The Supreme Court Hears Dobbs

W ill the big fake cow them again?

In this instance, “them” is Chief Justice John Roberts and the Supreme Court he leads, in particular the Court’s newest conservative members, Justices Neil Gorsuch, Bret Kavanaugh, and Amy Coney Barrett. We could, however, be talking about any faction of well-meaning right-of-center Republicans, the type who consistently rationalize their way into solidifying the Left’s Fabian advances. Whether it’s out of some warped sense of duty to maintain “stability,” or the delusion that they are preserving the legitimacy of their institution, or a desire to “show that we can govern” by being collegial (an obligation that somehow never burdens progressives), they find a way to prioritize their craving for the progressive ruling class’s affection — however reliably unsatisfied it remains — over doing their jobs the way fidelity to the Constitution would demand.

The “big fake,” of course, is the prediction — the assurance — that following the Constitution will have immediate, apocalyptic consequences. So it is with Dobbs v. Jackson Women’s Health Organization, the most significant abortion case the Court has heard since Planned Parenthood v. Casey nearly 30 years ago. The Roberts Court, with its reputed supermajority of constitutional conservatives, heard oral arguments in Dobbs on Wednesday morning, and a ruling is expected at the end of the Court’s term in late June. The case demands that the Court grapple with its constitutionally illiterate and institutionally imperious rulings in Casey and Roe v. Wade (1973).

This time, the big fake is the assertion that if the Supreme Court “bans” abortion, the practice will be consigned to back-alley quacks and American women will revert to suppressed-caste status in American economic life.

It is the usual story. If Roberts failed to save Obamacare, tens of millions were going to be denied medical care. If Gorsuch, in Bostock v. Clayton County, did not rewrite Title VII into something the enacting Congress would not have recognized, gay and transgender Americans would have been cast into the darkness. If a baker’s dozen of Republican moderates had not thrown a lifeline to our flailing president and his unnecessary and irresponsibly costly infrastructure bill, America’s bridges, tunnels, and airports would have disintegrated.

None of these doomsaying predictions is ever remotely plausible. But the foreboding is enough to intimidate wobbly conservatives into “evolving” toward an “enlightened” statesmanship that elevates “our values” (i.e., the Left’s desires) over petty partisan politics (i.e., the desires of the saps who elect and appoint wobbly conservatives on the expectation that they will do in Washington what they say they will do before they get to Washington).

In reality, the Supreme Court has no power to “ban” abortion. If it renounces the jurisprudential malpractice that is Roe, the Court will simply be saying what has always been apparent: The Constitution has nothing to say about the procedure, neither mandating nor prohibiting access to it. Like most matters, it is left to the states to regulate.

In the narrowest sense, the Roe Court was profoundly wrong to create a fundamental federal “right” to abortion out of thin air. In a broader sense — and in particular for those who, like the chief justice, obsess over the Court’s reputation — the Court’s decision to transform itself into a rights-manufacturing super-legislature that could be pressured politically into giving the Left what could not be achieved democratically was indefensible. It has centralized and thus intensified the toxicity of our politics, damaging the judicial-confirmation process — and the notion of what a judge’s job is — perhaps beyond repair.

Let’s say the Supreme Court makes the correct ruling that progressives vehemently insist would cause the sky to fall, decreeing that Roe and thus Casey were wrongly decided. Let’s say the justices hold that the Constitution does not guarantee a right to kill the unborn up until some magic moment that medical advancement will continue to render arbitrary. What will happen?

Substantially, nothing will happen. That is why it’s a big fake. Blue states will enact highly permissive abortion laws. Red states will tightly regulate abortion to the point that it was available only as a dire measure when necessary to save the life of the mother. The vast majority of states in between will mirror what the American people seem generally to believe — abortion should be discouraged but not outlawed — and regulate accordingly. Since we are the richest, most mobile society in history, with a political class that would find ways to subsidize abortion for the needy regardless, no woman who wants an abortion will be unable to get one.

Life will go on mostly as before. The disappearance of Roe will barely be noticed. The federal courts will return to being what they should always have been on this matter of democratic self-determination: Irrelevant.

That’s what ought to happen, and what I hope will happen: The justices will tune out the demagogic noise, do their jobs, and realize that the hubbub will die down when it quickly becomes clear that, in fact, catastrophe has not struck.

Is that what will happen, though? I’m skeptical.

I would not have bet on Justice Gorsuch’s Bostock walk on the wild side in a million years. I am heartened by Ed Whelan’s reminder, in yesterday’s Wall Street Journal, that Chief Justice Roberts in 2010 wrote a concurring opinion (in Citizens United v. FEC) that seems tailor-made to reject a stare decisis-based reaffirmation of Roe and Casey. (Stare decisis is the doctrine of upholding even wrongly decided precedent to promote stability in the law.) But we’ve seen enough of the chief justice’s contortions over the years to learn that he strives to shape public perception of the Court as a collegial, non-partisan institution. He is not above shifting his positions for what he takes to be the greater good of narrowing decisions, side-stepping major issues, and landing on a consensus position that progressives can live with, or even celebrate.

The question is how much of the Court has that same impulse in Dobbs. My intuition is that Gorsuch will rightly reject Roe as indefensible constitutional law. But the Court’s center of gravity is the loose alliance of Roberts and Justice Elena Kagan, who has proved masterful at playing an ostensibly weak progressive hand.

If Roberts and Kagan coopt Justices Kavanaugh and Barrett into this heady alliance — and there have been worrisome signs that they could — the Court’s seemingly solid constitutional-conservative majority will no longer seem so solid. And given their confirmation vows to give Roe and Casey all the stare decisis weight they deserve (while being vague about exactly how much weight that might be), Kavanaugh and Barrett will be under enormous pressure to find a path to preserve the right to abortion invented by Roe, even if its undergirding is further dismantled, à la Casey (i.e., even if states are given marginally more discretion to overcome the Casey standard that forbids regulations that “unduly burden” abortion’s availability).

The problem with all this is that collegiality is properly the legislator’s, rather than the judge’s, game. In our system, interpreting the law is a rigorous logical discipline, which recognizes the Constitution’s preeminence. If the justices remember that and do their jobs, Roe will take its rightful place on history’s ash heap. But that’s a big “if.” Beware the big fake.