Two events occurred Monday night — one historic, the other rather insignificant — which placed an unflattering spotlight on the Supreme Court of the United States.
The historic event was that Politico published an unprecedented leak of a draft majority opinion, by Justice Samuel Alito, which would overrule Roe v. Wade and permit state lawmakers to ban abortion in its entirety in the US. Alito’s draft opinion is not the Court’s final word on this case, Dobbs v. Jackson Women’s Health Organization, but the leaked opinion is the latest in a long list of signs that Roe may be in its final days.
The other event that also occurred last night is that I sent two tweets. One praised whoever leaked Alito’s opinion for disrupting an institution that, as I have written about many times in many forums, including my first book, has historically been a malign force within the United States. And a second celebrated the leak for the distrust it might foster in such a malign institution.
Seriously, shout out to whoever the hero was within the Supreme Court who said “fuck it! Let’s burn this place down.”
— Ian Millhiser (@imillhiser) May 3, 2022
The former tweet was phrased provocatively, and it attracted some attention from those on the right, including Sen. Ted Cruz (R-TX). So let me clarify that I do not advocate arson as a solution to the Republican Party’s capture of the Supreme Court. I metaphorically compared the leak of Alito’s opinion to lighting the Court on fire because, as Chief Justice John Roberts noted in his statement on the leak, the Court has extraordinarily strong norms of confidentiality that it zealously protects.
The fact that someone inside the Court’s very small circle of trust apparently decided to leak a draft opinion is likely to be perceived by the justices, as SCOTUSBlog tweeted out Monday night, as “the gravest, most unforgivable sin.”
To this I say, “good.” If the Court does what Alito proposed in his draft opinion, and overrules Roe v. Wade, that decision will be the culmination of a decades-long effort by Republicans to capture the institution and use it, not just to undercut abortion rights but also to implement an unpopular agenda they cannot implement through the democratic process.
And the Court’s Republican majority hasn’t simply handed the Republican Party substantive policy victories. It is systematically dismantling voting rights protections that make it possible for every voter to have an equal voice, and for every political party to compete fairly for control of the United States government. Justice Alito, the author of the draft opinion overturning Roe, is also the author of two important decisions dismantling much of the Voting Rights Act.
This behavior, moreover, is consistent with the history of an institution that once blessed slavery and described Black people as “beings of an inferior order.” It is consistent with the Court’s history of union-busting, of supporting racial segregation, and of upholding concentration camps.
Moreover, while the present Court is unusually conservative, the judiciary as an institution has an inherent conservative bias. Courts have a great deal of power to strike down programs created by elected officials, but little ability to build such programs from the ground up. Thus, when an anti-governmental political movement controls the judiciary, it will likely be able to exploit that control to great effect. But when a more left-leaning movement controls the courts, it is likely to find judicial power to be an ineffective tool.
The Court, in other words, simply does not deserve the reverence it still enjoys in much of American society, and especially from the legal profession. For nearly all of its history, it’s been a reactionary institution, a political one that serves the interests of the already powerful at the expense of the most vulnerable. And it currently appears to be reverting to that historic mean.
Alito wants abortion supporters to play a rigged game
There have only been three justices in American history who were appointed by a president who lost the popular vote, and who were confirmed by a bloc of senators who represent less than half the country. All three of them sit on the Supreme Court right now, and all three were appointed by Donald Trump.
Indeed, if not for anti-democratic institutions such as the Senate and the Electoral College, it’s likely that Democrats would control a majority of the seats on the Supreme Court, and a decision overruling Roe would not be on the table.
So it is ironic — for that reason, and others — that Alito’s draft opinion overruling Roe leans heavily on appeals to democracy. Quoting from an opinion by the late Justice Antonin Scalia, Alito writes that “the permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”
If Alito truly wants to put the question of whether pregnant individuals have a right to terminate that pregnancy up to a free and fair democratic process, polling indicates that liberals could probably win that fight on a national level.
Nearly three in five Americans describe themselves as pro-choice.
By a 22-point margin, more Americans identify as pro-choice (58%) than pro-life (36%), including 3 in 4 Democrats (76%), a majority of Independents (56%) and more than 1 in 3 Republicans (37%). pic.twitter.com/YqzzJ0Q4sQ
— Navigator Research (@NavigatorSurvey) April 26, 2022
In fairness, polling on abortion often misses the nuances of public opinion. Many polls, for example, allow respondents to say that they believe that abortion should be legal “under certain circumstances” or in “most cases,” leaving anyone who reads those polls to speculate under which specific circumstances people think that abortion should be legal.
Perhaps the best evidence that proponents of legal abortion could win a fair political fight, however, is the Supreme Court’s own polling. After the Court allowed a strict anti-abortion law to take effect in Texas last fall, multiple polls found the Supreme Court’s approval rating at its lowest point ever recorded.
But public opinion may not matter much in the coming political fight over abortion, because Alito and his fellow Republican justices have spent the past decade placing a thumb on the scales of democracy — making our system even less democratic than one that already features the Electoral College and a malapportioned Senate.
