It gives me no joy to say that my prediction in April that the Supreme Court was set to launch a war on modern America — on its social and legal progress over decades — was accurate. In a tone more reminiscent of a MAGA rally than a high court, the majority Dobbs v. Jackson Women’s Health Organization opinion overturning the right to abortion drips with disdain for women’s concerns about personal autonomy and for the principle of stare decisis.
As bad as this particular opinion is, the broader picture is about much more than abortion.
The right-wing court wants to lock 21st-century America into the Founders’ world or, at the latest, the late 19th century, conveniently skipping past the parts of history that disfavor its cramped view of individual rights. Women, minorities, gay people and others once had little political, economic or social power. And so they will again, if the court gets its way.
Look carefully at the court’s language hopscotching through history. “Until the latter part of the 20th century, such a right [to abortion] was entirely unknown in American law,” the opinion proclaims. The past 50 years when Roe v. Wade followed a line of previous cases concerning personal autonomy (“privacy”) don’t count, it seems.
The court also leaps past the part of American history when abortion was generally legal up to “quickening.” (Oops, the majority gave it away: “We begin with the common law, under which abortion was a crime at least after ‘quickening’ — i.e., the first felt movement of the fetus in the womb, which usually occurs between the 16th and 18th week of pregnancy.” After quickening, even in the majority’s telling.)
Why bother with all this selective, fatuous historical argument? This is where it gets scary and goes well beyond abortion. The court insists that our rights under the 14th Amendment were fixed in 1868. We therefore get a perverse result, as the dissent explains:
Because laws in 1868 deprived women of any control over their bodies, the majority approves States doing so today. Because those laws prevented women from charting the course of their own lives, the majority says States can do the same again. Because in 1868, the government could tell a pregnant woman — even in the first days of her pregnancy — that she could do nothing but bear a child, it can once more impose that command.
Women were denied lots of rights in 1868. Only in the 20th century did some states affirm their right to hold property or take out credit or hold certain professions. Gay people and minor children had no rights to speak of, nor did the physically or mentally disabled. This court declares we are stuck with the precise state of the law pre-civil rights, pre-women’s rights, pre-modern. And herein rest the absurdity and danger of a Supreme Court unmoored from precedent and unconcerned with the impact of its decisions on today’s America.
Still, perhaps my prediction was off by 100 years. It’s not the 1960s to which the right-wing court wants to take us but the 1860s. That radical, extreme view virtually guarantees outcomes in conflict with diverse, modern America. The notion that liberty and equality are ever expanding is kaput. The moral universe is bending backward.
How radical is this? Well, Justice Clarence Thomas provided the answer by arguing in his concurring opinion that the court should reconsider rights going well beyond abortion. President Biden was right to focus on the import of this: “[Thomas] explicitly called to reconsider the right of marriage equality, the right of couples to make their choices on contraception. This is an extreme and dangerous path the court is now taking us on.”
So it’s not right to say “Roe is on the ballot” in November. The 21st century is on the ballot. At risk is the America in which the definition of equality has expanded, in which the state is prohibited from micromanaging our lives, in which one’s right to make personal decisions is not governed by Zip code.
And it’s not just the court that is taking us back to the 19th century. Republicans at all levels of government cheered the decision. Former vice president Mike Pence asserted that a nationwide abortion ban should follow. This is a party of radicalism, of contempt for the modern America in which White males do not get to make all the rules. It’s a view of democracy akin to right-wing authoritarian regimes where elections (sort of) are held but individual liberty and human rights have no guarantee, given few constraints on government power.
Many thought Sen. Ted Kennedy (D-Mass.) was grossly exaggerating when he declared in 1987: “Robert Bork’s America is a land in which women would be forced into back-alley abortions, Blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors on midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the government, and the door of the federal courts would be shut on the fingers of millions of citizens.” It turns out he was simply premature — and failed to foresee a five-person majority of Robert Borks.
And it’s going to get worse if the Supreme Court decides in West Virginia v. the Environmental Protection Agency that the administrative state (the EPA, but why stop there?) cannot regulate carbon emissions without detailed directions from Congress. And wait until the court considers a North Carolina case that state legislatures can pull off their own coups by reversing the popular vote of the people for president if it does not suit the lawmakers. (Donald Trump’s allies would have been constitutionally empowered to override the vote absent any evidence of fraud.)
Are we doomed to board the Republicans’ time machine back to the 19th century? Certainly not.
First, Congress can act to secure all the rights that Thomas identified for the chopping block. Let Republicans filibuster protection for abortion, for contraception and for interracial and same-sex marriage. And if they do, then voters can send Democrats with sufficient fortitude to modify the filibuster to protect their fundamental rights.
Second, since the Supreme Court is sending the most personal, intimate decisions to state legislatures and governors as well as local district attorneys and judges, those desiring a constitutional regime for the 21st century must fill every one of those offices with people who respect fundamental rights. The 21st century vs. the 19th century becomes the issue in every election.
But inflation! But gas prices! We will have the same rate of inflation (thanks to the Federal Reserve) with Republican majorities as with Democratic ones. The former has no secret plan to reduce prices. What we won’t have with Republicans in power is a country rooted in the 21st century.
For that, you need to vote out the people who apparently thought America was at its best in 1868.