A radical decision for radical times
The decision is a reminder that this era is indelibly marked by the influence of former President Donald Trump. He appointed three of the five justices who constituted the majority and ushered in an era in which unthinkable events became commonplace.
Here’s what we don’t know: how a society already rocked by radical currents will respond to this new incitement to a culture war – which will be waged in Washington and dozens of state capitals. It is the nature of radical moments, after all, that old assumptions are upended and familiar landmarks are rendered irrelevant.
Radical may seem like a strong word, but here I’m just saying it in clinical terms, not pejorative or complimentary. Of course, people who applaud the disappearance of Roe vs. Wade, no less than those who lament it, must appreciate the jaw-dropping nature of the decision, even as Alito presented it as the purely rational conclusion of legal logic. In a legal system that fundamentally relies on precedent, a slim majority—a majority made possible by a combination of partisan calculations and the random chance of a certain judge’s death—decided that particular precedent to be null and void. The same applies to a right which has existed for half a century and which affects the most intimate sphere of human life.
The precise timing of the decision has made its implications more clearly seen – as part of a larger whole. It was a stunning decision, coming at the end of a week in which the public learned some amazing things about what happened at the end of Trump’s presidency.
In January 2021, as President Joe Biden took office, it seemed like six years of Trump’s dominance in American politics — two as a candidate and four as president — were coming to an end. Trump personally may have broken down the barriers of custom and decorum through outlandish rhetoric and behavior. But the political system as a whole appeared intact and largely unscathed – he was now an ex-president, discredited by his loss and his role in encouraging the January 6 riot.
In fact, it wasn’t until Trump left the presidency that we can clearly see how he broke down barriers across the American regime. The disappearance of Roe vs. Wade precedent is part of his legacy. So does the historical precedent that presidents gracefully step down once a winner is legally declared.
Reality is shattered, precedents are the signature of this era. Friday’s Supreme Court ruling is a useful opportunity to think back to all the things that one might have assumed “would never happen” – but have actually happened in recent years. Alternatively, think about the things you assumed would happen, because that’s how the American political system works, that ultimately didn’t happen.
Surely it wouldn’t happen for partisan opponents in the Senate to block a presidential nominee for the Supreme Court from filling a vacancy that occurred almost a year before the end of the president’s term – that’s not how the process works. But of course that’s how it worked in 2016, which is why Neil Gorsuch’s Trump pick had to vote for repeal deer rather than Barack Obama’s choice of Merrick Garland to maintain it.
Surely a Supreme Court would never decide a polarizing social issue on a 5-4 vote – that’s how it works now. We should try to reach a unanimous decision, as in 1954 Brown v. Board of Education decision ending segregation, or at least produce an emphatic majority, as in the 7-2 vote when deer was decided in 1973. Except that’s not how it works anymore. Chief Justice John Roberts’ pleas for a narrower ruling in Dobbs v. Jackson Women’s Health Organization were met with contempt by his Conservative colleagues, who felt that five votes was more than enough.
Certainly, the deliberations of the Supreme Court are treated with reverence, which is why draft opinions never leak. But in this case, they did, a first in the modern history of the institution.
Speaking of institutions, proud members of Congress would surely be more loyal to their institution and the effective functioning of constitutional government than they would be politically party to a president of their party. It’s what forced Richard Nixon to accept his fate in the Watergate scandal and leave office, just a year after the original deer decision. So far, that’s not happening with this generation of Republicans in Congress, few of whom turn against Trump even after this week’s revelations about how he tried to enlist his Justice Department. for making false allegations of voter fraud in his desperate bid to stay in power after losing the 2020 election.
All of these are surely worthless currency in contemporary politics.
This is especially true of the question of what happens next. Many political analysts predict the court ruling will energize progressives in ways that could help Democrats and eventually lead to the restoration of abortion rights lost in court defeats through political victories. Sounds plausible to me. But it’s worth wondering how many of these analysts predicted Trump’s victory in 2016, or even that he would increase his vote total in 2020.
Even the majority of the Supreme Court disagrees with what she produced. Alito’s opinion said nothing in the decision would affect same-sex marriage, or the right to practice birth control, or other decisions that relied on some of the same legal reasoning as Roe v. Wade. But Judge Clarence Thomas issued a concurring opinion making it clear that, in his view, all of these precedents should also be reviewed.
For now, a majority of the Supreme Court has gotten the sweeping decision it wanted — and the reality that sweeping times lead to unpredictable outcomes.