Alito authored two opinions and joined a third that, when combined, almost completely neutralize the Voting Rights Act, the landmark legislation that took power away from Jim Crow and ensured that every American would be able to vote, regardless of their race.
Similarly, the Court’s Republican majority held in Rucho v. Common Cause (2019) that federal courts will do nothing to stop partisan gerrymandering. Alito is also one of the Court’s most outspoken proponents of the “independent state legislature doctrine,” a doctrine that, in its strongest form, would give gerrymandered Republican legislatures nearly limitless power to determine how federal elections are conducted in their state — even if those gerrymandered legislatures violate their state constitution.
One of the most troubling aspects of this Court’s jurisprudence is that it often seems to apply one set of rules to Democrats and a different, more permissive set of rules to Republicans. Last February, for example, Alito voted with four of his fellow Republicans to reinstate an Alabama congressional map that a lower court determined to be an unconstitutional racial gerrymander.
In blocking the lower court’s order, Alito joined an opinion arguing that the lower court’s decision was wrong because it was handed down too close to the next election.
But then, in late March, the Court enjoined Wisconsin’s state legislative maps, due to concerns that those maps may give too much political power to Black people. March is, of course, closer to the next Election Day than February. So it is difficult to square the March decision with the approach Alito endorsed in February — though it is notable that the March decision by the Supreme Court benefited the Republican Party, while the previous decision was likely to benefit Democrats.
I could list more examples of how this Court, often relying on novel legal reasoning, has advanced the Republican Party’s substantive agenda — on areas as diverse as religion, vaccination, and the right of workers to organize. But really, every issue pales in importance to the right to vote.
If this right is not protected, then liberals are truly defenseless — even when they enjoy overwhelming majority support.
The Court’s current behavior is consistent with its history
In Marbury v. Madison (1803), the Supreme Court held that it has the power to strike down federal laws. But the actual issue at stake in Marbury — whether a single individual named to a low-ranking federal job was entitled to that appointment — was insignificant. And, after Marbury, the Court’s power to strike down federal laws lay dormant until the 1850s.
Then came Dred Scott v. Sandford (1857), the pro-slavery decision describing Black people as “beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.” Dred Scott, the Court’s very first opinion striking down a significant federal law, went after the Missouri Compromise’s provisions limiting the scope of slavery.
It’s not surprising that an institution made up entirely of elite lawyers, who are immune from political accountability and cannot be fired, tends to protect people who are already powerful and cast a much more skeptical eye on people who are marginalized because of their race, gender, or class. Dred Scott is widely recognized as the worst decision in the Court’s history, but it began a nearly century-long trend of Supreme Court decisions preserving white supremacy and relegating workers into destitution — a history that is glossed over in most American civics classes.
The American people ratified three constitutional amendments — the 13th, 14th, and 15th — to eradicate Dred Scott and ensure that Black Americans would enjoy, in the 14th Amendment’s words, all of the “privileges or immunities of citizens of the United States.”
But then the Court spent the next three decades largely dismantling these three amendments.
Just 10 years after the Civil War, the Supreme Court handed down United States v. Cruikshank (1875), a decision favoring a white supremacist mob that armed itself with guns and cannons to kill a rival Black militia defending its right to self-governance. Black people, the Court held in Cruikshank, “must look to the States” to protect civil rights such as the right to peacefully assemble — a decision that should send a chill down the spine of anyone familiar with the history of the Jim Crow South.
The culmination of this age of white supremacist jurisprudence was Plessy v. Ferguson (1896), which blessed the idea of “separate but equal.” Plessy remained good law for nearly six decades after it was decided.
After decisions like Plessy effectively dismantled the Reconstruction Amendments’ promise of racial equality, the Court spent the next 40 years transforming the 14th Amendment into a bludgeon to be used against labor. This was the age of decisions like Lochner v. New York (1905), which struck down a New York law preventing bakery owners from overworking their workers. It was also the age of decisions like Adkins v. Children’s Hospital (1923), which struck down minimum wage laws, and Adair v. United States (1908), which prohibited lawmakers from protecting the right to unionize.
The logic of decisions like Lochner is that the 14th Amendment’s language providing that no state may “deprive any person of life, liberty, or property, without due process of law” created a “right to contract.” And that this supposed right prohibited the government from invalidating exploitative labor contracts that forced workers to labor for long hours with little pay.
As Alito notes in his draft opinion overruling Roe, the Roe opinion did rely on a similar methodology to Lochner. It found the right to an abortion to also be implicit in the 14th Amendment’s due process clause.
For what it’s worth, I actually find this portion of Alito’s opinion persuasive. I’ve argued that the Roe opinion should have been rooted in the constitutional right to gender equality — what the late Justice Ruth Bader Ginsburg once described as the “opportunity women will have to participate as men’s full partners in the nation’s social, political, and economic life” — and not the extraordinarily vague and easily manipulated language of the due process clause.
Indeed, one of the most striking things about the Court’s Lochner-era jurisprudence is how willing the justices were to manipulate legal doctrines — applying one doctrine in one case, then ignoring it when it was likely to benefit a party that they did not want to prevail.
