Last month, a project 50 years in the making near-reached completion, and there were tears of outrage and tears of joy. On May 2, POLITICO published a leaked draft of a Supreme Court opinion that would overturn Roe v. Wade, the 1973 decision enshrining the right to an abortion as a Constitutional protection. The draft opinion, authored by Justice Samuel Alito, overrules the five-decade precedent established by Roe and affirmed by the Court’s 1992 decision in Planned Parenthood v. Casey. The case is still pending, and the opinion is not necessarily the final ruling. But as of two weeks ago, five of the nine justices—all dogmatic conservatives and Republican appointees—support a complete overturn of Roe. In all likelihood, the legal right to an abortion, which has for 50 years been the law of the land, will be eliminated soon.
Such a decision would be the culmination of the conservative movement’s decades-long program to infiltrate and dominate American politics through the judicial system. From the outset, Roe has been the arch-goal, the white whale animating this project. But for a movement entirely reactionary, for whom fury is fuel and joy lies only in malice, exuberance is not a natural disposition. Conservatives from the Senate to Fox News roundly lambasted the leak for undermining the “sacrosanct” legitimacy of the Court. Chief Justice John Roberts, who reportedly does not support a total reversal of Roe, echoed these sentiments: “To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed.”
The unfortunate news for Chief Justice Roberts, which he is only just now beginning to see, is that the Supreme Court lost all claims to integrity long ago. Americans born in this century know only the Court that effectively decided a presidential election, gutted voting rights, and gave corporations free rein to exert political influence through so-called Super PACs. This Court—of which five members were appointed by presidents a majority of the country voted against, with not one but two seats stolen in unflinching displays of sheer political force—has, for many years, been naked in its partisanship. Yet, aided and abetted by institutionalists across the political spectrum, it continues to hide behind a fantastical notion of nonpartisanship and impartiality. And all this has led us here, to this moment, where it seems the Court, neither supported by nor in any way accountable to the public majority, will end the right to an abortion. And the government duly elected in November 2020 appears neither willing nor able to stop it.
This moment presents one crisis and reveals in totality another. First and most immediate—the ruling itself. Justice Alito, perhaps the Court’s most pugnacious conservative, has composed a shockingly radical opinion. His castigations of Roe and its authors are absolute and unflinching. He labels the decision “egregiously wrong from the start” and its reasoning “exceptionally weak.” In the event of a complete reversal of Roe and Casey, nearly 30 states could restrict or outlaw abortion entirely. Missouri, which has enacted a near-total abortion ban, is considering a measure making “aiding and abeting” out-of-state abortions a crime. Should Roe be overturned this month, mass suffering is but a brutal inevitability. Women will be forced to carry unwanted and potentially dangerous pregnancies to term, sometimes even in cases of rape or incest. Doctors who perform abortions will be imprisoned. People will die. And no matter its legality, no matter how cruel or draconian the law, abortion in America will continue.
Alito’s decision is dangerous not only for the conclusion it reaches but for the path of reasoning upon which it travels. The Justice, his verbiage oozing with bellicose zeal, mounts a caustic assault on what legal scholars deem “unenumerated rights”—those not explicitly protected by the Constitution but secured implicitly in the text of the Ninth and Fourteenth Amendments. By current legal doctrine, abortion is one such right. As is contraception. As are the rights of gay and interracial couples to marry or engage in sexual activity.
Unenumerated rights, Alito asserts, are only guaranteed if “deeply rooted in the Nation’s history and tradition.” The abstruse legalese of his argument, though frivolous and sophistic, holds weighty implications. None of the above have any claim to deep roots in American history or tradition, and indeed were throughout much of American history savagely and bitterly denied. Alito takes great care to note that his reasoning does not necessarily apply to other unenumerated rights. Abortion, he explains, is “critically different.”
