“Will there be a nationwide Backlash?
The short answer: I don’t know . . . .”
I’m quoting myself above, from a blog post on December 29 of last year. In it my short answer got stretched out a bit.
Time for an update, now that Politico has surfaced a leaked draft SCOTUS decision that would decisively and fully reverse Roe, and the later Casey decision that upheld it.
But before plunging into the update, let me pause for a moment to pay tribute to the (as yet) unknown leaker:
All the reporters and pundits I’ve heard and read marvel at that person’s action, which is said to be essentially unprecedented in SCOTUS history.
My outsider’s guess is that she/he (I’ll call them Sheehy, a more dulcet pronoun) is most likely a law clerk, one of the chosen few who serve the various justices for a year each, at the presumed start of illustrious and handsomely-remunerated legal careers.
The decision draft is dated February 10. That suggests that Sheehy agonized over this action for ten weeks.
I wonder if Sheehy is familiar with Daniel Ellsberg, one of my generation’s heroes, who risked jail to copy and leak the super-secret Pentagon Papers in 1971. The Papers blew up the lies underlying the U. S. War in Vietnam, and helped lead to the disgrace and resignation of Richard Nixon. Sheehy’s action could be her cohort’s counterpart to Ellsberg’s witness. I have no doubt that Sam Alito and the other four signers will comb their columned chambers from ceiling to basement to flush out Sheehy’s identity. And in today’s surveillance culture, they have a good chance of finding out.
Will Sheehy too then face jail? Or will the SCOTUS-ites bundle the whistleblower out of town, lips locked shut with an iron NDA, to be forever unknown?
Personally I hope Sheehy gets good timing advice (and a top lawyer), and comes out at a midday press conference soon, to refocus the media spotlight back on what was disclosed. If Sheehy is a clerk, one career path will soon be decisively closed, but fame would be undying, and new career options will open.
Whatever happens, and whoever they are, Sheehy has my thanks and gratitude.
But back to the leaked decision. (The full text is at this link.) Here’s the section from my December post about backlash, which still seems relevant, and cited
“. . . two very smart women pundits whose work I take seriously, [who] made opposite predictions about this.
First, Jennifer Rubin, a Washington Post columnist.
For years she was reliably right wing. Trump changed all that. Rubin’s not exactly a born-again liberal now, but is vociferously pro-Roe v. Wade. And she thinks its overthrow would be a huge political boon to Democrats, writing:
[I]f Democrats needed reason to fire up the troops before the 2022 midterm elections, this might do it. The obviously partisan court will thrust the nation into a period of turmoil, chaos and outrage over new restrictions on women’s life choices, which Republicans will seek to cement in state laws.
Every Republican on the ballot for state legislator, governor, the House or the Senate will have to defend new intrusions on women’s autonomy, including in cases of rape and incest. Given the wide and deep support for abortion rights, Republicans may come to regret appointing religious ideologues to the court.”
Turmoil, chaos & outrage” eh?
Well, it sounds plausible. Roe has been law for almost 49 years. Will Americans simply accede to having it ripped away?
Perhaps. A pandemic-exhausted citizenry, even women, might just put up with Roe’s public evisceration. Doubtless there would be a round of rallies, with angry speeches & shaking of fists — but then after a few weeks, the ire could dissipate, and the public’s fickle attention drift to the next media shock or Covid spike. Hasn’t that already happened repeatedly, almost weekly, in the past few years?
Again, I don’t know.
Yet that’s what Megan McCardle was expecting. McCardle is a conservative writer, but of a thoughtful anti-Trump, business-oriented, Bloomberg stripe; she also does columns for the Washington Post.
And considering Roe’s demise, she told readers her study of polls & other measures of public sentiment suggests the response to it will likely be no more than a resigned shrug. McCardle wrote:
“[It] seems reasonable to assume, as many people do, that a Supreme Court ruling in the Mississippi case to overturn Roe v. Wade would result in a fierce electoral backlash from women belatedly awakened to the dangers of GOP rule.
In fact, there’s no real data to back up those assumptions. It’s true that women are more likely than men to identify as pro-choice and to say that abortion is an important factor in their voting decisions. But while the gender gap on abortion is real, it’s remarkably small — and arguably non-existent — when you drill down to the specifics beneath the “pro-choice” and “pro-life” labels.”
That is, McCardle contends that American women are not a sleeping tiger of pro-abortion backlash, but more a jumble, a herd of cats, nearly as divided about it as thinking males.
Post-Roe, she argues, controversy and political agitation will continue. But a pro-abortion tidal wave? Naaah.
Whose crystal ball is right? Take your pick. Both are knowledgeable and serious.
That was then.
This is now. The leaked draft has been affirmed as “authentic but not final” by the chief justice. And here is the draft’s money quote:
Stare decisis, the doctrine on which Casey’s controlling opinion was based, does not compel unending adherence to Roe’s abuse of judicial authority. Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.
