Tuesday, June 27, 2023

Part I

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Theory, Movement, Politics? How Did Dobbs (And Roe’s Reversal) Arise?: The Conservative Legal Movement Behind the Decision and the Left’s New Response

By now, Americans are trained to look to the last week of June for big decisions by the United States Supreme Court. This year is no different and there are still several big decisions pending. We expect them to be handed down this week before the court goes into its summer recess. And the strategy of the court has seemed over the years to be drop some of the most controversial seismic decisions in the last days of the annual session, that is before the summer recess, in order that the decisions will stand, the court leaves town, and then the nation can both adjust and argue about the actions undertaken by the court.

Let’s just remind ourselves there’s several big cases of our concern. The biggest one probably has to do with affirmative action, a big case having to do with the role of affirmative action, the constitutionality of race-based affirmative action when it comes to American universities and the admissions process. That’s one thing. Two big religious liberty cases, one known as 303 Creative, and another one that has to do with the context of a postal carrier. Both of these are going to be very interesting. We’ll take time to look at them once the decisions are handed down.

And then we are also expecting some kind of decision on President Biden’s student loan proposal. That court ruling may not turn out to be definitive, but nonetheless, we’re going to have to wait and see. In any event, the Supreme Court is going to act. And in all likelihood, it is going to act and do so publicly in just the next few days. But yesterday on The Briefing, we talked about what happened last year. We talked about the one-year anniversary of the Dobbs decision that reversed Roe v. Wade, and we looked at the historic context and the meaning of that decision a year later.

But I want us to look at something else even as we were expecting some of these big decisions by the Supreme Court. I want us to look at where we are in the national conversation in worldview terms related to the very existence of the Supreme Court and the role played by the Supreme Court in our constitutional system of government. And I also want to look at some of the arguments being presented as to how Americans should understand the court.

A very interesting analysis. An argument was presented by two law professors in recent days at Politico. The headline in the article Why the Supreme Court really killed Roe V. Wade, that’s a very interesting assertion. But the two authors are Robert L. Tsai, professor of law at Boston University, and Mary Ziegler, professor of law at Florida State University. When it comes to the Supreme Court in the issue of abortion, few people have written more and are more frequently quoted on the issue than Mary Ziegler.

But nonetheless, here’s the argument made in this article that ran at Politico. The argument is that when you are looking at the Supreme Court and the reversal of Roe v. Wade in the Dobbs decision last year by a conservative majority on the court, the argument here is that what you see in that conservative majority is a movement conservatism as over against, say, a partisan conservatism.

Now, that’s a very interesting argument, but I’ll tell you what question this attempts to answer. That question is what we saw in the Dobbs decision representative of conservative legal thinking or of, say, a responsiveness to conservative political arguments? The bottom line in this is that many people on the left recognize or at least claim that they now have a political advantage over Republican candidates at both the state and the national level, even the local level for that matter, when it comes to the abortion issue.

According to their reading of the last, say, 53 weeks of history, when the Supreme Court’s conservative majority struck down Roe v. Wade, that created a huge political problem for the Republican party. That is the basic argument. These two law professors are arguing that the way to understand that is to understand that the core of the conservative majority in the court is driven by a movement, not by so much partisan considerations.

Now, I think there’s something to this by the way. I do think that when you are looking at the intellectual power and the court coming from conservatives, it clearly does represent a conservative intellectual movement, one that is grounded in an understanding of how to read a text, and in particular the text of the Constitution of the United States of America. This movement, it’s often gone by terms such as originalism or strict constructionism or textualism, but the bottom line of that analysis is that the Roe v. Wade decision in 1973 is exhibit A of a decision that had no textual grounding in the Constitution. It was the Supreme Court handing down a decision from on high on an issue that wasn’t really constitutional, it was rather political. It was moral.

The Supreme Court just irrigated to itself the power to adjudicate the question of abortion and to claim it was doing so in the name of the Constitution. Yes, what took place in the conservative intellectual world after Roe v. Wade, but after some other Supreme Court decisions as well. And in response to both pragmatism and formalism and the politicization of the high court in which the court was basically functioning as just another political branch of government, you had the conservative intellectual movement and it was represented as we’ve often discussed by people such as the late Justice Antonin Scalia who simply said, we have to go back to the Constitution. We have to go back to the text. We have to go back to the sentences, back to the words, back to the text, and only then do we discipline ourselves to adjudicate according to the actual text.

