counterpointThere’s nothing pro-life about the Texas attorney general’s abortion lawsuit
The best summary of what just happened comes from the dissent by the liberal justices: “The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them.”
Here are five takeaways from this political and legal earthquake.
The court’s decision is both straightforward and incredibly sweeping.
The decision written by Justice Samuel Alito flatly declares that “Roe was egregiously wrong from the start.” It rules that because a right to abortion is neither explicitly laid out in the Constitution nor “deeply rooted in the Nation’s history and traditions,” it deserves no protection as a fundamental right.
Therefore, states will be free to enact whatever restrictions on that right they choose. The decision also drips with contempt both for the court’s prior abortion jurisprudence and for abortion rights itself.
“The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions,” Alito writes, which means it therefore does not exist. The ruling dismisses the effect on women’s liberty by saying: “Women are not without electoral or political power,” and therefore they might try to protect their rights with their votes.
Crucially, Alito also sent a clear message to states that they may restrict abortion in absolutely any way they like. He specifies that going forward, abortion restrictions will be judged on rational-basis review, the lowest standard courts apply to judging new laws. If the state can show that it has any rational basis at all for a new restriction, the court will uphold it.
The court could have opted for a less radical decision. It could have upheld the 15-week Mississippi abortion ban at issue in this case while further eroding abortion rights by ending the fetal viability standard, without overturning the fundamental right itself. Instead it opted for a much more sweeping decision.
The court is only getting started.
In his concurrence, Justice Clarence Thomas gives away the game, saying explicitly that the court should go on to overturn the cases that established the right to use contraception, overturned sodomy bans and established the right to same-sex marriage.
“After overruling these demonstrably erroneous decisions,” Thomas goes on, the court should expand its view outward to keep overruling more and more decisions.
Thomas bases that agenda on a rejection of “substantive due process.” He rejects the idea that the 14th Amendment’s guarantee of liberty incorporates a number of rights, such as the right to privacy, even if they are not explicitly mentioned in the text.
Yet as Justice Stephen G. Breyer’s dissent notes, the men who wrote the Constitution and the 14th Amendment granted almost no rights at all to women. Breyer unloads on the majority as follows:
When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship.
Those men also didn’t believe that Black and White people have the right to marry one another; only later did the court rule that they do. Presumably this court would not extend the logic of this decision to taking away that right as well.
But as the court’s conservatives have already shown, the historical and textual approach they are now using is infinitely flexible, allowing them to arrive at any decision they want.
In the future that’s likely to mean a further erosion of the separation of church and state, fewer rights for workers, increasingly restricted voting rights, a further entrenchment of minority rule, and ever greater limits on government’s ability to solve problems.
That likely includes dramatically hobbling the Environmental Protection Agency’s authority to combat climate change at a time when the future human habitability of our only planetary home in the known universe is in grave doubt.
Democrats need a fundamental rethink to meet this moment.
With the court escalating the radical legal revolution it is imposing on the country, Democrats need to shift their approach at the most fundamental level.
This entails both accepting and embracing this crowning fact: The court is going to be a zone of full-blown partisan combat for many years to come. Republicans have known this for decades. Democrats have to meet them on the battlefield that Republicans created.
“The court was always politicized,” Yale law professor Samuel Moyn tells us. “The question is, who’s going to get the upper hand in controlling it?”
Communicating this fact with the public — that the court cannot be a purely neutral legal zone and will inevitably be politicized going forward — is job one. This entails explaining clearly that when Republicans swiped Merrick Garland’s seat based on an invented principle about appointments in election years, then ditched that principle to appoint another justice, they fundamentally tainted the court in a way that demands hardball Democratic tactics in response.
It also means leveling with voters by telling them that the court is an instrument of minority rule — with five judges appointed by Republican presidents who ascended to office without winning the popular vote — and that the court is inevitably shaped by electoral politics.
This doesn’t mean all judicial rulings are purely politically motivated. It means the party in power picks judges in keeping with its political and policy agenda. Democrats must put all this squarely before the public.
“In a way there’s an opportunity in this decision to reorient,” Moyn told us, by hammering home to the public that our judicial order is shaped by “who’s elected and who gets power.”
And it means Democrats must stand for serious structural reform of the court, as a corrective to the irredeemable Republican tainting of it. This might entail term limits for justices, or expanding the court, or constraining its power with legislative reforms like limiting its jurisdiction, requiring supermajorities to overturn legislation and enabling legislative overrides of rulings.
But whatever the specifics, the core principle has to be that the court simply cannot continue to exist in its current form if we are to call ourselves a liberal democracy. The basic posture, Moyn says, should be shaped around the idea that we face “an epic confrontation, like in the 1930s.”
Democrats must make very clear promises about what’s next.
In keeping with the above shift, Democrats have to be ultra-clear about this fall’s elections. They need to tell voters: If you let us keep the House and deliver us two more Senate seats, we will end the filibuster, pass a bill nationally codifying abortion rights, and undertake far-reaching Supreme Court reform.
Of course, the court could strike down such a national abortion bill. But as Moyn notes, Democrats can tell voters that they would reform the court to prevent this, vowing: “We will declare war on the Supreme Court to keep that law viable.”
Democrats must make this stick — hard — politically.
Republicans are already celebrating the decision by calling for a national legislative ban on abortion. House Speaker Nancy Pelosi (D-Calif.) alluded to this on Friday by flatly declaring that Republicans are “plotting a national abortion ban.”
Every Republican candidate for the House and Senate should be pressed relentlessly on whether they would vote for such a national ban in Congress. Given broad public support for abortion rights, that won’t be an easy position to hold in swing states and swing districts.
And if the media doesn’t compel Republican candidates to answer this question, Democrats must do it instead. Whether Democrats like it or not, this is becoming a Forever War, and they must meet the moment.