The Supreme Court’s decision overturning Roe vs. Wade, allowing state governments to force women into childbirth, is the result of decades of right-wing political advocacy, organizing and electoral victory. It is also only the beginning of the Court’s mission to reshape all of American society according to conservative demands, without fear of public opposition.
The opinion of Judge Samuel Alito in Dobbs vs. Jackson contains a classic Alito warning – an explicit denial of the logical implications of his stated position. In this case, Alito states that “nothing in this opinion should be understood as calling into question precedents which do not concern abortion”, even if he maintains that when it comes to rights “not mentioned in the Constitution”, only those “deeply rooted in the history and tradition of this Nation” are protected. If you are wondering who decides what rights can be so described, you are on the right track.
It will not stop with the determination, as the dissenters write, that states can decide that “from the very moment of fertilization, a woman has no rights, strictly speaking.” The conservative movement’s control of the Supreme Court, its success in skewing the electoral process in their favor through vote restrictions and gerrymandering, and the likely collapse of the Democrats in future terms have bolstered their confidence that they can radically reshape American society on their terms without loss of power.
As noted by the three Democrat-appointed justices in their Dobbs dissent, more constitutional rights are now on the chopping block. “Either the majority does not really believe in its own reasoning. Or if so, all rights that do not have a history dating back to the mid-19th century are precarious,” the dissidents wrote. “Either the mass of majority opinion is hypocrisy or additional constitutional rights are threatened. It’s one or the other. It seems to be the last: with his agreement, Judge Clarence Thomas writes that the precedents establishing access to contraception, legalizing same-sex marriage and repealing anti-sodomy laws should be “re-examined”.
Apart from the record of insincerity of Alito himself and other conservative justices, the reason not to trust his warning is that the Supreme Court has become an institution whose main role is to impose a vision of the right of American society to the rest of the world. country. The main vehicle of the Conservative majority for this imposition is a presentist historical analysis who takes no matter positions define right-wing cultural and political identity at a given time and affirms them as essential aspects of American law since the founding, and therefore mandatory. Conservatives have long attacked the left for supporting “living constitutionalism,” which they say renders the law arbitrary and meaningless. But the approach of the current majority is itself a kind of Undead constitutionalism – one in which the precepts of the Constitution change retrospectively with whatever Fox News is furious about. The legal outcomes favored by the American right today conveniently turn out to be what the Founding Fathers wanted all along.
The 6-3 majority removed any appetite for caution or restraint, and the judges’ lifetime appointments mean they will never have to face an angry electorate that could strip them of their power. It also made their approach to the law lazy, clumsy and malevolent, and made the undead constitutionalism of right-wing judges all the more apparent.
Many recent decisions of the Court, even before Dobbs, demonstrated. In the case involving the Biden administration’s vaccination mandate for employers, conservative justices ignored the explicit text of a federal law authorizing the government to issue emergency regulations governing “toxic substances or agents” on the workplace, and used soft anti-vax arguments that had only become prominent in conservative media since the start of the coronavirus pandemic. As part of its rationale, the Majority wrote that “in its half century of existence” the Occupational Safety and Health Administration “has never before enacted broad public health regulations of this type”, which is true, because during this period there had not been a global pandemic that killed more than one million Americans.
In their ruling earlier this week overturn restrictions on the concealed carry of firearms in New York, right-wing justices ignored historical examples of gun regulations in order to argue that such regulations – not just New York’s – were presumptively unconstitutional. The ruling was a significant escalation in the Court’s gun rights case law from 2008 Heller decision, which found an individual constitutional right to own a firearm. In the most recent ruling, Thomas wrote that only restrictions “in accordance with the historical tradition of gun regulation in this country” are constitutional, but he did so ignoring, as the author Saul Cornell points out, a centuries-old history of tight gun regulation in densely populated areas. This folder is irrelevant. Restrictions deemed to be in keeping with tradition will be regardless of the current right-wing consensus.
