Overturning Roe v Wade
Is the US Supreme Court Just Getting Warmed Up?
Welcome to the Civic Way journal, our quick take on the relevance of breaking news to America’s future governance. The author, Bob Melville, is the founder of Civic Way, a nonprofit dedicated to good government, and a management consultant with over 45 years of experience improving public agencies.
In recent weeks, the leak of the draft majority opinion in the Mississippi abortion case, Dobbs v. Jackson Women's Health Organization, has dominated the headlines. The Justice Alito-drafted document signals the Supreme Court’s intent to invalidate Roe v. Wade next month and allow states a free hand in determining abortion access (or lack thereof).
The clamor over the draft opinion has come fast and furious. Seething charges from liberal columnists and Democratic politicians. Angry protests at the homes of individual justices. A Supreme Court Police report of a "significant increase in violent threats” and a Department of Homeland Security report of escalating threats against "reproductive healthcare personnel and facilities."
Assuming that the draft majority opinion prevails, why are we so astonished by the Court’s determination to overturn Roe v. Wade?
Afterall, reversing judicial precedent, while rare, has played a big role in the Court’s history. From 1789 the 2020, the Court reversed its constitutional precedents nearly 150 times. Some of its most notable rulings have been the product of precedent reversals. Brown v. Board of Education in 1954, Gideon v. Wainwright in 1963 and Obergefell v. Hodges in 2015, for instance. More recently, Justice Thomas’ cherished “Originalism” theory has been little more than a pretext for discarding vexing precedents.
And, as precedents go, Roe v. Wade was not unassailable. Scores of legal experts, including pro-choice advocates, have questioned the legal underpinnings of the 1973 Roe v. Wade ruling. It was based on an implicit privacy right that Justice Douglas called “older than the Bill of Rights,” rather than an expressed right like the equal protection clause. [In his concurring opinion, Justice Douglas, urged linking the ruling to the Ninth Amendment.] Given the broad range of opinions, the ruling’s multi-decade durability may be more surprising than its pending death.
There is little doubt that the Court will overturn Roe v Wade. In the wake of that decision, abortion access will be more uncertain and divisive than ever. And, while some frame the issue as one front in the eternal battle between good and evil, most Americans hold more nuanced views of abortion.
Unlike the Court’s majority, the rest of us have to think about what comes next. Which states will ban abortions and which will preserve abortion access? Which states will ban abortion pills? Which will prohibit contraception? Will men be held accountable? What social turmoil will be unleashed?
After taking on the abortion issue, what else does the Roberts Court have up its sleeve? What kinds of decisions are they poised to make after they overturn Roe v Wade? How will these decisions affect our lives? How will they impact our democracy?
The Court’s strategy is taking shape. Several established rights could face greater scrutiny. The right of local governments to enact gun controls (or enact other laws for that matter). The rights of legal immigrants to participate in American society. The rights of educators to determine how our children learn. The right to marry. And implicit rights like privacy rights.
The most jeopardized right—and the one right that ultimately underlies all others—is our right to a representative democracy (see Madison’s defense of our democracy in Federalist No. 14).
To what extent will the Court protect this right? Based on recent Court decisions, and the partisan makeup of the Court’s 6–3 majority, we would be foolish to expect anything more than hollow tributes to American democracy. The Court’s approach to democracy—and its foundational elements like campaign finance and gerrymandering—can be best described as laissez faire.
First, let’s take a look at the Court’s stance toward campaign financing. Over the past 15 years, despite strong public support for campaign finance regulation, the Court has rarely missed an opportunity to reject campaign finance limits. Invoking the First Amendment’s free speech clause, the Court has issued several rulings striking down campaign finance laws, especially the Bipartisan Campaign-Finance Reform Act (BCRA), more commonly known as the McCain-Feingold Act.
In its 2010 Citizens United v. Federal Election Commission (FEC) decision, the Court exploited the free speech clause to invalidate certain BCRA campaign spending controls. In doing so, it chose to deny the risks of political corruption and give wealthy groups the unfettered ability to buy access to elected officials. In later decisions (e.g., Austin v. FEC, Davis v. FEC, FEC v. Wisconsin Right to Life and McCutcheon v. FEC), the Court struck down other BCRA provisions, effectively freeing outside groups to spend unlimited funds on elections and avoid transparency.
This week, in FEC v. Ted Cruz for Senate, the Court struck down Section 304 of the BCRA which forbid campaigns from reimbursing candidates over $250,000 in personal campaign loans after Election Day. Section 304 was designed to prevent wealthy donors from buying more influence (by helping candidates repay loans made after Election Day). In his majority opinion, Chief Justice Roberts criticized the law as having the “impermissible objective of simply limiting the amount of money in politics” and “burden(ing) core political speech without proper justification.”
“The politician is happy; the donors are happy. The only loser is the public.”
– Justice Elena Kagan
We can predict with confidence that the Supreme Court’s 6-3 partisan majority will continue to do what it can to strengthen the grip of wealthy donors on political campaigns and candidates.
Second, the smart money suggests that the Court will continue to use its vast powers to undermine fair, competitive elections. Based on its track record, we can reasonably expect the Court to reinforce the ability of politicians to gerrymander their districts and choose their own voters.
One case stands out. In Rucho v. Common Cause (2019), the Supreme Court declined a perfect opportunity to discourage extreme partisan gerrymandering. In a 5-4 ruling involving Democratic and GOP state gerrymandering plans, the Court punted, holding that federal courts lacked the capacity to determine if election maps are too partisan. With this ruling, the Court effectively left partisan gerrymandering to prosper in states without independent districting commissions.
The Supreme Court’s approach to campaign finance and gerrymandering issues is both legally dubious and politically partisan. Overturning Roe v Wade is likely just one element of a broader strategy to remake America.
In our next essay, we will address an even more egregious ploy, an inventive legal doctrine to help state legislatures overturn elections.