The illegitimacy of the Dobbs Court
Edited by Sam Thielman
I’m loath to tell you what I think about the coming overturning of Roe v. Wade without first directing you to three other examinations of this inhumane, theocratic malevolence. There's Rebecca Traister on the extremism of Alito’s draft opinion; Molly Crabapple’s brave exploration of the stakes in light of her own experiences with abortion; and Adam Serwer on how the draft’s logic could be used to strip away all the individual rights granted by past iterations of the Supreme Court, all the way back to the cases that dismantled Jim Crow.
But there is one other thing I think needs to be highlighted: How fundamentally illegitimate the Court that will be handing down Dobbs v. Jackson Women’s Health Organization will be, whatever the opinion’s final form. Let’s ignore for the moment the anti-democratic structure of the Senate — that was the case for every Senate in U.S. history, including those that empaneled the justices who decided Roe. I’m also going skip past the evasive, borderline perjurious answers the justices expected to form the majority gave when asked about abortion-rights precedents at their confirmation hearings.
We can even briefly put aside the fact that one of those justices, Neil Gorsuch, would not have even had a seat to fill if Mitch McConnell hadn’t gleefully trashed centuries of precedent and refused to hold hearings for then-President Obama’s rightful nominee. Republicans understand what today’s Democrats never seem to — that politics, at base, is all about using whatever power you have to get more.
Instead, I want to hone in on the individual justices in play. Six people are about to take away the reproductive freedom of hundreds of millions of Americans — rights that have been often taken for granted, even as they have been steadily eroded, for half a century. I want to focus on how those six people got to these positions of power.
Two were appointed by a president who in his first term had lost the popular vote, and who needed the intervention of five previous justices (one of those was appointed by that president’s father, and the other four had been appointed or elevated by Ronald Reagan, his father’s former boss) to occupy the White House.
Three more were appointed by a president who also lost the popular vote, then got impeached twice — the second time for inciting an insurrection against the U.S. government.
And one is implicated in both categories: Clarence Thomas joined the decision that subverted the 2000 election, and is married to a right-wing activist who conspired in the attempt to subvert and steal the 2020 election. Thomas refused to recuse himself from an insurrection-related case in which his wife’s records were in play.
Most of the discussion about the Court’s legitimacy this week has concentrated on the leak of the draft opinion to reporters at Politico. If intent makes a difference (and maybe it doesn’t), we still have no idea who leaked it, or why. But no one outside of the most rarified circles of Court-watchers — clerks, former clerks, clerks’ former roommates at Yale — really cares. Personally, I think there should be much more transparency about how the Supreme Court acts, deliberates, and reaches its decisions, not less. (#StreamOralArguments)
The eventual reaction to the ruling itself by millions of Americans will be much more important in the long run. For many of those who aren’t following the juridical drama closely, the sudden policing, for the first time in generations, of their and their loved ones’ uteruses, is going to come as a horrific surprise. Consistent, overwhelming majorities of Americans support legal abortion in general and upholding Roe in particular. All that is before the full implications of state laws become clear: Some states have criminalized the use of drugs that doctors prescribe to induce medical miscarriage; others have authorized homicide charges for undergoing IVF. At least 1,600 women have been unconstitutionally prosecuted for obtaining abortion procedures, mostly in recent years, even with Roe in place.
The justices know of all of this. They know that millions of Americans are already enraged by the Court’s draft decision, hence the just-erected fortress walls around the courthouse pictured above. More fury will come from families financially ruined by unwanted pregnancies, people directly injured or mourning loved ones who die as a result of carrying a disastrous pregnancy to term, or parents whose college-aged child is arrested for buying the morning-after pill or an IUD.
Consider that in the context of how these justices acquired this power: through appointments by presidents not elected by the voting majority. They are superpowered representatives of a reactionary, minority faction that stormed the coequal branch of government directly across the street.
These five or six justices, if the draft decision holds, will impose on the entire population a religious stricture held by a few sects of a single major religion, and no others — and a stricture only recently adopted by many of their most ardent adherents at that. (In early 1980, Ronald Reagan was asked by a Los Angeles Times reporter how he squared his anti-abortion rhetoric with having signed into law one of the nation’s most liberal abortion laws as California governor just over a decade earlier. The Gipper replied: “I had never thought about abortion, or given it any kind of thought as an issue prior to that time. I happen to be Protestant so it had not been a part of, brought up in my religion.”)
From populists to popularists, pundits are always talking about how far removed from ordinary people the power class in Washington is, and how divided the nation has become. The Dobbs decision looks poised to widen those gulfs into an ocean. The public’s approval rating for the Supreme Court fell to a 20-year low last fall in the wake of the Court’s refusal to block Texas’ new extreme anti-reproductive freedom law. Most Americans, busy managing their lives, can’t name a single Supreme Court justice, much less recite the litany of how they got their seats. But people can generally sense when they’ve been taken advantage of on something that matters. It will be a while before the Court, and the nation it governs, will come back from this one.
Correction (5/6/22): An earlier version of this post incorrectly implied that Chief Justice John Roberts was appointed during George W. Bush’s first term. He was appointed during Bush’s second.
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