The Supreme Court Is Working As Designed
9:02 AM EST on December 2, 2021
On Wednesday, the U.S. Supreme Court signaled that it was poised to overturn the constitutional right to abortion established 48 years ago in Roe v. Wade. During oral arguments in Dobbs v. Jackson Women’s Health Organization, five of the Court's Republican-appointed justices—and specifically Trump appointees Amy Coney Barrett and Brett Kavanaugh—made it clear they were ready to reject precedent and deprive half of Americans of the right to forgo forced birth.
Barrett, who is a conservative Catholic and mother of seven, repeatedly invoked “safe haven” laws in order to argue that adoption makes abortion unnecessary, a posture that ignores the physical, mental, and financial tolls of being pregnant, giving birth, and placing a child for adoption. Kavanaugh, who issued the threat “What goes around, comes around” in his snarling Senate confirmation testimony, said he would want to change any “seriously wrong” precedent and leave abortion laws up to the states, a move that would lead to a patchwork system with some states enforcing near total abortion bans and leaving many Americans, especially poor Americans, without access to this vital health care. The court won’t make a ruling until June, but court watchers agree that this will likely be the end of Roe v. Wade, and potentially even pave the way for nationwide abortion bans.
This eventuality was a long time coming, as anyone who isn’t an idiot and/or personally invested in upholding the lie that the U.S. justice system is a neutral arbiter of uniform rules would tell you. Unfortunately, both of these categories are crowded. Take Harvard Law professor and Bloomberg columnist Noah Feldman, who seems to occupy the middle of the Venn diagram. In September 2020, he wrote a piece titled, “Amy Coney Barrett Deserves to Be on the Supreme Court.” After calling Barrett, his buddy of two decades, a “brilliant and conscientious lawyer who will analyze and decide cases in good faith,” Feldman wrote:
It would be naïve to deny that there is plenty of politics in constitutional interpretation. There are winners and losers every time the justices take a stance on an important issue of law. Nevertheless, the institutional purpose of the Supreme Court is to find a resolution of political conflicts through reason, interpretation, argument and vote-casting, not pure power politics. It follows that the social purpose of the Supreme Court is best served when justices on all sides of the issues make the strongest possible arguments, and do so in a way that facilitates debate and conversation.
(During the oral arguments yesterday, Barrett, this supposedly brilliant lawyer operating in good faith, compared the "infringement on bodily autonomy" that comes from the state forcing a person to carry a fetus to term to that which comes from having to get a vaccine. Yikes!)
But now let's compare Feldman’s high-minded words about reason and argument, not "pure power politics," with what he wrote in an August column titled “Kavanaugh Is the Last Hope for Abortion Rights.” In it, Feldman exhaustively catalogued the pros and cons of Kavanaugh overturning the constitutional right to abortion—of course, only in terms of what it would mean for Kavanaugh's career, legacy, and social life. Feldman was far too busy fretting over which decision would lead to the best outcome for Kavanaugh to worry about which decision would lead to the best outcome for American citizens. The entire thing is worth a read for its sheer absurdity, but here's a representative passage:
The risk for Kavanaugh is that if he becomes the swing justice he might lose his friends on the right without gaining any friends on the other side. In a worst-case scenario, that could leave Kavanaugh metaphorically friendless. That is a difficult place for a Supreme Court justice to be, given the isolating nature of the job. It would be doubly difficult for someone as outgoing as Kavanaugh, who thrives on social interaction.
Liberals who want Kavanaugh to take up Kennedy’s mantle need a way to send him the message that if he occupies the center, his jurisprudence will be taken seriously and praised notwithstanding his confirmation hearing. In a polarized political atmosphere, sending this message is tricky, to say the least. No one can confidently guarantee how campus politics will interact with constitutional and national politics.
Meanwhile, all conservatives have to do is quietly remind Kavanaugh that they have his back and that they are his true political community.
There is perhaps no more damning indictment of the Court-respecting, law professor class than the fact that one of its members could write the above passage—what better description of "pure power politics" could there possibly be?—while also maintaining the belief that the court is anything other than a political tool.
Feldman isn't alone in his blinkered world, which is part of the reason why the Court is as broken as it is today. As Adam Serwer wrote in September, in a piece about how the Court is and has been an inherently and unavoidably partisan structure packed with partisan justices, many powerful lawyers are deeply personally committed to shoring up the credibility of the Supreme Court:
The elite legal community relies on the prestige of the Court, which makes many prominent liberal lawyers hesitant to offer harsh criticisms of its conduct. Elite law professors, elite litigators, and even those who hope to serve in Democratic administrations have an interest in downplaying the Court’s radicalism and partisanship. Because these elite lawyers are a powerful Democratic Party constituency, strident criticisms of the Court are left to those without similar ambitions or political connections.
The Supreme Court overturning Roe v. Wade feels inevitable precisely because it's a political institution presided over by justices who are political actors. It's an institution that was built not by the machinations of a functional, fair democracy, but by the efforts of a sprawling and vicious network of right-wing activists, from Federalist Society freaks to sitting senators, who long ago figured out the that courts were their ticket to maintaining minority rule, and then spent decades maneuvering to this point.
Sonia Sotomayor gestured at this herself during Wednesday's oral arguments. She noted that the sponsors of the abortion ban at the heart of Dobbs v. Jackson Women's Health Organization admitted that they introduced the ban because there were "new justices" on the Court who might overturn Roe v. Wade. Then she asked, "Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?" Then she answered herself: "I don't see how it is possible."