As we mark the 50th anniversary of Roe v. Wade, I note that
the supporters of Dobbs v. Jackson Women’s Health Organization,
the decision revoking the constitutional right to an abortion, have sought to
draw celebratory parallels between that decision and Brown v. Board of
Education. This was the case that recognized the principle that “separate
but equal” treatment of Blacks and Whites in segregated schools was
incompatible with the Equal Protection Clause of the Fourteenth Amendment. Like
Brown, Dobbs overturned a foundational precedent that had been in
force for decades, and according to anti-abortion proponents, established an important
right – the right to fetal life -- denied by the discredited precedent. The Dobbs
opinion itself referenced Brown a number of times, and Mitch McConnell said
of the Dobbs decision: “The Court has corrected a terrible legal and
moral error, like when Brown v. Board overruled Plessy v. Ferguson.”
But the differences between Brown and Dobbs
far overshadow their similarities. There is the much-discussed issue of how these
decisions used history. The Brown court refused to be bound by the views
of those who ratified the Fourteenth Amendment in 1868. The vast majority of
those legislators almost certainly would have approved of racially segregated
schools. In contrast, the Dobbs court found the fact that abortion was
widely criminalized in 1868 to be decisive. Had Brown followed the Dobbs
court’s method of constitutional reasoning, it would have upheld Jim Crow
schools.
But I would like to focus on another critical difference –
the conditions under which the precedent was overturned. In Brown, the
court was undoubtedly influenced by the changing attitudes toward race in the
US. Having just fought a war against an enemy whose core ideology was extreme
racism, and in which Black Americans served valiantly, the post-war period saw
a reevaluation of racial attitudes. According to polls undertaken by the
National Opinion Research Center, in 1942, only 42 percent of people believed
that Blacks were the intellectual equal of Whites. By 1956 that number had risen to 78 percent. In 1942, 30 per cent believed that schools should be
integrated; the percentage rose to just under 50 in 1956, and to over 60 per
cent by the 1960s. The Brown court was not only influenced by changing
attitudes toward race, but as these statistics suggest, helped to further
catalyze that change by putting its imprimatur on the doctrine of racial
equality. Reality has a way of intruding, however belatedly, on myth, and the
myth of black inferiority gradually gave way to the reality of black equality.
By contrast, views on abortion remained fairly constant in
the 30 years prior to the Dobbs decision. According to the Pew Research
Center, 61% of those polled in 2022 believed that abortion should be legal in
all or most cases, about the same percentage as those polled in 1995, with some
fluctuation in between. Unlike racial attitudes, there was no corresponding shift in
attitude away from abortion rights. The differences between a 15 week old fetus
and a newborn infant are significant, physiologically and neurologically. One
can argue about the moral significance of those differences, but nothing we
have learned about the science of fetal development since the abortion right
was recognized in Roe has been cause to reevaluate one's position on
abortion.
What made Dobbs possible was not shifting societal
attitudes on abortion but a decades-long campaign on the part of right-wing
politicians and their attorney counterparts to appoint antiabortion judges to
the United States Supreme Court. As has been much discussed, the Federalist
Society, since its inception in 1982, has played a preeminent role in choosing
federal judges. After their initial disappointments in the appointments of
moderate Sandra Day O’Connor, sometimes moderate Anthony Kennedy and the
downright liberal David Souter, the Society developed a sure-fire vetting
process, generally recruiting from among their own ranks. Since the appointment
of Clarence Thomas by George H.W. Bush in 1991, no Republican president has
appointed anyone not affiliated with and/or blessed by the Federalist Society.
When it came to the Trump presidency, the predominance of
the Federalist Society in choosing judges was on full view. In exchange for
social and religious conservatives overlooking Trump’s many personal failings, he
outsourced the vetting and selection of judicial candidates to the Society.
Aided by Mitch McConnell’s infamous constitutional hardball, Trump got an
appointment that should have been President Obama’s, then a second appointment
with Justice Kennedy’s strategic resignation, and a third with Ruth Bader
Ginsburg’s passing on the eve of the 2020 election to cement the Dobbs
majority. So, the success in overturning Roe, unlike the success of Brown,
is not a story of society’s evolution on the abortion issue, but of consummate
political engineering to change the high court's personnel.
It is said that the process of judicial decision making is
fundamentally different from the politics, that judges must at least appear to
be interpreting rather than making law. But it is clear that the overturning of
Roe did not really occur in the judicial chambers of the Supreme Court,
but upstream, in the precincts of the Federalist Society and the decisions of Republican
presidents and senators. And unlike Brown, a decision that is now almost
universally accepted and praised, it is most unlikely that Dobbs, a
decision that never even acknowledged the enormous burden that abortion bans
place on women’s liberty, will ever enjoy such widespread acceptance. Its
legacy instead is likely to be the further politicization of the High Court and
degradation of its reputation.
Given the right-wing playbook of exerting political power to
appoint ideological judges, there likely will come a time when the Democrats
will be in a position to answer politics with politics in the form of
increasing the number of members on the High Court or requiring that Supreme
Court justices are rotated out of the court after a term of years. Whatever
form it takes, Democrats will follow the path laid out by Republicans that the
key to success in the Supreme Court is to choose, by whatever means are
expedient, the right Supreme Court justices.
Mitch McConnel Quote: https://www.cnn.com/2022/07/09/opinions/scotus-dobbs-faulty-comparison-brown-snyder/index.html
https://www.norc.org/PDFs/publications/NORCRpt_119.pdf
https://www.pewresearch.org/religion/fact-sheet/public-opinion-on-abortion/
https://slate.com/news-and-politics/2017/01/how-the-federalist-society-became-the-de-facto-selector-of-republican-supreme-court-justices.html
Robert Katz served as a senior attorney and supervising
attorney at the California Supreme Court from 1993-2018. Before that he was in
private practice representing public agencies, and worked as a newspaper
reporter covering local government in Santa Cruz County.
Subscribe to this blog email robkatz46@gmail.com.
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