Destabilized Saturday Edition #24
The upside of Roe v. Wade's full reversal, the #YOLO Supreme Court, "Our own president set us up", wildfires in Europe
Quick programming note: I’m on vacation next week so there won’t be a weekly article, but the Saturday Edition will still come out at its regular time on July 9th.
If Chief Justice John Roberts had gotten his way, Roe v. Wade would have died a slow death. In his concurring opinion in Dobbs v. Jackson Women's Health Organization, Roberts made it clear he believed Roe was wrongly decided and should eventually be done away with. But, he said, he would have taken “a more measured course.”
The Court's decision to overrule Roe and Casey is a serious jolt to the legal system—regardless of how you view those cases.
…Surely we should adhere closely to principles of judicial restraint here, where the broader path the Court chooses entails repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed.
Had Roberts’ preferred approach won out, the right to abortion access would have been narrowed but not yet eliminated. Though the full reversal of Roe is devastating and we rightly mourn the tragedy it represents and the damage it will do, the more radical right-wing justices getting their way does have a silver lining.
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Roe being overturned is part of a larger, ongoing right-wing backlash to six decades of demographic change and advances in social equality for women, LGBT Americans, and racial and religious minorities. As Ron Brownstein reported in February:
From Florida, Georgia and Tennessee through Texas, South Dakota and Montana, Republican-controlled states are approving a torrent of culturally conservative hot-button legislation at a pace unmatched in recent times, and probably ever.
States where the GOP controls both the governorship and state legislature are moving in unprecedented numbers to restrict abortion, limit access to voting, ban books, retrench transgender rights and constrain teachers' ability to discuss race, gender and sexual orientation at public K-12 schools and increasingly at public colleges and universities.
Many of the same states are simultaneously rescinding restrictions on gun ownership, stiffening penalties for people engaged in unruly public protests and, in a new twist, empowering private citizens to bring lawsuits to enforce many of these initiatives.
…[T]hese red state moves are remaking the American civil liberties landscape at breathtaking speed -- and with little national attention to their cumulative effect. Taken together, these moves amount to a stark reversal of what many legal scholars call the "rights revolution" beginning in the 1960s, in which Congress and especially the Supreme Court expanded the number of rights available to all Americans nationwide and struck down state laws that constricted those rights on issues from racial segregation to abortion and same-sex marriage.
Crucially, these policy changes and rights rollbacks aren’t independent from each other. As Georgetown history professor Thomas Zimmer explains, they’re components of a coherent worldview and ongoing political project:
Ban abortion and contraception, criminalize LGBTQ+ people; install strict guidelines for education that are in line with a white nationalist understanding of the past and the present, censor dissent; restrict voting rights, purge election commissions. These are not disparate actions. The overriding concern behind all of them is to maintain traditional political, social, cultural and economic hierarchies. It’s a vision that serves, first and foremost, a wealthy white elite – and all those who cling to white Christian patriarchal dominance. It’s a political project that goes well beyond Congress and state legislatures: this is about restoring and entrenching traditional authority in the local community, in the public square, in the workplace, in the family.
As the author of the Dobbs majority opinion overturning Roe, Justice Alito might agree with this. He is, after all, the justice who invented the “deeply rooted in this Nation’s history and tradition” test for whether a claimed right is protected by the Constitution. The old days being what they were, guess what tends to be most “deeply rooted” in America’s history and tradition? A social hierarchy with white men at the top. It’s hard to imagine a test more perfectly aligned with a right-wing movement to revoke progress toward social equality.
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The reactionary backlash is going after more than just equality-focused civil rights. Republicans are restricting voting and, in a range of ways, undermining the political power of Democratic-leaning communities and voters. The most openly authoritarian of these GOP strategies is preparing to steal the 2024 election if they can’t defeat the Democratic candidate legitimately. As Bart Gellman detailed in December:
For more than a year now, with tacit and explicit support from their party’s national leaders, state Republican operatives have been building an apparatus of election theft. Elected officials in Arizona, Texas, Georgia, Pennsylvania, Wisconsin, Michigan, and other states have studied Donald Trump’s crusade to overturn the 2020 election. They have noted the points of failure and have taken concrete steps to avoid failure next time. Some of them have rewritten statutes to seize partisan control of decisions about which ballots to count and which to discard, which results to certify and which to reject. They are driving out or stripping power from election officials who refused to go along with the plot last November, aiming to replace them with exponents of the Big Lie. They are fine-tuning a legal argument that purports to allow state legislators to override the choice of the voters.
Guess who will ultimately decide if the legal argument that state legislators can override the choice of the voters is constitutionally valid? You guessed it, Slammin’ Sammy Alito and his merry band of #yolo Supreme Court radicals.
Which brings us back to why there’s a silver lining to Roe being overturned outright.
The reactionary backlash isn’t centrally controlled, but if it were the best approach would be to keep it quiet and below the radar of regular, politics-averse Americans until the right-wing capture of the political system is too far along to reverse. This is because the best chance America’s mainstream majority has to fight back is for the immense stakes to be crystal clear, fueling grassroots organizing and leading to huge turnout and a massive electoral victory that discredits authoritarian forces. The heavy-handed overturning of Roe is exactly the kind of jarring, high-salience catalyst needed for a mass mobilization to succeed. There’s no guarantee it will work, but it gives America’s pro-democracy majority an opening to defeat the right-wing backlash.
But it’s just an opportunity; for it to become real we have to seize it.
My Work
An optimistic and a pessimistic perspective on the politics of overturning Roe v. Wade
[I]t will be entirely understandable if people choose to move away from states that criminalize abortion. Nevertheless, we should promote a norm among Democrats that the productive and best choice, for those who can afford to make it, is to stay in purple states and fight for the future. I recognize there are real risks and this is all very easy for me to say as a man living in a blue state, but it is also true that if a modest Democratic exodus from purple states hands the White House and Congress to Republicans in 2024, the results may very well be a national abortion ban and the accelerated erosion of American democracy.
If those two things occur, there may be nowhere safe left to go.
Interesting Reads
The Supreme Court Is the Final Word on Nothing
Article 3 of the Constitution gives the Supreme Court “original jurisdiction” in all cases affecting “Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party.” That part is obviously in effect, although most cases involving states occur in the lower federal courts established by Congress. The Constitution then states that in all other cases, “the Supreme Court shall have appellate jurisdiction.” This, too, is in full effect.
But then the Constitution tells us that the court’s appellate jurisdiction is subject to “such Exceptions” and “under such Regulations” as “the Congress shall make.”
This is where it gets interesting.
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