The court’s apparent decision to deprive women of a constitutional right to control their bodies, health, and destiny is the direct consequence of the pact between the Republican Party and American’s religious nationalists. Tellingly, the authoritarian origins of the decision are written into the draft opinion itself, which, should it end up being the majority holding in Dobbs v. Jackson Women’s Health Organization, will serve as a model and platform for advancing a wider assault on individual rights and American democracy for the benefit of a privileged few. Women of childbearing age are among the first victims of the authoritarian movement that brought us a radicalized Supreme Court. They won’t be the last.
Since it is difficult to imagine a right more fundamental to our constitutional system than the right to control one’s own body and health, how does a radicalized court justify its dismantling? The short answer comes straight from the authoritarian playbook: a perverse reading of history. Justice Alito’s 98-page draft opinion devotes more than 40 of its pages to a review of abortion-related law with sources reaching back as far as the thirteenth century. The story he tells is slanted and colorful—it includes, for example, a seventeenth-century jurist who presided over the execution of two witches and who also denied the possibility of marital rape—but the logic is far worse. The argument, in essence, is that women should be deprived of our rights in the future because we have often been deprived of our rights in the past.
There is, in fact, historical precedent for this type of argument, and it comes from the most egregious decision in Supreme Court history. In the Dred Scott v. Sandford case of 1857, Chief Justice Roger Taney decided that, notwithstanding the glittering generalities in the nation’s founding documents about the equality of all men, Black people had no rights under the law for the simple reason that they had never been treated in the past as if they did have such rights.
The argument from history follows from a more general, authoritarian argument for a certain kind of group rights against individual rights. Justice Alito offers a master class in smuggling in such a supposed group right to trump the most essential individual rights. Americans have many different opinions about abortion, he argues; therefore it is their right, through their elected legislatures, to decide the question. But the whole point of constitutionally guaranteed individual rights is that they aren’t up for grabs in the next election.
To make the authoritarian thrust in the court’s abortion decision clear, it is crucial to set that decision in the wider context of the court’s work in other fields. Depriving individuals of their rights is only half of the work of a court bent on paving the way for a Christian nationalist regime. The other half consists in dispensing privileges to favored groups.
In the draft decision overturning Roe v. Wade, Alito insists that only those rights specifically enumerated in the Constitution deserve judicial protection. And since the Constitution nowhere mentions “abortion,” he argues, there is no constitutional right to abortion. But this court has not had the slightest trouble in claiming some transparently unenumerated rights when it serves the interests of favored groups.
For example, the Constitution nowhere specifies that parents have a right to draw on public funds for the education of their children in religious schools. And yet this court has indeed located such a right and pulled it out of the very teeth of the Establishment Clause of the First Amendment. The Second Amendment nowhere enumerates a right to own an unregistered handgun, any more than it enumerates a private citizen’s right to own a Javelin anti-tank missile. Yet this court has located such a constitutional right (for the unregistered handgun, at least).
Conversely, the Constitution does appear to enumerate a right to vote, notably in the Fifteenth Amendment. But since that right might apparently conflict with the right of the court’s favored groups to gerrymander their way into the legislatures they prefer—the better to ram through unpopular bills—it appears to be going the way of the rights of women to control our own bodies.
In short, in the hands of this radicalized court, the simulacrum of constitutional reasonings is just a way of depriving disfavored groups of their individual rights while dispensing privileges to groups with the supposedly “correct” viewpoints. It would be foolish for anyone to imagine that the process will come to an end with the loss of abortion rights.
If the rights of state legislatures trump the rights of women over our own bodies, why then should they not trump the right to contraception? Why should they not trump the rights of gay people to have sex or get married? If the historical fact that this or that group of people has been deprived of rights in the past is sufficient to deprive them of such rights in the future, then who, apart from the white male “believers” who dominate the leadership of the Christian nationalist movement, is really secure in their rights?
The irony here is that the opinions of the “right-thinking” people may be invoked, even when their opinions are in contradiction with the will of the majority. Leonard Leo, who has played a vital role in building the conservative legal movement, has long believed that the American public, corrupted by the values of liberalism, would never willingly comply with the moral medicine needed to “save” America. The way forward, he concluded, was to take over the courts. If activists could fund and funnel right-thinking justices into the judiciary, especially onto the Supreme Court, they just might be able to reverse the moral tide.
Leo “figured out 20 years ago conservatives had lost the culture war,” said Leo’s former media relations director, Tom Carter. “Abortion, gay rights, contraception—conservatives didn’t have a chance if public opinion prevailed. So they needed to stack the courts.” The Federalist Society is a critical component of the right-wing legal sphere whose project is to use the court system to hand over control of our country to those who have turned their backs on the principles of equality and pluralism that represent the best of the American promise.
We are seeing the consequences of three decades of Christian nationalist plotting to stack the court with ideologues. The radical faction that presently dominates the court was assembled in a series of frauds against the spirit of the Constitution. It includes individuals who lied on their way in and live in breach of the most basic ethical obligations to police their own conflicts of interest. It has become an arm of a movement that intends to replace American democracy with an authoritarian regime, run on ostensibly “biblical” principles. If this is what has become of this institution, then it needs fundamental reform.
Anyone who cares about the rights of individuals against tyranny should fight the court’s apparent decision on abortion rights. But unless we make the fight about the takeover of the court itself—and unless it brings about the changes that this corrupted institution requires—the existential threat to American democracy will persist.