With his consent in this matter, Alito sneered, “How does dissent explain that one of the mass shootings near the top of its list took place in Buffalo? The New York law at issue in this case obviously did not stop this author. The logic of the assertion suggests that laws against murder are useless because murderers continue to exist; it is a quality of reasoning that could come from a fifth grader. The argument is by no means a legal argument, just a paraphrase of the culture war chatter you hear in the right-wing media – which has a far greater influence on the majority than the law or the Constitution. It’s clear that Alito doesn’t think anti-abortion laws are equally unnecessary, even though abortions will still continue.
A few weeks ago, the Supreme Court temporarily blocked by a single vote a Texas law requiring social media companies to host content they do not want to host. This law is a violation of freedom of expression in textbooks; but the right’s purported commitment to fundamental freedoms has been overtaken by the belief that its First Amendment rights are violated by the existence of social media platforms that have moderation policies, which are essentially all of them. As such, Alito suggested in his dissent that these platforms in fact did not have the First Amendment right to engage in editorial discretion. Why? This is something conservatives on the internet complain a lot about, so neither the explicit text of the First Amendment nor the Court’s previous case law on company talk question.
These are recent examples, but far from being the only ones. In 2006, a Republican president signed an extension to the Voting Rights Act. In 2013, amid the backlash from the Obama presidency, right-wing justices ruled that the the law was a “racial right” and could be overridden on the basis of the “equal sovereignty” of the states – a concept that does not appear anywhere in the Constitution. The Fifteenth Amendment banning racial discrimination in voting explicitly authorizes such legislation, and its explicit purpose was to prevent the kind of racially discriminatory voting systems that the Roberts Court has repeatedly accepted.
The decision annulling deer does not escape these political and ideological identity fluctuations. The abortion rights dispute was once again ideologically charged and less polarized by party affiliation. A majority of the judges who agreed with the opinions in deer and Casey were nominated by Republican presidents. Being anti-abortion has become a staple of conservative politics over the decades; the level of ideological unanimity and discipline on abortion in today’s GOP has not always existed. Although a much longer process than the previous examples, reversing deer results less from the partisan composition of elected officials than from the ideological evolution of the Republican Party and the Conservative movement.
Shortly after the court’s decision in the gun rights case, Neal Katyal, the former acting solicitor general for the Obama administration, wrote“It’s going to be very weird if the Supreme Court ends a constitutional right to get an abortion next week, saying it should be up to the states to decide, right after it just imposed a constitutional right concealed carry of firearms, saying that it cannot be left to states to decide.
Well, no, it’s only weird if you assume that the intent of the right-wing majority is to consistently apply legal principles rather than translate right-wing cultural identity into law. This is the purpose of the biased historical analysis of right-wing judges: to present the discrepancies in the rights they defend as inherent in the Constitution rather than the product of their own undead constitutionalism.
I am not saying that these positions are insincere. Rather, the goal of this undead constitutionalism is to present contemporary right-wing positions on consequential issues as eternal and constant, and thus the only legitimate interpretations, when entirely malleable and dependent on shifts in political identity. conservative. The majority’s supposed originalism is a way of asserting that new legal interpretations based on the grudges of the current right are what the Constitution has always demanded. Each time these grievances change, the interpretations change with them, even as the judges re-trace through history to uphold ideological conclusions they would never question even if they couldn’t find them. This is ultimately why no right that Americans currently possess is immune from this Court. Decisions about which rights survive and which do not depend heavily on what it means to be conservative at the time. There will always be new right-wing grievances to be sweetened by judicial decree, vindicated by new abuses in constitutional history.
The fundamental conservative belief about the culture war is that there is a real America which is conservative and a usurping America which is liberal. It is not historical research, nor legal analysis, which is the main means of constitutional interpretation for its current majority. And while the judges will both claim and insist otherwise, the public need not pander to their imperious illusions. They should take the vow of right-wing judges that other constitutional rights are safe for precisely what they are worth, which is absolutely nothing.
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