippi’s law without overturning Roe. It was purely opportunistic, provocative and gratuitous. It was just muscles being flexed, because they could.*
The manufactured excuse that the Court takes no position on abortion itself, but merely returns the issue to the states to decide, is a sham. If it brings you comfort, then you’re living in a fool’s paradise. The Court knew that some states would outlaw it, criminalize it. Texas’ insane law smacked the justices in the face. The Court knew that it would produce a schism between blue state that supported it and red states that would criminalize it. This is an untenable situation, both pragmatically and legally.
But most importantly, no matter how much you disagreed with the decision in Roe, no matter how much you believe that abortion should not be a right, no matter how strongly you feel that abortion is wrong, it was the law. It was the law for 50 years. It was the law. The rationale for Roe may have been bad. The rationale for Dobbs is far worse. This was a terrible mistake which we, as a nation, will come to regret.
*My old friend, Josh Blackman, characterizes this debacle as “judicial fortitude.”
Dobbs, which is a triumph for originalism and sound constitutional law, also signals that the court is infused with judicial fortitude. This virtue, more than any particular method of deciding cases, guarantees that the court will steadfastly safeguard the rule of law.
Calling it “fortitude” when you prefer the outcome is a game anyone can play, but Josh neglects to distinguish between what the original decision in Roe should have been with what should be done with a right, once clearly established and given effect for 50 years, when stripping it away.