Jesse Jackson is correct—the leaked opinion in Dobbs v. Jackson’s Women’s Health Organization will be the female version of Dred Scott where the Supreme Court declared that African-Americans were property and could not be persons according to the intent of the Constitution. Yet Dobbs, while incredulous, was entirely predictable and it also speaks to the misguided belief in the role of the Supreme Court as a defender of individual rights, as well as to the failure of the use of the framers’ intent to protect rights.
The leaked majority opinion in Dobbs overturning Roe v. Wade is troubling on many fronts—the least of which is the leak of which so many are focusing on. The first problem is of course what it does—it is the first time in American history the Supreme Court overturned one of its own constitutional precedents in order to take away rights. In my research, the Supreme Court has only overturned about 145 of its own constitutional precedents over time. Notably, Brown v. the Board of Education declaring segregation unconstitutional overturned Plessy v Ferguson’s “separate but equal doctrine.” Lawrence v. Texas reversed Bowers v Hardwick which ruled that gays and lesbians have no right to sexual privacy.
Dred Scott was a horrible decision, but it did not create less rights for African-Americans; they already had none and the decision simply made that point clear. Dred Scott perhaps correctly reflected the intent of the constitutional framers, many of whom in fact were slave owners. Our hero worship of the framers often ignores this fact or that as many have argued, the Constitution was a document engulfed by slavery and racism and as Thurgood Marshall once pointed out, the opening words of it—We the people—hardly was inclusive.
Dobbs is at odds with a concept of democracy that is about expanding and not contracting rights. It does so by contending that a female right to bodily autonomy is not protected by the original Constitution. Alito points to the fact that there is no language in the Constitution protecting abortion and that there is no history supporting it, thereby making it a right the Court should recognize. Again ignoring some of the opinion’s questionable history, it might also be true that the original constitutional framers did not intend to grant women any rights. In that sense, women too were not part of who “we the people” was meant to protect.
But arguing that the original Constitution or that long-standing traditions do not protect rights speaks exactly to the problem with originalism or appeals to the past to defend and protect rights in the present and future. American history is racist, sexist, classist, and homophobic. A theory of legal interpretation based on such a history will never support the expansion of individual rights. The methodology used by Alito in Dobbs, perfected by Antonin Scalia and developed by the members of the conservative Federalist Society is biased against individual rights and freedom. It locks a contemporary American democracy into a vision of the past which simply is antithetical to any contemporary notion of what we mean by a free society.
Dobbs is a problem because it points to a reality of the Supreme Court that many wish to hide. Alexander Hamilton’s famous Federalist Paper number 78 described the Court as the “least dangerous branch” of the government. He claimed it would have the power of judgment not will, and that it would be an apolitical institution. Law schools and legal mythology wish to paint the Court and the law as above or outside of politics, and that it is a neutral body expressing the ideal, as it says on the frieze of the Supreme Court building of “equal justice under law.” The reality is that the Court has consistently been a policy maker, the Justices politicians wearing robes who are appointed by presidents for political considerations.
Over the course of American history some of the most consequential decisions made in American politics came from the pens of the Court. And when we examine who the Court has favored over time, more often than not it has been corporations, the affluent, and white Caucasian Christian interests at the expense of everyone else. At best only during a brief period of time, perhaps during the Warren Court, could one argue that the Court seemed to expand rights and live up to the myth of it being a counter-majoritarian institution protecting the oppressed.
What Dobbs suggests then is that one mistake of the reproductive rights and other movements is to place its enduring faith in the Supreme Court as a guardian of its interests. One has to hand it to the pro-life movement. They disliked Roe v Wade and undertook a fifty-year grassroots political movement to overturn it, recognizing that Court decisions are not forever and that at some point the Supreme Court would turn back in their direction. They did that while many in the pro-choice movement were misguided in their belief that the Court was there to protect them.