In this article, these two law professors, Robert Tsai and Mary Ziegler, make the argument that the reversal of Roe v. Wade happened only after long, long work, basically a half century of work by the conservative movement. But they go on to say there are really two conservative movements. One of them, they identify as, “The grassroots anti-abortion movement.” The second they describe as the elite legal conservative movement, which they went on to say “is motivated to restore what it describes as the original meaning of the U.S. Constitution.”

Now, during this half century of struggle, those two movements were not at odds. They were complimentary. Indeed, both were necessary to what took place because remember, the Supreme Court doesn’t reproduce itself. It is actually representative of the political process. The elected president of the United States has the opportunity to nominate justices to the court when there is a vacancy. That is a political act.

And over the course of the last half century, it has become one of the most predictable acts undertaken in American politics. That is to say democratic presidents nominate liberal justices to the Supreme Court. Republican presidents nominate conservative justices to the Supreme Court. On most of the clear, controversial questions, when you look at the breakdown of the vote, it is not only a breakdown in terms of the majority and the minority of the court. It is a breakdown in terms of the party affiliation of the president who nominated each justice.

But the key issue I want to raise from these two authors has to do with their definition of movement judges. “Movement judges have a different mindset than other types of judges. And that’s true whether they come from the political left or the political right. A movement judge,” they write, “is less likely to defer to experts than a technocratic one and more likely to think of issues in terms of values. A preservationist,” they write, “tries to work with existing precedent as much as possible and cares about how the institution is perceived. By contrast, a movement judge is focused on what a mobilized subset of people want and is willing to overturn precedent to get there.”

Now, I think there’s some truth in what they write, although I think they basically betray their own political bias at the end of that sentence. I think instead, what you see in conservative movement judges is an understanding that regardless of the politics, the text is the question. And the meaning of the text, the words of the text, the binding authority of the text is exactly what judges should consider to be their authority. And thus their job, independent of partisan or political consideration, should just be to interpret the actual text of the Constitution in terms of its meaning.

Now, I would judge that in this context, this article was written by these two law professors largely to explain more to the cultural left than to the cultural right what in the world happened roughly a year ago with the reversal of Roe v. Wade. How in the world did that happen? Because Roe v. Wade at that point have been a precedent for 50 years, a precedent that had withstood other challenges. Why did it fall as a precedent after a half century?

These two law professors are trying to explain why, and they say it was the result of this very clear intellectual movement among conservative legal scholars, law professors, and eventually, judges. It was the power of this movement to persuade those judges who were a part of this movement. And they go on to explain how that happened, to read the Constitution differently and to see their role differently than the judges who had come from the previous progressive consensus.

The law professors, by the way, go back to Roe in 1973 and they describe it as “not a movement decision, but a rather technocratic one.” Well, it certainly was technocratic in one sense. As a matter of fact, it was yet another example of the court, made up of lawyers by the way, who acted as if they were medical specialists. Indeed, even medical doctors.

By the way, the author of that majority opinion that supposedly found a right to an abortion in the U.S. Constitution was Harry Blackmun, a justice, who during his tenure as an attorney in Minneapolis, had been counsel for the Mayo Clinic, and thus he somehow felt himself able to judge according to medicine as well as the law. It was he who basically broke down the abortion question into three trimesters. That is three three-month periods. And he also went through an awful lot of material, indeed what these law professors call technocratic material, in making these distinctions.

What they failed to recognize and to concede is that Harry Blackmun had come to the decision, to the conclusion that the Supreme Court should legalize abortion and find what isn’t there, by the way, a right to an abortion in the U.S. Constitution. The only question was the means of argument by which he was going to get there. We also know from the internal records of the court that about halfway through the development of the Roe majority decision, Blackmun actually changed virtually the entire structure of his argument.

But the really interesting aspect of this article is the distinction between those who are committed to a movement as the conservative justices they say are, and I think they’re largely right about that, and those who are committed to a more partisan agenda. And that does help to explain, for example, why the justices didn’t timed this decision in a way that might have been arguably more politically advantageous because we are talking about a politically volatile issue.

But I think the law professors are wrong on many things. I think these two are right when they say that when you look at the Supreme Court, you look at the conservative majority, you are looking at those who are committed, genuinely committed, clearly committed, and I think rightly committed to a conservative movement in terms of how to understand the role of the Supreme Court and the role of the Constitution, and thus they are not acting in a way that is so starkly partisan. This even comes with a partisan cost.