It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. “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.” . . . That is what the Constitution and the rule of law demand.
It’s not hard to detect a career’s worth of accumulated spleen dripping from Alito’s words. His scorn also poured out on the three predecessor justices, Sandra Day O’Connor, Anthony Kennedy, and David Souter, who made up the bloc that kept Roe alive in the 1992 Casey decision.
The “Casey Three” argued in part, that reversing Roe, after 19 years and absent settled public demand, would be calamitous for the Supreme Court’s public credibility and institutional integrity. They’re worth quoting at some length:
In two circumstances, however, the Court would almost certainly fail to receive the benefit of the doubt in overruling prior cases. There is, first, a point beyond which frequent overruling would overtax the country’s belief in the Court’s good faith.
Despite the variety of reasons that may inform and justify a decision to overrule, we cannot forget that such a decision is usually perceived (and perceived correctly) as, at the least, a statement that a prior decision was wrong. There is a limit to the amount of error that can plausibly be imputed to prior courts. If that limit should be exceeded, disturbance of prior rulings would be taken as evidence that justifiable reexamination of principle had given way to drives for particular results in the short term. The legitimacy of the Court would fade with the frequency of its vacillation.
That first circumstance can be described as hypothetical; the second is to the point here and now. Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.
The Court is not asked to do this very often . . . . But when the Court does act in this way, its decision requires an equally rare precedential force to counter the inevitable efforts to overturn it and to thwart its implementation. Some of those efforts may be mere unprincipled emotional reactions; others may proceed from principles worthy of profound respect. But whatever the premises of opposition may be, only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure, and an unjustified repudiation of the principle on which the Court staked its authority in the first instance.
So to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court’s legitimacy beyond any serious question. . .
The country’s loss of confidence in the judiciary would be underscored by an equally certain and equally reasonable condemnation for another failing in overruling unnecessarily and under pressure. Some cost will be paid by anyone who approves or implements a constitutional decision where it is unpopular, or who refuses to work to undermine the decision or to force its reversal. The price may be criticism or ostracism, or it may be violence. An extra price will be paid by those who themselves disapprove of the decision’s results when viewed outside of constitutional terms, but who nevertheless struggle to accept it, because they respect the rule of law.
To all those who will be so tested by following, the Court implicitly undertakes to remain steadfast, lest in the end a price be paid for nothing. The promise of constancy, once given, binds its maker for as long as the power to stand by the decision survives and the understanding of the issue has not changed so fundamentally as to render the commitment obsolete.
From the obligation of this promise this Court cannot and should not assume any exemption when duty requires it to decide a case in conformance with the Constitution. A willing breach of it would be nothing less than a breach of faith, and no Court that broke its faith with the people could sensibly expect credit for principle in the decision by which it did that.
It is true that diminished legitimacy may be restored, but only slowly. Unlike the political branches, a Court thus weakened could not seek to regain its position with a new mandate from the voters, and even if the Court could somehow go to the polls, the loss of its principled character could not be retrieved by the casting of so many votes.
Like the character of an individual, the legitimacy of the Court must be earned over time. So, indeed, must be the character of a Nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals.
If the Court’s legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals. The Court’s concern with legitimacy is not for the sake of the Court but for the sake of the Nation to which it is responsible.
The Court’s duty in the present case is clear. In 1973, it confronted the already-divisive issue of governmental power to limit personal choice to undergo abortion, for which it provided a new resolution based on the due process guaranteed by the Fourteenth Amendment. Whether or not a new social consensus is developing on that issue, its divisiveness is no less today than in 1973, and pressure to overrule the decision, like pressure to retain it, has grown only more intense.
A decision to overrule Roe’s essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court’s legitimacy, and to the Nation’s commitment to the rule of law. It is therefore imperative to adhere to the essence of Roe’s original decision, and we do so today.
The draft decision revealed by Politico peremptorily dismisses these considerations. But to me they bring this issue of credibility and integrity very much to the fore. They also show that the stakes and implications of the case reach well beyond the issue of abortion policy.
Alito tries to head off this concern:
And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.
Do I believe him?
I emphatically do not. I’m no lawyer, but it is enough for me to recall similar empty assurances in Bush v. Gore, the evisceration of the Voting Rights act, and numerous other cases. I’m especially alarmed by the growing legal crusade against LGBT rights, which looks aimed squarely at Obergefell and same sex marriage. Plus affirmative action, union rights, and much more are on the rightwing judicial target list.
Nevertheless, I’m not going to press my other legal opinions here. The main question now is the one I started with: what will the public impact and reaction be to what was looming in December, but is now breaking on our heads?
A tide of backlash? Or acceptance of defeat and “moving on”?
I still don’t know.
But I think we will soon find out.