But he gives us little reason to believe him. A sober accounting of Alito and his colleagues’ jurisprudential history and the current trajectory of the Republican Party make alarmingly clear that no right is off-limits. And LGBTQ+ rights are in dire peril. During the confirmation hearings of Judge Ketanji Brown Jackson, Republican senators took aim at Obergefell v. Hodges, the 2015 Supreme Court case legalizing same-sex marriage. Justice Alito himself dissented to Obergefell. His objection: “[The Constitution] protect[s] only those rights that are ‘deeply rooted in this Nation’s history and tradition.’ And it is beyond dispute that the right to same-sex marriage is not among those rights.” His reasoning in the leaked draft overturning Roe is nearly identical. Should this opinion stand, it creates a legal framework that could be used to overturn Obergefell as well as Lawrence v. Texas (banning the criminalization of gay sex), Griswold v. Connecticut (right to contraceptives), and even Loving v. Virginia (right to interracial marriage). The path he lays, should we follow it to its logical endpoint, leads to an inexorable conclusion: Nothing is safe, nothing is sacred, nothing is off the table.
There is a sanguinary irony to Alito’s appeals to history and tradition. For much of American history, the Supreme Court served as a brutal, reactionary force, sanctioning and perpetuating the most heinous of acts and institutions. The legal tradition of American liberty is one narrow and violent, due in no small part to the Supreme Court. And through nearly 250 years of existence, its powers, themselves only vaguely enumerated in the Constitution, have grown awesome and terrifying.
And therein lies the second crisis—the crisis of the Court and the legitimacy of American democracy. It is a crisis of excess confidence, of obstinate denialism at the unraveling of our democratic institutions. In the last two decades, these institutions have grown utterly unresponsive and unaccountable to the will of the governed, from which it purportedly derives its legitimacy.
Elimination of the right to an abortion would be one of the most monumental shifts in US social policy this century, along with the legalization of same-sex marriage. Each, though proceeding in opposing directions on the continuum of progress, was determined by the one branch of government not beholden to the voting public. Our presidents are now often elected while losing the popular vote and forced by a gridlocked Congress to govern by fiat. Our Senate is deeply unrepresentative and dysfunctional, serving largely as a mechanism for churning out judicial nominees, who have in turn stepped in as pseudo-legislators. Our political system has ground to a screeching halt. Despite winning decisive majorities of the electorate in 2020, President Biden and the Democratic Congress have essentially no response to the Roe decision other than “vote harder in the midterms!”
The lack of all but rhetorical lamentations and electoral pleas from Democratic leaders has understandably infuriated liberals and progressives, many of whom have noted that it was for precisely this reason that they voted in 2020. And yet both are correct. There are not currently enough Democrats in Congress to enact meaningful change, but in a functional republic, winning the presidency and majorities should be enough. Resignation and apathy toward electoral politics is not an option when so many lives hang in the balance. But our leaders, those who profess to care about progress, have been unwilling to accept and address the fact that our democracy has atrophied.
Nearly two-thirds of Americans oppose the reversal of Roe v. Wade. Yet this Court, unelected and anointed by presidents who have governed without popular support, attempts to install through concrete edict a barbaric legal regime that will be, for some, a death sentence.
I thus reject John Roberts’s tears, for this moment is his. For nearly two decades, his Court has broken the institution’s mythos and proved its impartiality fallacious. He may, in his modest words, try to run from this legacy, but it persists nonetheless. This is a Court hijacked by the Republican Party, that has eschewed any pretense of Constitutional reverence for the unrelenting advancement of a far-right agenda. It is rich to hear such Republican loyalists as Justices Clarence Thomas and Amy Coney Barrett—whose confirmation was perhaps the most brazen exhibition of unadulterated partisanship in modern political memory—mourn the Court’s legitimacy. Irony is indeed dead.
A reversal of Roe reveals with lucid clarity the crisis of decrepit democracy that lies before us. Five people, clothed in immense power, can and may undo 50 years of progress against the will of millions. And at this moment, there is nothing we can do to halt their onslaught. Should we vote and protest? Should we exercise whatever power we have? Absolutely. But ultimately that will not be enough.
Where this moment leads I do not know, but it is a place where the light does not shine. Our system, designed to be steadfast against fleeting populist whims, has become entirely impervious to change. It hardens, but grows brittle. And a breaking point approaches.