Roe has actually bitten the dust. The judges were not intimidated by the leak or the protest. If the Democrats don’t try another round of court packing and if the upcoming midterms are conducted in an uncontroversial matter and not disputed, American constitutionalism and democracy just might still have a chance. Guess we’ll have to see. (Though I really cannot stop repeating that the current controversies surrounding the Supreme Court and the threat of court packing not being realized only because of the 50-50 split in the senate, show just how outdated the American constitution is).
While the decision has been extremely polarizing in the context of an abortion debate and related culture wars that have become more heated the last 10 years than at any time since at least the 1970s, my focus is, as usual, on the constitutional and judicial issues of the decision.
(Though I will quickly note how childish comparisons to the Taliban and references to the Middle Ages are. They do nothing but undermine the progressive stance. The USA from 1955 was neither Afghanistan, Medieval nor similar to the days of the Salem witch trials).
Roe has been criticized as a horrible decision even by abortion supporters and rightly so. It was one of the most blatant and poorly argued examples of judicial activism riddled with historical errors. The plurality in Casey barely upheld Roe at all, just the basic premise of abortion till viability.
Justice Thomas was in favor of overturning Roe in the days of Casey and now managed to get the 5 additional votes. The dissent by the 3 progressive justices attacked the decision as motivated by the fact that the majority had always opposed Roe and Casey and they actually had the audacity of accusing them of substituting of rule of law with rule of judges.
None of them are in any real position to attack a judicial decision for being either political or going against precedent. The famous gay marriage decision in 2015 overruled the previous precedent Baker v. Nelson. Ginsburg had openly partaken in gay marriage ceremonies before the ruling. Their decision was also motivated by personal views and Breyer himself has rejected originalism and has been open to judges promoting evolving constitutionalism. Only this time it went in a reactionary instead of a progressive direction.
Chief justice Roberts is honestly one of the only people on the court who feels any internal pressure to uphold precedents he dissented from or disagrees with.
Is undoing precedents created through judicial activism itself judicial activism? That’s a rhetorical question, the answer is simply no.
The Supreme Court has not prevented abortion from being legal in states through the democratic process or even the state constitution, it has however ended a precedent that favored pro-abortion minorities in red states.
The irony of Clarence Thomas taking the most reactionary stance and arguing that the supreme court should also re-examine the gay marriage decision (which he dissented from), Lawrence v Texas that overturned state laws against sodomy and Bowers v Hardwick (he also dissented from) and even the 1965 decision that established a right to birth control within marriage, is that no one can accuse Thomas of being a white supremacist and Thomas has in fact been a firm supporter of the so called color blind constitution.
All the unanimous desegregation decisions were at least within the spirit of the fourteenth amendment as were decisions enforcing a broad understanding of classical Liberals traditions such as freedom of speech and assembly. The American constitution even in its amended form simply contains no provisions even hinting at sexual liberties of any kind and there was no real basis for overturning puritan state law as old as the union itself.
As before 1965, sexual morals will largely have to be dealt with on a state level.
This decision shows above all else that promoting originalist jurisprudence is a viable project, that a return to federalism is possible and that poor legal decisions can be undone even after nearly half a century. This could inspire similar trends in other Western or American countries or perhaps even across the world. It will reignite the debate surrounding federalism in the US.
The Supreme Court building isn’t burning yet nor have there been futile impeachment votes either. So, that’s something.
Dems are hoping this will help them in the midterms… which are still nearly 4 months away and Biden… well his approval ratings… Though republicans in swing states would be wise to paint themselves as moderates. If they win either of the two houses, court packing and a federal abortion bill are off the table, though the senate specifically will enable them to block judicial nominees by Biden.
Is Thomas secretly gloating he finally found enough allies to overturn Roe with Biden in the white house?
But a final issue worth considering: Many abortion rights supporters have noted that almost all the Conservative justices are Catholic. Neil Gorsuch might be the only exception since he attends his wife’s protestant church now but it is not known how he identifies.
But the supposed opposition to this decisions includes the president Biden and speaker of the house Pelosi, both devout Catholics. In fact, the reason that the Democrats failed to pass a federal abortion law or to pack the Supreme Court is because swing state senator Manchin refused to abolish the filibuster. Manchin is also Catholic! Is the uni-party secretly Catholic? Does the Vatican rule the USA?
In fact, those who overturned Roe referenced Justice White who had dissented back in the day, and he was nominated by JFK! The first Catholic president. President Kennedy promised he’d be politically independent from the Vatican but was he really?