It is So Ordered. The Toppling of Roe
Whither Chief Justice Roberts & What Comes Next for the Court?
“Reaction to the Supreme Court decision on abortion fragmented yesterday along predictable lines…” stated a story on the front page of the New York Times. But that wasn’t today; it was on January 23, 1973 — the day after the Court handed down its landmark decision in Roe v. Wade.(1)
On the eve of Roe in 1973, there was broad public support for a woman’s right to choose. In “Before (and After) Roe v. Wade: New Questions About Backlash”(2), Linda Greenhouse and Reva B. Siegel note that a Gallup poll right before Roe was decided found 64% of the public supported that choosing to have an abortion should be made solely by a woman and her physician. Only 31% opposed.
In fact, at the time, 56% percent of Catholics, 68% of Republicans, and 59% of Democrats supported the right choose. More Republicans supported abortion than Democrats! In many ways, the Supreme Court in Roe reflected that national mood at the time. It was a 7–2 decision with three of the four Nixon justices voting in favor of abortion rights, while John F. Kennedy’s pick, Byron White (and a Catholic), dissented.
Greenhouse and Siegel’s article is provocative because it pushes back on the common perception that the Supreme Court ignited the flame around abortion in Roe. What Greenhouse and Siegel find was how the Republican party used abortion an electoral wedge issue as a way of mobilizing groups around their emerging “Moral Majority” after Roe was handed down. Not to yada, yada, yada all the history, but the effort worked and the political realignment is among the reasons why we are here today.
Prognosticator of Doom: A Slow-Motion Train Wreck
For supporters of Roe the recent months had all the making of watching slow-motion train wreck — but it one that has been decades-long in the making. Even so, the impact was nonetheless shocking when the Court handed down the actual decision. Supreme Court Justice Samuel Alito’s conclusion to his majority opinion in Dobbs v. Jackson Women’s Health Organization was unequivocal— Roe was no more, punctuated like a dagger with the traditional “It is so ordered” at its conclusion.
The response to yesterday’s Supreme Court decision overturning Roe v. Wade is coming in at a rapid pace. Let me join the chorus of commentators by adding a coda to a recent piece I wrote about the leak and case in “Disorder in the Court!* Of Abortion Law and Leaks in the Supreme Court.” If you have trouble sleeping give it a read.
In the piece, I play the role of prognosticator and oddsmaker. Let’s see what holds up and where I missed the mark.
Issue 1. Was the Leaked Alito Draft a Harry Truman-Like Venting Letter?
I raised the possibility that the leaked Alito majority opinion could be the “pure unadulterated Alito” position before being tempered by other justices during the deliberative process. I said this was reminiscent of President Harry Truman’s practice of writing scathing letters to critics but then sticking them in his desk drawer, left unsent — followed by a more measured response. The draft clearly wasn’t put into a drawer. Alito’s give ’em hell Harry-like draft was left mostly intact.
In other words, this constitutional upside-down cake has been baked for some time. The clear and piercing ending of Alito’s decision mirrors the leaked draft written months ago. Alito states in the final decision, “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”
Those 37 words erased nearly 50 years of a constitutional protected right for a woman to control her body.
Issue 2. Chief Justice Roberts Was Pushing for a Compromise
I speculated that Chief Justice Roberts was trying to avoid overturning Roe outright because he was concerned about the legitimacy of the Supreme Court. Without legitimacy the Court loses its authority. I argued Roberts could be navigating a potential compromise which would have upheld the central finding of Roe while also narrowing the constitutional scope and validating Mississippi’s law. Robert’s concurring opinion appears to affirm that hunch. In his concurring opinion he counters Alito’s majority opinion by stating,
“I would take a more measured course… But that is all I would say, out of adherence to a simple yet fundamental principle of judicial restraint: If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more. Perhaps we are not always perfect in following that command, and certainly there are cases that warrant an exception. But this is not one of them. 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 applying the doctrine of stare decisis.”
Roberts’s position, however, did not win the day. Whatever effort, if any, he tried wasn’t successfully. The Court’s decision and Roberts’s powerlessness to alter its course demonstrates why the Chief Justice is only the first among equals. More on that below.
Issue 3. Who Leaked the Draft Decision and Why?
This is still a great unknown. Even with his concern about judicial restraint, Chief Justice Roberts voted with majority and overturned Roe. This gets at the heart of the much-speculated issue of who leaked Justice Alito’s decision and why. Some, including myself, theorized that the source of the leak was aligned with the Alito opinion.
[Insert a sudden record needle scratch sound]
Wait, what? Why would pro-Alito forces do such a thing?
Pro-Alito forces may have been worried about defectors — or had insight into an alternative, like Roberts’s concurring opinion and therefore was trying to keep the conservative justices in line by outing there was majority support for Alito’s decision.
On this point I received some comments poking me that I was “seeing black helicopters” like the character Henry Hill (played by the late great Ray Liotta) from the epic movie, Goodfellas. Those poking me argued that the leaker clearly came from the liberal side of the Court. They could be right. But, in the end where there is smoke, there may be fire. Case in point, Henry Hill’s paranoia was warranted… he was being followed.
But, until the investigation into who leaked the document is completed (or is ever completed), the “pro-Alito draft leak theory” seems as plausible as others.
What the entire process illustrates is that Roberts is the incredible shrinking Chief Justice. Until now, he has been able to mostly impose his more measured approach of judicial restraint on the Court. For instance, concerned about the authority of the Court if it went too far, the Chief Justice has sided with the liberals on key cases — like saving the much maligned Affordable Care Act (which was, in part, a 5–4 decision on the key questions).
