Political grief can resemble personal grief, and what apparently is the close-to-final draft of the opinion overturning Roe v. Wade has produced that sense of a cataclysmic plunge. What has died, however, is not only or even primarily a principle of law. We did not win Roe and keep it alive for 50 years because one side wrote better briefs than the other. Nor is that why we lost it. Roe was the product of one powerful political movement, and its impending death will be the product of another. What died in Dobbs v. Jackson Women’s Health Organization is the last vestige of constitutional romanticism.
The abortion debates were never fundamentally about whether the Constitution allows for recognition of “privacy” as part of liberty but whether at least some choices of some women to delay or avoid motherhood or not increase the number of their children, and thereby better control their lives and futures, would be respected. That debate is not beginning again because it never ended.
Roe has been falsely accused of many things. It was not the worst or most poorly reasoned Supreme Court opinion ever written, not even close. It was not out of touch with the American people; the decision has had majority support in opinion polls from its beginning to what is apparently its end. It was not unworkable; millions of women have obtained safe and legal abortions since 1973. More recently, advances such as medication abortion are making the procedure safer, simpler, and even more manageable.
Bromides like “we have no Trump judges and no Obama judges” aside, at its core the law is profoundly political, not in a narrow partisan sense but because its lifeblood is the allocation of the power of some over others. In most cases, the resolution of who wins and who loses produces little in the way of social consequences. Even in many important cases, the ordinary protocols of judging, such as reasoning based on analogy, suffice and occasionally create space for creativity and wisdom. Judges are not infallible, but most whom I have known are persons of integrity who strive for both fairness and fidelity to law.
More than a hundred years ago, in a personal injury case in New York’s highest court, Judge Benjamin Cardozo reinterpreted the concept of causation to allow for consumers to sue automobile manufacturers when defects in the design or production of cars led to accidents. This was the beginning of product liability law, which shifted the cost of such harms from drivers and retailers to the corporations where the negligence had occurred. It was a turning point in American law, and it had nothing to do with the Constitution or the Supreme Court.
In some instances, exemplified dramatically by Roe, legal disputes entail stark asymmetries in power and deficits in democratic institutions. In decisions of constitutional dimension, the stakes can be huge, the impact tectonic, and the question of what the Constitution means, through interpretation of such principles as liberty and equal protection of law, can seem to have stakes as high as debates over scripture because it is so imbued with who we think we are as a nation.
For many countries, their Constitution’s promises are solely aspirational. But in the United States, we have a legal system that provides for enforcement of our constitutional ideals, even if only partially. No wonder important struggles such as that for racial justice entered the realm of judges. Indeed, one of the most important governance principles from Reconstruction is the availability of the federal courts to remedy infringements of basic rights.
This is how the American judiciary came to function as a quasi-political branch of government. Because that is the reality—and a reality that we want to preserve, not abandon—we need to change our understanding of law and politics to recognize that constitutional adjudication is, legitimately so, a blend of the two.
What the decision in Roe signaled was not a rogue form of judging but a particular shift in political power at a particular historical moment that moved seven Justices to expand the meaning of liberty to include one reality of women’s lives. It was causation, not mere correlation, that Roe happened when the post–World War II women’s movement had made extraordinary leaps in the effort to end the colonization of women’s bodies, with a range of reforms that included rape law and family law as well as the regulation of reproduction.
What has been toxic about Roe is not that it politicized law, as both conservatives and traditional liberals still claim, but that its defenders—to avoid that accusation—lapsed into a futile effort to deny that it redistributed power. The desire to invoke the imprimatur of law and the Supreme Court produced justifications for the decision, which were necessary in the real world of law and politics. (I did plenty of that myself.) But what too often got sacrificed or made secondary, what became increasingly impossible as a right-wing mobilization not only intensified but brilliantly commandeered Roe into its service, was a full-throated justification for its result. Most fundamentally, we should have framed Roe even more frequently than we did as a decision about women, rather than privacy or choice.
The wars over Roe have revealed the harm that results from perpetuating the pretense that the law concerning reproduction was ever about anything other than whose lives mattered and who would control whom. This pretense that arguments about law exist in their own autonomous realm obscured the linkage between anti-abortion organizing and a bigger conservative movement that extended beyond reproductive issues, promoting policies for shrinking social welfare, fueled by racist dog whistles.
The pretense has also been manifest in the cynical spectacle of faux neutrality that is the judicial confirmation process. For this, both political parties colluded in mutually assured deniability, seeking nominees who could profess a blank mental slate as to abortion (which, had it been authentic, should itself have been a disqualifier). The absence of a judicial philosophy with respect to constitutional rights should not be a job requirement for judges.
The charade about Roe did not produce a single Supreme Court justice whose views on the fundamental question of who should have the power to make abortion decisions we didn’t already know before the Dobbs case reached the court. Yes, the resulting Senate votes on nominees would have been openly “political,” but no more so than they were covertly or than what Justice Alito has written in Dobbs.
We need robust constitutionalism without the romanticism that has accompanied it. This does not mean abandoning the courts as a venue for that struggle. It is now typical of organizations like the ACLU, which decades ago engaged almost entirely in litigation, to select from a broad menu of advocacy methods, from video production to popular referenda on issues such as reinstating voting rights to persons released from prison.
The conservative takeover of the courts began in the 1980s, and that is also when the shift to multidimensional advocacy began for civil rights and social justice groups. Dobbs just reinforces how essential that approach will remain. For constitutional law, there will not be much forward movement until the Supreme Court changes its direction. And that’s about as political as it gets.