Some disjointed, possibly incoherent thoughts about Roe
I told myself I did *not* want this to be a blog about politics, and I still absolutely stand by that. God knows there are enough political hot take bros in the world, and I have no need to cosplay as one. But at the same time, I think it’s weird to purposely avoid all politics like its some third rail we can never touch, lest someone get offended by something or take something the wrong way. Politics exists and political debates are important and people talk about them. To declare yourself “above” all that seems in a way kinda juvenile. Or cowardly.
At the moment, the internet is losing its collective mind over this article. Politico has a leaked copy of a draft Supreme Court opinion written by Justice Alito in which Alito, writing for an apparent majority of the court, overrules Roe v. Wade wholesale and says the states are free to regulate, prohibit, or criminalize abortion however they choose, full stop.
This is, in a word, bad. I don’t think I need or want to go on at length about why this is bad. But the internet hive mind is so, so, so out of control with a million thoughts on the subject, I wanted to at least attempt to craft some of my own thoughts into actual words on a page. I don’t have the discipline (or really the motivation) to put these thoughts in a polished, fully-formed essay, so these are necessarily pretty disjointed, bullet-point ideas. But for what it’s worth, I’ll give this a go:
First, I’m interested of course in the actual facts about what we have here. The document is labeled “1st Draft,” and it’s from February 10. Surely there are subsequent drafts by now? What’s changed? How was this received by the other eight justices? We don’t know. It’s all very bad, but we don’t know anything about where any of this is actually headed. If we were to speculate, it appears that Roberts is in the minority (because he probably would have written the opinion himself if he were in the majority, rather than assign it to Alito). This would mean that, as of early February anyway, there was a 5-4 split, with Roberts joining the liberals. Interesting, but only sort of.
The pearl clutching over the fact that it leaked at all seems over-wrought to me. It leaked. It’s extremely easy to understand why, because this opinion, to borrow a phrase from our 46th president, is a big fucking deal. So spare me the “Supreme Court in crisis” talk about the fact that there was a leak. Maybe a liberal person leaked it, or maybe a conservative person leaked it, or maybe it was found in a dumpster out back by someone random, but it doesn’t matter. We don’t know, and it’s fine that we don’t know. Leaks happen when stuff is this important, even at the Supreme Court.
The similar pearl clutching over gay rights also seems overwrought and, if I’m being honest, pretty self-centered and arrogant. Yes, obviously, Justice Alito is no fan of gay marriage, and if he were declared Emperor of the U.S. today, he would get rid of all gay marriages by tomorrow afternoon. But that’s not what’s happened. This isn’t about gay rights. Gays, quit trying to make this about yourselves. And panic-stricken fear mongers, quit trying to sensationalize this news for clicks. It’s bad enough as it is, and we can talk about how bad it is while sticking to the actual issue at hand, which is abortion.
The opinion itself is really bad. I actually did read (most of) the opinion on the Politico website, and did a deep skim of the parts I didn’t read in full. The basic reasoning is that Roe itself really came out of nowhere and wasn’t grounded in Constitutional text or any kind of rigorous analysis of rights that had existed historically. Therefore, the thing that makes sense to do is just scrap it.1 But that’s a huge non-sequitur, isn’t it? Roe has existed for almost 50 years! Literally every American woman of child-bearing age has lived her entire life under the basic regime of fundamental rights described in Roe v. Wade. So yes, women who became pregnant between 1776 and 1973 had a different legal framework to contend with. But those women can’t become pregnant now, and surely the expectations of women who can currently become pregnant must count for something? I don’t want to get bogged down in this point. The opinion is incredibly aggressive.
Everyone who went to law school has thoughts about Roe. In 1991 when Justice Thomas had his confirmation hearing, he famously testified (under oath!) that he had never had a discussion about Roe v. Wade and had never expressed any opinion about whether he thought it was correctly decided. I’d say this is among the most outrageous statements he’s ever made, but like.. any more it probably doesn’t even crack the top 10. That said, the vast majority of everyone I ever knew in law school who wasn’t a Fed Soc crusader all said something like the following: Roe is poorly reasoned by today’s standards; it really does seem more like the justices were «legislating» rather than staying in their lane; we’d be better off with a constitutional amendment or robust statutory protection from Congress; but given that we don’t have either of those, Roe is what we’ve got and it’s too important to just let it be undermined or chipped away at. Maybe today to some people that sounds like a very mid-aughts center-left view of things, but.. welcome to law school.
Democrats should do something. Given everything in the previous bullet point, it’s just mind boggling that Democrats in Congress have done effectively nothing for abortion rights for the last 49 years. Worse than that, in the few instances where Democrats have acted, it’s mostly been to just triangulate with conservative members of their caucus over things like the Hyde Amendment — undermining Roe rather than strengthening it. But maybe these latest developments will serve as a wake up call. Abortion rights need national, statutory protection from Congress. Gay and trans rights also need such protection. We the electorate shouldn’t tolerate a Congress that basically pawns its job off on an unelected/unaccountable Supreme Court. Of course these rights are controversial. That’s why Congress should do something about them. Expecting the Supreme Court to magically solve these problems is just irresponsible.
Minority rule sucks. Mostly my big takeaway thought is just the very obvious proposition that minority rule is terrible. The Supreme Court isn’t accountable to anyone, and it can’t be seen as representative of the people in any meaningful way (especially given its evolution since 2016). It’s insane that they have the power to make these decisions at all. But Congress is no better, because minority rule is just as entrenched there. I’m talking about the filibuster, of course, but also just the general way in which Congress goes about its business. Things that have broad-based support get nowhere, because it’s orders of magnitude easier to stop something than it is to get everyone on board and act affirmatively. This goes for Congress, but also for local politics, for civil rights in general, and housing, and public transit, and NIMBYs the world over. The more process we have, the less we have in substantive outcomes. And good lord do we have a lot of process.
Anyway. I hope things change for the better between now and the end of June when the Supreme Court term ends! I wouldn’t dare predict any kind of specific positive change that I could see happening, though. It really sucks!
One of the more outrageous ironies in Alito’s opinion is that — in the course of explaining why abortion isn’t a “real” constitutional right because the Constitution doesn’t say anything about abortion, Alito notes ALL THE OTHER RIGHTS that come from Supreme Court cases and that aren’t spelled out specifically in the Constitution. He notes specifically the right to marry someone of a different race / the right to marry while in prison / the right to obtain contraceptives / the right to reside with relatives / the right to make decisions about the education of one’s children / the right not to be sterilized without consent / and the right in certain circumstances not to undergo involuntary surgery or forced administration of drugs. Alito cites ALL of these and notes that they are rights that come from Supreme Court cases — NOT from constitutional text. And yet.. well. You know.