“Power, Not Reason”: The Fall of Roe and the Rise of Republican Orthodoxy at the Supreme Court

The ink was barely dry on the Supreme Court ruling that expanded the scope and understanding of the Second Amendment right to bear arms when a five-judicial majority root-and-branch eliminated what had been an expectation of nearly 50 years. every American and their families: that women have a fundamental right to decide to terminate their pregnancy until fetal viability. Roe to Wade, which has established this protection since 1973, and Planned Parenthood v. Casey, the 1992 ruling reaffirming the “central position” of that landmark is dead and gone—a result that arose not from careful decision-making and analytical rigor, but from power. The power of five judges — three of them installed by a president who lost the votes by wide margins twice, and confirmed by a senate representing less than half of the American electorate — who decided with a straight face that the issue of abortion is one that must be returned to the people and their representatives.

In the story of these judges, their decision is in Dobbs v. Jackson Women’s Health Organization, radical and destabilizing, however in reality, is in reality a form of modesty and respect for democracy. “The Constitution does not prohibit the citizens of any state from regulating or prohibiting abortion,” Justice writes Samuel Alito in the conclusion of its 79-page opinion, which largely corresponds in tone and content to the leaked draft that shook up our politics in early May. †roe and Casey appropriated that authority. We now reject those decisions and return that authority to the people and their elected representatives.” Judges were with him Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Comey Barrett.

These last three, all benefactors of Donald Trump, are the reason for the end of roe is possible. The court that left Ruth Bader Ginsburg in 2020 would not not have agreed to hear Dobbs v. Jackson Women’s Health Organization, the Mississippi case that abolished American law for nearly half a century today. Indeed, when the case arrived at the Supreme Court in early 2020, the request to hear it remained unresolved in court until May 2021. By then, the Supreme Court was no longer the Roberts court, but the Trump court — and Mississippi, which hadn’t even asked to overrule roe in his initial petition took advantage of this change in personnel and fortune. Every justice creates a new court, the saying goes, and now the state had a chance to go bankrupt. And it did. And other Republican-led states took notice as well — enacting a series of abortion restrictions, some of the most extreme and draconian our nation has ever seen, because they knew they now had a captive audience at the Supreme Court.

Chief Justice John Roberts, weakened as ever, did not join much of the Alito opinion released Friday, being a formalist who recognized it for what it is: a procedural “move”. Too much too early. “The Court’s Decision to Reject” roe and Casey is a serious shock to the justice system, no matter how you look at those cases,” Roberts wrote. “A scarier decision to dismiss the misguided viability line would be significantly less troubling, and nothing more is needed to decide this case.” In other words, if judicial restraint means anything, it can mean that roe alive as it is slowly undermined, slice by slice. To Roberts, this is what courage looks like. (Justice Thomas, a long-time fervent opponent of abortion, suggested in a separate run-up to what many feared: that he is facing what the law calls a “substantive due process,” which has long had protected rights not enumerated in the constitution, such as using birth control and choosing who to marry.)

Not so for the Trump judges, who joined roeunconditional death. But for two of them, Gorsuch and Barrett, their cowardly silence speaks louder than any words they may have written. Surely the politics of what they’ve done is too obvious to publicly defend or deny, these judges—each of them a self-proclaimed originalist who believes the meaning of the Constitution is frozen in time—signed up. quietly taking their names on Alito’s decision without writing down a single reasoning or defense. Gorsuch may be ashamed that Justice Anthony Kennedy, for whom he worked and is still alive is one of the authors who wrote the Casey multiple that confirmed Roe. And to Barrett, who signed an anti-abortion ad before she became a judge, explaining herself may seem like a farce.

Kavanaugh, who? Susan Collins said he would never do what he did today, explained to himself, only offered a fig leaf: that let states decide that abortion is the way things should be, because doing something else — including protecting a constitutional right — akin to “taking sides” on an extremely difficult moral and policy issue. It is better that we remain neutral and equanimious.” Following today’s decision, the nine members of this Court will no longer rule on the fundamental legality of abortion before viability for all 330 million Americans,” emphasizes Kavanaugh.

But as judges Stephen Breyer, Sonia Sotomayor, and Elena Kagan observed in a vigorous dissent they spawned jointly, there is nothing neutral or modest about undermining a fundamental right that has been the fabric of people’s lives for decades. The point of constitutional protections, such as gays to marry or women to use contraception, is that they cannot be subject to the whims of the electorate or politicians. “The point of all these examples is that when it comes to rights, the Court will not act ‘neutral’ if it leaves everything to the States,” write the liberal judges. “On the contrary, the Court acts neutrally when it protects the law from all newcomers. And to apply that point to the case here, when the Court decimates a right that women have had for 50 years, the Court is not “scrupulously neutral.” Instead, it takes sides: against women who want to exercise the law, and against states (like Mississippi) who want to prevent them from doing so.”

Since Barrett joined the Supreme Court, these dissenters have been lonely and powerless, and there’s no reason to believe things will change if Breyer formally steps down this summer and Ketanji Brown Jackson takes its place. Because of this powerlessness to change the law, or at least protect what’s left of it, they can only protest—and do so loudly, with arguments and with as much moral clarity as possible. In this regard, perhaps the most striking feature of their joint dissent, which spans 60 pages and includes an appendix explaining how the majority support the principle of specifically to achieve a desired result, the focus is on power. Their take includes a quote from one of Judge Thurgood Marshall’s last warnings as he prepared to resign in 1991, just a year before the fate of abortion rights, when in their youth, seemed to hang by a thread: “Power No reason, is the new currency of this Court’s decision-making,” Marshall wrote.

That section of the dissenters’ opinion, which begins on page 57 and spans a few pages, is worth reading in full because it sets out the stakes of what it means to exercise power simply because new judges believe in a “new doctrinal school”. ‘, act ‘based on numbers’ or simply because you can. Power in numbers, not in reason, is indeed what drives this Supreme Court, which continues to cut and burn with no regard for its position in the eyes of the public, already at its lowest in history. “For all of us, in our time at this Court, that has never been more true than today,” the dissenters continue. “In overruling roe and casey, this Court betrays its guiding principles. With sadness — for this Court, but more so for the many millions of American women who have lost fundamental constitutional protections today — we disagree.”