In Hammer v. Dagenhart (1918), for example, the Supreme Court struck down a federal law that prohibited goods produced by child labor from traveling across state lines. The reason Congress structured this ban on child labor in such an unusual way is because the Supreme Court had repeatedly held prior to Dagenhart that Congress could ban products from traveling in interstate commerce — among other things, the Court upheld a law prohibiting lottery tickets from traveling across state lines in Champion v. Ames (1903).
But the rule announced in Champion and similar cases was brushed aside once Congress decided to use its lawful authority to protect workers.
The Court also did not exactly cover itself in glory after President Franklin Roosevelt filled it with New Dealers who rejected decisions like Lochner and Hammer. One of the most significant Supreme Court decisions of the Roosevelt era, for example, was Korematsu v. United States (1944), the decision holding that Japanese Americans could be forced into concentration camps during World War II, for the sin of having the wrong ancestors.
The point is that decisions like Alito’s draft Dobbs opinion, which would commandeer the bodies of millions of Americans — or decisions dismantling the Voting Rights Act — are entirely consistent with the Court’s history as defender of traditional hierarchies. Alito is not an outlier in the Court’s history. He is quite representative of the justices who came before him.
The judiciary is structurally biased in favor of conservatives
In offering this critique of the Supreme Court, I will acknowledge that the Court’s history has not been an unbroken string of reactionary decisions dashing the hopes of liberalism. The Court’s marriage equality decision in Obergefell v. Hodges (2015), for example, was a real victory for liberals — although, as several commentators have noted, there is language in Alito’s draft Dobbs opinion suggesting that, if Roe falls, LGBTQ+ rights could be next.
But the Court’s ability to spearhead progressive change that does not, like marriage equality, enjoy broad popular support is quite limited. The seminal work warning of the heavy constraints on the Court’s ability to effect such change is Gerald Rosenberg’s The Hollow Hope, which argues that “courts lack the tools to readily develop appropriate policies and implement decisions ordering significant social reform,” at least when those reforms aren’t also supported by elected officials.
This constraint on the judiciary’s ability to effect progressive change was most apparent in the aftermath of perhaps the Court’s most celebrated decision: Brown v. Board of Education (1954).
Brown triggered “massive resistance” from white supremacists, especially in the Deep South. As Harvard legal historian Michael Klarman has documented, five years after Brown, only 40 of North Carolina’s 300,000 Black students attended an integrated school. Six years after Brown, only 42 of Nashville’s 12,000 Black students were integrated. A decade after Brown, only 1 in 85 African American students in the South attended an integrated school.
The courts simply lacked the institutional capacity to implement a school desegregation decision that Southern states were determined to resist. Among other things, when a school district refused to integrate, the only way to obtain a court order mandating desegregation was for a Black family to file a lawsuit against it. But terrorist groups like the Ku Klux Klan used the very real threat of violence to ensure few lawsuits were filed.
No one dared to file such a lawsuit seeking to integrate a Mississippi grade school, for example, until 1963.
Indeed, much of the South did not really begin to integrate until Congress passed the Civil Rights Act of 1964, which allowed the Justice Department to sue segregated schools, and which allowed federal officials to withhold funding from schools that refused to integrate. Within two years after this act became law, the number of Southern Black students attending integrated schools increased fivefold. By 1973, 90 percent of these students were desegregated.
Rosenberg’s most depressing conclusion is that, while liberal judges are severely constrained in their ability to effect progressive change, reactionary judges have tremendous ability to hold back such change. “Studies of the role of the courts in the late nineteenth and early twentieth centuries,” Rosenberg writes, “ show that courts can effectively block significant social reform.”
And, while such reactionary decisions may eventually fall if there is a sustained political effort to overrule them, this process can take a very long time. Dagenhart was decided in 1918. The Court did not overrule it, and thus permit Congress to ban child labor, until 1941.
There are several structural reasons courts are a stronger ally for conservative movements than they are for progressive ones. For starters, in most constitutional cases courts only have the power to strike down a law — that is, to destroy an edifice that the legislature has built. The Supreme Court could repeal Obamacare, but it couldn’t have created the Affordable Care Act’s complex array of government-run marketplaces, subsidies, and mandates.
Litigation, in other words, is a far more potent tool in the hands of an anti-governmental movement than it is in the hands of one seeking to build a more robust regulatory and welfare state. It’s hard to cure poverty when your only tool is a bomb.
So, to summarize my argument, the judiciary, for reasons laid out by Rosenberg and others, structurally favors conservatives. People who want to dismantle government programs can accomplish far more, when they control the courts, than people who want to build up those programs. And, as the Court’s history shows, when conservatives do control the Court, they use their power to devastating effect.
This alone is a reason for liberals, small-d democrats, large-D Democrats, and marginalized groups more broadly, to take a more critical eye to the courts. And the judiciary’s structural conservatism is augmented by the fact that, in the United States, institutions like the Electoral College and Senate malapportionment give Republicans a huge leg up in the battle for control of the judiciary.
Of course I do not believe that we should literally light the Supreme Court of the United States on fire, but I do believe that diminished public trust in the Court is a good thing. This institution has not served the American people well, and it’s time to start treating it that way.