These two professors also seem to be warning, particularly the political left and the pro-abortion movement, that they’re up against a massive movement. They cite such organizations and events as the Alliance Defending Freedom and the Blackstone Legal Fellowship. I’ve had the privilege of speaking for both by the way, as being influential, both in terms of actions before the court and the courts, and on the other hand also in the preparation of law students, the creation of a conservative legal movement. And the implication is that if liberals want to have the same long-lasting influence on the court, they’re going to have to create a similar, if opposing, intellectual movement.

Again, on this I’ll come back and say I agree with these two law professors that this was largely the result of a movement, a conservative legal movement for which, by the way, I am incredibly thankful. But it’s also very telling, I think, that those on the left just assume that their position is, say, normal. Any pushback on it is some kind of radical movement. There are also many on the left who, quite honestly, they just see the Supreme Court as a third political branch of government, and they’re disappointed when it doesn’t turn out to act that way.

Part II

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SCOTUS Should Be More Political?: Arguments Over the Role of the Supreme Court in America Abound

But then also in recent days, another very interesting argument has come from the pro-abortion side. Three law professors came together to write an article for the New York Times. The headline simply states their agenda, “We need to talk about overturning the Dobbs decision.” So this tells us a lot about where we stand. It took the pro-life movement a half century, roughly, to reverse the row decision. But now you have people from the left, from the pro-abortion side saying, “If we’re going to make the progress that we believe we need to make, we’re going to have to seek to reverse Dobbs.” And there are two huge issues here that come into play.

These three law professors do see the challenge. By the way, they’re David S. Cohen, Greer Donley, and Rachel Rebouche. They write, “To state the obvious, overturning Dobbs is not going to be simple. The work will be daunting requiring a multi-pronged and complex attack. It will also require patience as overturning Dobbs will require the courts to become more hospitable to abortion. We have no idea,” they write, “when a different future will come. It may come unexpectedly soon, or it may be several decades from now, but that did not deter the anti-abortion movement in 1974, and it should not deter the abortion rights movement in 2023.”

Once again, we have two movements, in this case, opposing movement. You have the pro-life movement and the pro-abortion movement, and both of them are struggling not only for the Supreme Court and at virtually every level of the courts, but also for the court of public opinion, and beyond that, in the court of the brazenly and openly political.

By the time, these three law professors in their article, they’re calling for wealthy, pro-abortion sources to fund the effort to try to create this kind of movement. They’re calling for the academics to join. Scholars, researchers, and funders, they write, have an important role to play as well. “Scholars need to develop a persuasive, consistent, and multidisciplinary response to the flawed history in theory in the Dobbs Majority.”

But as I said, this article comes with a second argument, and basically, you should have seen it coming. This is the argument that replacing Roe is not enough because for the abortion rights movement today, Roe v. Wade simply doesn’t go far enough. This is what they write. “Developing a long-term vision to overturn Dobbs doesn’t mean simply returning to Roe. That case,” they write, “provided a national baseline that prohibited every state from banning abortion until the point of fetal viability, but,” they write, “it also had significant shortcomings. It did not guarantee abortion access for people without financial resources who are disproportionately people of color. It said little about the broader rights of pregnant people. And the interpretation the court gave it in later cases was too forgiving of states regulating abortion.”

In other words, this is another straightforward argument that there should be no restrictions on abortion whatsoever, and the taxpayer should pay for it. Oh, and don’t miss this. Back in 1973, Roe was after all grounded in a worldview that those on the left consider just woefully and oppressively outdated. Because back in 1973, yes, that far back, say 50 years ago, back in 1973, even the left agreed that the only people who could be pregnant were, wait for it, women. Oh, but this is 2023, and these law professors make clear that’s not enough anymore.

But when it comes to the role of the courts, an interesting article appeared also in the Times just a bit ago. It’s by Jedediah Britton-Purdy, who’s a professor at Duke University. His article is entitled, “The Court should be More Political, not Less.” What you see here is a straightforward argument that the courts and the Supreme Court in particular should simply be a third political branch of government. Now, there is no way that the Supreme Court could be absolutely non-political because it is a politician, the elected president of the United States who has the sole power of nominating judges to the court, so there’s at least some politics in it. But the framers of our constitutional order intended for the court to be categorically less political than the other two branches of government.

But what you have here coming from the left is the argument that that has not worked so well for the left. And in particular, when you look at the pro-abortion movement and you look at the reversal of Roe, I would’ve to say as a conservative that when you look at the rest of the courts and much of the rest of the jurisprudence, it’s actually worked quite well for the left. But when it comes to abortion, well, as I say, abortion is the central sacrament to the secular left, and so a failure on abortion means catastrophic failure.