In the Dobbs case, even though Roberts argued he would have taken a “more measured approach” why in the end did he join the conservatives on the Court, as opposed to liberals — as he’s done in the past? It is likely because he is no longer the swing vote on the Court after President Trump’s third and final selection of Amy Coney Barrett. Roberts’s vote wouldn’t have mattered. The pro-Alito majority didn’t need the Chief Justice to win. The Court would have still overturned Roe and Roberts would have been on the opposite side of his conservative colleagues.
I’m sure Roberts didn’t want to end in the minority, left only with a concurring opinion. In a important case such as this Roberts recognized the deleterious effect on the legitimacy of the Court if he — as the Court’s Chief Justice — opposed the majority in overturning nearly 50 years of constitutional precedence.(3)
Issue 4. Are Other Rights on the Chopping Block?
In Disorder in the Court I stated,“Not only would Alito’s opinion be a seismic shift on abortion policy should it prevail, it has the potential of extending beyond abortion to other areas, like same sex marriage and contraception.” Now that Roe has been overturned by the Court, it seems some justices, like Clarence Thomas, are thinking just that. In his concurring opinion, Justice Thomas states, “…in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold [right to privacy], Lawrence [right to engage in private consensual sex among same sex couples], and Obergefell [marriage equality]. Because any substantive due process decision is “‘demonstrably erroneous,’”
Some could read Thomas’s concurrence as an invitation to bring other cases to challenge these rights, but it’s too early to tell if the Court will entertain such a challenge. I wouldn’t, however, bet against it. Like, Roe, Justice Thomas is clearly stating that the constitutional foundation Roe and these other cases were built on are “demonstrably erroneous.” If that foundation crumbles, so do these other rights — with life imitating Margaret Atwood’s art.
Post Script to the Coda: Cold Comfort
Public confidence in the Court’s judgment is essential to its success. But as I mentioned in the previous analysis on abortion, the Supreme Court is already facing a growing confidence gap among the American people. Fifty-three percent of the nation disapprove of the Supreme Court and only 40% of the nation support the Court.
As Montesquieu — the theoretical architect of our system of government — stated in Spirit of the Laws that, “Of the three powers [executive, legislative, and judicial]…the judiciary is next to nothing” for its power stems from it’s decisions — and only if the Court’s decision are enforced by the other branches of government and adhered to by the people. When the Court’s authority is driven by the country’s acceptance of its judgment, its words and decisions matter. If the Court goes too far and the people lose confidence in the institution, it loses its power. It can’t look political like it only depends on who in appointed to the Court. That is at the very heart of Roberts’s concern when urging judicial restraint. Pure unadulterated Alito is bad for the long term authority of the Court.
As I pointed out in my previous analysis, a majority of Americans still support the central protection in Roe. Depending on the public opinion poll, support for Roe hovers around 58–60% support with only about 30% of the nation opposing. That’s different than whether the public supports certain restrictions — many do, and I believe that was in Justice Roberts’s mind. This is similar to when Sandra Day O’Connor and other conservative justices on the Court upheld Roe in Planned Parenthood v. Casey in 1992 but allowed for various restrictions. The majority on the Court today, however, is not aligned with the majority of the country. Chief Justice Roberts’s internal dialogue must be screaming “DANGER! DANGER!”
The Court has weathered controversial cases before. In 2000, after weeks of hanging chads, endless lawsuits, and tempers flaring — where the nation didn’t know who the next president would be — the Supreme Court in Bush v. Gore (with a razor thin 5–4 majority) settled a hotly contested presidential election. Many in the country disagreed with the Court’s decision and outcome, but the Court’s authority as an institution held and George W. Bush became president. We now take that process for granted, but recent events demonstrate how fragile our system still is.
These are no ordinary times. In the shadow of the January 6th hearings — where the legitimacy of a presidential election was falsely called into question in order to undo a free and fair election illustrates how close we can come to the constitutional abyss. Our institutions and system are under attack and how much damage has been done is still unknown.
Chief Justice Robert must understand this. That’s why he wanted to strike a balance in a case that overturned a constitutional right granted five decades ago. The problem is, after President Donald Trump’s three selections to the Court (a president who lost the popular vote in his election by a significant margin), Roberts’s is no longer in control of the ideological and institutional positioning on the Court. As a result, the Court has become more of an outlier to where the American people are.
In the end, the palace intrigue over the who leaked the draft and the deliberative process resulting in how the Court ended up where it did is unimportant when compared to the real-world impact the Dobbs decision will have. Many state “trigger” laws have now kicked into effect — erasing the legal right to an abortion for millions of women. Words on a page of the Court decision may feel as if it will only cause a ripple, but the impact will be more like a tsunami. And the Supreme Court is at the center of a storm it caused.
Words on a page of the Court decision may feel as if it will only cause a ripple, but the impact will be more like a tsunami. And the Supreme Court is at the center of a storm it caused.
NOTES:
(1) Of course, there’s always a local angle. On the very same front page the Times ran a story about the how the recent decision in Roe took the air out of the anti-abortion advocates’ sails to repeal New York’s recently adopted liberalized abortion law.
(2) Linda Greenhouse and Reva B. Siegel, “Before (and After) Roe v. Wade: New Questions About Backlash” The Yale Law Journal, Vol. 120, No. 8 (June 2011), pp. 2028–2087.
(3) Roberts’s action in Dobbs is reminiscent to Nixon appointee, Chief Justice Warren Burger’s action when Roe was decided. Burger opposed expanding abortion rights, but didn’t want to be in the minority so he sided with the majority. See Bob Woodward and Scott Armstrong’s The Brethren: Inside the Supreme Court.
