The Crossover Podcast (Thursday 19 May 2022): Speaking About the Supreme Court Leak, Dobbs v. Jackson Women's Health Organization, and the End of Roe-Casey

 

 I was delighted to be asked to chat with the marvelous Ricardo Kometar about the leak of the draft opinion in Dobbs v. Jackson Women's Health Organization for his excellent podcast: The Crossover Podcast.

Both Dobbs and its leak provide a fascinating glimpse at the tremendous transformations occurring at the heart of the liberal democratic constitutionalist machinery so finely developed and cared for by elites since the early part of the 20th century. The Dobbs leak is particularly significant with respect to (1) the substance of the opinion, overturning the Roe-Casey-Whole Women's Health line of cases that had provided some sort protection of a woman's right-power-authority to terminate a pregnancy, even though that protection had been always disputed at the edges; and (2) the leak itself, for what it tells us about the state of institutional decrepitude, both as to the event itself and as to the enormous infatuation cultivated among the masses by those with the power to do so. Together they remind us of the problem that the Supreme Court has represented within our constitutional system almost from the first decades of the Republic (my take here, here, and here).   That last sentiment, of course, is heresy in some quarters, one that was thought to have been stamped out among the ruling collectives with the end of the 2nd World War and the rise of the techno-bureaucratic administrator classes in both business and government. But the heresy is fickle--where the court has pleased its most intimate stakeholders (elite lawyers, academics, and the administrative.-bureaucratic apparatus and its retainers) the functioning of the court and its pronouncements were treated as almost divinely inspired (considered here).  When there was disagreement then the court became horned devils propounding error that would undo the Republic. With the former the narrative of the indispensability of a vigorous court with broad interpretative authority was advanced; with the later, the narrative of erroneous and corrupted officials (in this case judges stepping pout of their role) was advanced. 

Pix Credit: The Puzzling Search for Perfect Randomness

Everyone, or at least anyone worth acknowledging, has been or professed to be passionate about embracing a narrative, emphasized by the named author of Dobbs, that the search for the "right" answer is both a duty of the judge and the apex principle on which constitutional interpretation rests. Justice Alito instructs his readers (Dobbs draft slip op 35-36) "But when it comes to the interpretation of the Constitution—the 'great charter of our liberties,' which was meant 'to endure through a long lapse of ages,' [Martin v. Hunter's Lessee] —we place a high value on having the matter 'settled right.'” That is a dangerous and misguided proposition at variance with the constitutional traditions of the Republic and a respect for the role of the judge  operating within and not above law.  I have never much believed in this principle, nor its narrative, nor its supposition that the Common law and it ideology on which the character and role of this Republic's judges were derived, was ever much preoccupied with perfection. There are "just answers", or "answers that comport with a reasonable reading of text or intent  or the reasoning of prior generations of judges," or "fair answers," or "ideologically driven answers," or even "answers that build collective meaning into words", or "answers that are faithful to a specific perspective of values." But semiotics reminds us that one can never give the correct answer even when one strives for the just one within the constraints of text and tradition.  It is no surprise, then, that what becomes most in cases like Dobbs is not its jurisprudence but its psychology; and text serves merely as the memorialization of an enforced change in communal meaning making in the serve of something other than text itself. What is "right" then becomes something more intimately connected to the imposition of a "right meaning" rather than a "right answer" in a context in which meaning is not itself malleable.

I wrote a short essay about this once:

Americans have been obsessed about the mechanics of perfectibility. Perfectibility is built into the constitutive documents of the American Republic. The expression of that perfection is Law, and Government provides the means. The mechanics of perfectibility lies in philosophy and theology. Through these mechanics Americans can discern the spirit of perfection - as God or as the genius of the American community made manifest. The essay considers these notions in the context of two cases, Swift v. Tyson (1842) and Erie Railroad Co. v. Tomkins (1938), which provide both the antipodes of American conceptions of the sources and hierarchy of law, and also suggest the mechanics of a mandatory perfectibility in American. But the judge is not the only intermediary between perfection and its expression in law. The essay suggests the way the political branches also seek the role of privileged (and uniquely privileged) intermediaries between the people and perfection. The essay ends with a consideration of the value of the theology of faith and reason in the elaboration of American jurisprudence. ('The mechanics of perfection : Philosophy, theology, and the foundations of american law' (Larry Catá Backer); in Francis J. Mootz & William S. Boyd (eds.), On Philosophy in American Law. Cambridge University Press. pp. 44 (2009).