Jedediah Britton-Purdy writes, Like it or not, the courts are another political branch, most of all, when they decide basic constitutional questions such as whether freedom and equality forbid extreme gerrymandering.” Later in the article, he addresses Roe, writing, “Since the U.S. Supreme Court overturned Roe v. Wade in 2022, many liberals have rediscovered a democratic insight. Constitutional principles are too important to leave to judges alone.” Now, one of the things we need to note is that people on the left went to the courts in order to achieve their aims precisely because they couldn’t gain those aims by legislation. They just turned the courts into effectively another legislature with a smaller number of voters.

But the political dimension, the political argument is made even more strongly at the end of the article where we read, “Democrats should also provide stronger congressional oversight of the Supreme Court and even push for a new generation of constitutional amendments intended to strengthen our democracy and empower voters. An uphill battle,” he writes, “to be sure, but one that is more likely if we can rebuild wide widespread conviction that the Constitution belongs to all Americans, not just a few judges.”

Once again, I’ll just note that when the Supreme Court was just about uniformly ruling in a way that pleased liberals, liberals were quite pleased to leave the Supreme Court alone, just keep on appointing liberal judges and justices. But a change in the intellectual majority on the court has led to a change in the way the court is perceived by many, if not most Democrats.

At least in this article, you have a straightforward and honest call for the court not to be less political, but considered even more political. At least now, we can see the vast worldview chasm between these two different ways of looking at the court and the Constitution. We need to keep that in mind with such big decisions expected just in upcoming days, some perhaps even today, from the nation’s highest court.

Part III

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The Left’s Cultural Concept of Backlash: America’s ‘Triggered’ Response to Cultural Movements and Its Significance

In terms of worldview analysis, I want to turn to another recent argument. This one ran just on Sunday by Michelle Goldberg. It’s entitled, “On Backlash.” So in this case, the worldview lesson is something of a vocabulary lesson. The word backlash used in this context is especially used by the left to try to explain why anyone comes to conservative understandings or votes for conservative candidates. It has to be the result of something they explain as backlash. Backlash against what? Well, the subhead in Michelle Goldberg’s article is this, “America is Triggered by Progress.”

Now, one of the worldview issues we often talk about is the way we understand history, and there is a progressivist worldview that holds to a progressivist understanding of history particularly in the modern age, in which as time moves forward, it can only move in what they would declare to be a progressivist or emancipatory direction. That is to say, more rights, more breaking of old taboos, more revolution against the existing rules, new categories, LGBTQ plus, don’t forget the plus sign. This progressive arc they see can only be interrupted when people simply refuse to go along with the arc of progressivist history and instead they demonstrate a backlash.

Michelle Goldberg is often insightful writing from the left, and in this case, she goes back to Susan Faludi’s book published in 1991, entitled, Backlash: The Undeclared War Against American Women. This had to do with such things as the rise of the pro-life movement. And she went on to write, that is Goldberg writing about Faludi, says that Faludi “argued that in response to the great but unfinished gains of second wave feminism, reactionary forces sought to convince Americans that women’s dissatisfactions arose from equality rather than from the lack of it.”

Now, this gets to one of the big worldview complexities at the end of the 20th century and the beginning of the 21st century. To the consternation of so many feminists, in particular second wave feminism, so influential in the culture, one of the major consternations of the left is that so many women didn’t buy into second wave feminism. Faludi blamed it on men primarily. And even as Goldberg cites, Faludi said that backlashes “have always arisen in reaction to women’s progress caused not simply by a bedrock of misogyny, but by the specific efforts of contemporary women to improve their status, efforts that have been interpreted time and again by men, especially men grappling with real threats to their economic and social wellbeing on other fronts as spelling their own masculine doom.”

But I just returned to the fact that the most ardent and effective opponents of second wave feminism were actually not men, but women. The term backlash right now is being used by many, for example, on the transgender issue because according to the logic of the left, LGBTQ plus, it meant that they expected the transgender movement to progress in an unbroken line of liberation just as by their reading the gay and lesbian movements had. But it’s not turning out quite that way for reasons I think Christians understand. It has to do with the fact that it’s actually biology that the transgender movement seeks to defy.

But current cultural concerns, and by the way, it’s showing up in survey data indicating that a majority of Americans actually aren’t buying the transgender argument. That according to the left can only be true because of a backlash by those who are opposed to liberal progress.

I thought it might be a good idea for us to consider some of these things given the looming decisions to be handed down this week. And in that light, let’s buckle our seatbelts and get ready to think those through as well. When they come, let’s be ready.