Linda Greenhouse has done this fine bit of interpreting the between-the-lines meanings of the recent Supreme Court decision about unanimous jury verdicts and finds that
it’s clear that what this case was really about was precedent: when to honor it, when to discard it and how to shape public perceptions of doing the latter. Justice Kavanaugh’s 18-page concurring opinion, which no other justice joined, included a list of 30 of “the court’s most notable and consequential decisions” that overturned earlier rulings — a kind of “30 ways to leave your lover” inventory of decisions that occupied the ideological spectrum from Brown v. Board of Education to Citizens United.
That’s correct, but here’s what she doesn’t come out and say: the people who think that because CJ Roberts “saved” Obamacare that he is an “institutionalist” and therefore will not vote to overturn Roe v. Wade. I just don’t believe that’s correct at all. The conservative legal movement was created to overturn the decisions of the Warren-court era, but Roe was always what fueled it. It was allowed to build for decades unchallenged partly out of liberal hubris, but also out of the perception that the Supreme Court was a force for progress—on the basis of a handful of decisions over a 200-year period where it was almost always the other way around.
So, while I can understand the logic of thinking that if Obamacare is safe, then so is Roe, but I think that Obamacare, or the welfare state in general, was seen as a problem for the legislative side of the conservative movement, at least in the period that formed the jurisprudential identities of the current conservative justices.
If Roberts wants to save himself at all, I suspect it will be that he somehow makes it known that it was he who simply overruled Roe and did not extend the definition of “life” back to conception. In the former case, the states can legislate its legality, and, in the latter cannot.
But it’s coming. They don’t have any excuses not to deliver this to their base this time. This was always what it was all about. To continue with the Obama example, it would have been like Obama ignoring health care and the Iraq war to focus only on the equal rights amendment. It’s a worthy goal, it belongs to liberals, and many have worked hard for it, but it wasn’t what propelled Obama to the presidency. These judges were put on the court to repeal Roe. Period.
That isn’t to say that along the way they won’t do terrible things. The case Greenhouse wrote about actually had a good result—requiring unanimous juries for felony convictions—that probably disappointed part of the conservative base, just like upholding Obamacare or gay marriage. But it’s a setback they can live with for now.
Trump-era conservatives want this outcome too, more than what passed as “conservative” just a while ago. Why? It’s not that they care about fetuses (or human life in general), it’s that it puts women back “in their place.” This roughly want the evangelicals want it for as well, but for different reasons.
The “principled” conservative argument was that this was a decision that didn’t belong in the Constitution and that it grew out of the Court going out of its way to say we aren’t Nazis and so we control our reproduction as a liberty function, even though the more forward subjects were crime and punishment (forced sterilization) healthcare (birth control and abortion)—all of which at first belong to the states. You could make an argument forced sterilization violates cruel and unusual punishment and ignore the “substantive due process” part.
It’s a decent legal argument as far as it goes. Politically, kicking abortion back to the states would probably be popular overall since it would give people their policy preference wherever they are. But it’s a terrible policy not just for women, but for everyone and it won’t have the outcomes the evangelicals and MAGAs want, other than the short-term dopamine hit of “winning.”
Especially if Biden wins, the Supreme Court is going to start tearing things down. Unions and elections have already taken big hits. I suspect they will pause their march towards executive power depending on who is in office.
Anyway, we are all overloaded. I just want everyone to remember: Roe is probably not going to be the law of the land for very much longer and if we have any chance of stopping or reversing this takeover, we *must* have a Democratic president and senate.