Plausibility made more sense than perfection (the endless search for the 'right-true-correct' answer) as foundational interpretive doctrine--but the narrative of perfection has been an infection that has been hard to isolate much less cure. Certainly that is what the late Romans thought in the opening of the first book of the Institutes. . . but who reads this old stuff now anyway. . . . Dutifully, that is mindful of a duty to a constructed normative system of right and wrong intimately connected to the judge (and therefore the state), Dobbs takes plausibility off the table--at least as far as five justices are currently concerned--and for the result in this case at least. What is right is the satisfaction of (finally) proving those old justices wrong. At the very least they have taken that off the table when it suits five of them.  And that, indeed, the zealotry of the search for "right" distorts as well as inflates the role of the judge well beyond what it is capable of legitimately containing. It is no wonder then, that people worry about the extent to which virtually every other law of the constitution, built on the now weaker reed of judicial gloss, is also on the chopping block. That chopping block can be brought out at any time--either now or later when the current crop of judges is replaced by another.--perpetuating a state of insecurity in the stability of constitutional gloss.  For this group of justices sex based rules appear high on the agenda, but then so does the reconstruction of a 19th century federal state and the undoing of the 1930s judicial revolution in federal power and the construction of the American administrative state. Fair enough I suppose; nonetheless, for the Republic quite disruptive. For people who believe in the therapeutic qualities of constant states of revolution in society and politics, this may be their day; while it lasts. And with it an interesting wrinkle on theories of continuous revolution once the province of Marxist-Leninist theorists and now in a liberal democratic judicial variation. 

Curiously also off the table--the question around the presumption that the state owns or controls the bodies, minds and souls of the individuals subject to its Republic. In that sense Dobbs merely redirected the source of that power (in states rather than in the General Government) in this case. In all of this, of course, the fundamental question of the extent of public (state) power as parens patriae appears both avoidable and assumed--in the sense that the courts confirm yet again the migration of the power of life and death from the head of family in the Roman Republican and Imperial Eras, to the contemporary American government and its apparatus in this century--and over every aspect of life. This applies as much with respect to the discretionary authority over the bodies of women and their pregnancies, as it does in quite different respect to the parens patriae authority of private economic and social collectives who purchase and consume labor.  Like heroin, once absorbed into the body politic it is hard to find a cure either for the nonsense that the text of the Federal Constitution is made up of "perfect" answers to virtually every problem or that it is to the state alone to determine whether or to what extent an individual may be herself. The jurisprudential methadone available to relieve but not cure this addiction is hardly satisfying.  That would require the return of the search for perfection to a fractured society society; this is something less than acceptable to a nation trying to cobble itself together by some sort of enforced nudging toward an ideal state defined (and redefined) from time to time by those with the power to do so. American Leninism does not consist of a revolutionary party but rather a therapeutic master element willing to assert control in the service of the social, political, and economic ideal. All of these elements are nicely present in Dobbs.

One can surmise from this background baseline that the conversation may be interesting. We will chat about many aspects of the case beyond the technicalities that fascinate lawyers and tend to frustrate the rest of the population. The case is certainly important for its legal ramifications--from its attack on substantive due process and the constitutionalization of human rights, to the reconstitution of federalism, to the diminution of the value of Supreme Court opinions and its precedent (not by inferiors outside the court but by the court in its at least 5-4 majesty from time to time). Nonetheless, cleverness provides its own punishment. Dobbs even in draft form may be one of those jurisprudential moments when the cleverest weaving of multiple strands of jurisprudence can produce a null set or suggest that cloth be purchased elsewhere. In this case in the construction of a broad protection under the Black Letter of the Free Exercise Clause of the 1st Amendment, and of the power of markets and transport. 

Pix Credit HERE

Nonetheless, this collective of justices are not entirely to blame for the state of or more specifically the presumptions of contemporary federal constitutional jurisprudence that can turn rights on and off like a faucet; in this case a leaky faucet.  The judiciary believed they had the power to pronounce a constitutional right in notions of liberty; they now believe they can un-pronoounce it; and they draw on the history of judicial reconsideration of what regrettable decisions (in hindsight mostly) that had to be undone. Nor can they be blamed for being socialized to believe that they have an outsize role in the management of the state. It is only natural given the willingness of the rest of the state apparatus, and the people, to so willingly concede that possibility. The result: the justices must be understood as prisoners of the institutional cultures that generations of judges, elite lawyers and academics, elected officials and societal leaders found convenient through which to build on discursive tropes that they eventually believed (considered here). It was, indeed, a long time coming, woven strand by strand over the course of a century in which societal collectives and the elected branches increasingly found it possible to avoid their duty, and certainly their responsibility to the nation, sloughing it off on the judges who then perhaps out of necessity or perhaps out of pride, took up the challenge. And yet it bears remembering that our courts are much like bitcoin, or most national currencies--they value is wholly a function of what people believe they are worth. And here Dobbs suggests the courts are of two minds.  On the one hand, among themselves,  they believe they are worth very little outside the law of the case: their precedent has as much value as future judges in other cases are willing to give them. On the other hand, with respect to the rest of us, we are meant to take as  inspired--by something-- whatever manifests itself as opinion and at least with respect to inferior courts, be bound by it.  Governmental official resist this narrative when it suits them (for example during the leadership of President Reagan, see here); but are more than happy to use them when convenient.  As for the people, well, they will do what they can, and in the process judicial glosses will become more diminished as a stabilizing source of social solidarity and more valuables a stick to beat political opponents--at least in the realm of judicialized constitutional law glossing (can one use the term law anymore?) with a normative dimension. 

Pix Credit: El Sultán

And thus we speak about the judges the way that in another time and place we might have considered the politics, for a time at least, of the Ottoman Imperial harem (there is a curiously relevant television series built around the legendary Roxanna--Hurrem Sultan playing recently). And we speak about the role of the court in the ordering and protection of our political system; and as the censors of foundational moral-political values. We speak of the courts as the arbiters of division of authority in our political system and all through the process of determining disputes among individual litigants--which have been transformed into contests by collectives for their share of power over others within a Republic much changed from 1798, or 1868, or 1937, or even 1989.  That may or may not be a good-bad-virtuous-evil-necessary etc. thing. The courts, however, have played their role in this very long term transformation.   The abortion of Roe-Casey-Whole Women's Health is just one blip in a very long and complicated road. 

A short list of the questions we may discuss follows

Lets start with basics. What is Roe v Wade?

What is the definition of a constitutional law and is Roe v Wade currently part of the US constitution?

This has been part of American society for nearly a half century, with the latest NPR study showing that 1 in 4 women will have an abortion at some point in their lives. Why is this now coming under fire?

Give us a little background on how the Supreme Court works. Who is on it? What power do they have? Can they re-review any law at any time? Any system of checks and balances?

As a constitutional scholar, what are your thoughts on the Supreme Court structure. 9 individuals with permanent job security and no one to hold them accountable pushing their morale opinions on the entire country. Is there a better system?

Can state and national leaders do anything in this situation?

If overturned, tell us the immediate impacts throughout this country, particularly in trigger states with laws in place already?

Discuss the health and financial repercussions if Roe v Wade is overturned.

Can women simply travel to another state that allows abortions or order abortion pills online? Will that be allowed?

If overturned, can abortion be criminalized as a homicide, with pregnant women and doctors being prosecuted with murder?

Rumors include our government tracking phones and google searches to identify “illegal abortion activities” in the future. Any truth in your opinion?

Abortions can be performed for many reasons. Mothers preference, health of fetus, health of mother, rape/incest just to name a few. Would these all fall into the same illegal category?

Many experts believe that women who want abortions will still continue to have them, regardless of the supreme court’s decision, but just in a much less safe manner. Do you agree?

Given that rates of abortion and poverty are higher in blacks and Hispanics, is it safe to say this ruling would disproportionately effect minorities?

Without Roe, how would the US compare with the rest of the world?

Many believe this is just the tip of the iceberg. If roe v wade is overturned then many other progressive laws will subsequently be overturned. Do you agree? If so, what other constitutional laws will come under fire?

Is contraception at risk for becoming illegal?

If overturned what implications will this have on the future political elections?