Abortion Rights Revisited: A Baker’s Dozen Things Besides the Big Thing to Consider

Abortion Rights Revisited: A Baker’s Dozen Things Besides the Big Thing to Consider

By Joel Levin

This past week, in Dobbs v. Jackson Woman’s Health, the U.S. Supreme Court fundamentally changed the law of abortion in the United States. The case involved a Mississippi statute that, essentially, prevented almost all abortions after 15 weeks.  By a 5-4 ruling, the Court did more than allow the Mississippi law to stand. It took the opportunity to overturn the 1973 Roe v. Wade decision providing for the right to an abortion. In short, Dobbs eliminated that right. Chief Justice Robert’s concurrence added a vote, 6-3, to allow the restrictive Mississippi law to stand. The majority opinion by Justice Alito held “Roe was egregiously wrong from the outset. Its reasoning was exceptionally weak, and the decision has had damaging consequences”. The minority opinion, joined by Justices Breyer, Kagan, and Sotomayor, stated quite the opposite. “With sorrow – for this Court, but more, for the many millions of Americans who have today lost a fundamental constitutional protection – we dissent”. The lines of disagreement are clearly drawn, and the political battle and accusations are proceeding apace. This has already started an avalanche of recriminations and finger-pointing. These are important matters and should be analyzed carefully. Here, though, I want to consider a baker’s dozen of lesser, but related, questions.

1. Is Dobbs undemocratic?

The Dobbs decision has been criticized for being undemocratic. The complaint is that it ignored the popular will of the people, at least as shown by the opinion polls which overwhelmingly favor retaining Roe. It has been pointed out, rightly, that three of the justices in the six-person majority were selected by a President (Trump) who came in second in the popular vote tally. The Court itself is undemocratically chosen, appointed in a somewhat arbitrary and haphazard way for partisan reasons, with little nod to majority attitudes or popular consensus, or even to a moderate attitude. Democracy is largely irrelevant.

That said, the Dobbs decision, whatever its other failings – and they are legion – is one that advances democracy. Unlike the Court’s striking down of any reasonable campaign finance reform aimed at applying a brake on elections tilting toward the wealthy; unlike the Court’s disfavoring of voting rights reform, allowing states to manipulate minorities out of electoral office; and unlike the Court’s hands-off stance toward gerrymandering generally, allowing political parties in power to stay in power despite the loss of their popular base, the Dobbs decision returns power directly to the electorate. If the states choose abortion, fine. If not, fine. At least for democracy, fine. It is no different than the decision to legalize marijuana or fireworks. If democracy is the issue, then let the masses decide. We can see this more clearly when we contrast Dobbs to the other recent blockbuster decision by the Supreme Court, New York State Rifle v. Bruen. Bruen stuck down a 101-year-old statute, the Sullivan Act, which restricted the ability to carry concealed arms. The citizens of New York cannot alter that holding, no matter the popular vote.

It might be suggested that the right to an abortion is or ought to be considered a Constitutional privacy right. That might be true, as privacy is essential to individual dignity and autonomy, and those concepts are part and parcel of what the Constitution protects. Perhaps. But whether true or not, and regardless of the different issue of individual liberty, the decision is one in favor of greater, not less, democracy.

2. Should we worry about the concurring opinion of Justice Thomas?

There are three concurring opinions, that is, opinions that agree with the outcome but do not necessarily endorse the analysis.  Chief Justice Roberts complains the majority opinion is too broad, deciding more than necessary. His is seemingly (but not actually, as we shall see shortly) a technical quibble. Justice Kavanaugh writes to reassure us in an alarming moment, suggesting that there is no need to worry about the Court continuing to reverse established precedents. They have gone as far as they intend to go. That leaves the more dramatic and much discussed Justice Thomas opinion. Thomas suggests things have gone far, but not far enough. He argues that a number of rights – to privacy, to same sex activity and to gay marriage – are ripe for reversal. To justify this position, he raises the dreaded and awful ghost of substantive due process.

Briefly, maybe too briefly to begin to describe the issue of substantive due process, it is basically the doctrine that the Due Process Clauses contained in the 5th and 14th Amendments protect substantive fundamental rights, as discerned by the courts when observing significant infringements on the basic freedom of Americans. That is, substantive due process gives license to the courts to create new rights. This is the doctrine that Thomas rails against, a doctrine that reached its peak in Lochner v. N.Y. The Court in Lochner held it was illegal for New York to restrict the hours bakers could work on health and safety grounds, as that restriction violated the bakers’ substantive due process right to economic liberty. The State was not allowed to legislate a safer workplace. Substantive due process, according to Thomas, “exalts judges at the expense of the people”, “distorts other areas of constitutional law” and “is often wielded to disastrous ends”. In short, it has no place in the legal system. He then lists decisions in favor of privacy, homosexual rights, and gay marriage. He says that their justification on grounds other than substantive due process is a mere subterfuge. They are really rooted in substantive due process and should be eliminated.

But there are rights with no mention in the Constitution that Thomas seems to have no interest in curtailing. They escape the dreaded substantive due process label, but one might honestly wonder why. Take two: the right to travel guaranteed in Zobel v. Williams and the right to interracial marriage in Loving v. Virginia. Neither marriage nor travel are part of the Constitution, yet both are now unquestioned rights, even by Thomas. 

There is different concern. Life changes. We once burned witches, whipped sailors, stole Native American land, kept slaves, and hanged horse thieves. Name-calling a decency that recognizes new rights doesn’t make that decency indecent. 

By the way, I suspect Thomas has at least mild support from Justices Alito, Gorsuch, and Barrett, and we should worry about it.

3. What does being Chief Justice have to do with it if anything?

Chief Justice John Roberts’ views can be found in a lonely concurrence. He finds the Mississippi law to be constitutional, surely undermining Roe, but also finds that it is not yet time to toss Roe. Given the kind of reasoning he had been engaged in throughout his tenure, dismissing precedents and legislative intentions with alacrity, this might appear surprising. It might also seem surprising that Roberts abdicated his prerogative of writing such an important decision – a right of the Chief if he wishes to exercise it and is in the majority – in favor of a concurrence that strikes many as simply being a cavalier delay of the inevitable death of abortion rights. What, then, if anything, is the real role here of the Chief Justice? Is it just overseeing the Court’s budget and office management, occasionally meeting with Congress, opening judicial conferences, and keeping order in the court and chambers?

For John Roberts, the problem lies with his awareness that the popularity and respect for the Supreme Court has dropped off the chart. In the past 20 years, it sunk from an approval rating in the 60% range to one now in the low 30% range. Since the Court is without the power of the purse or the power of the police or even (usually) the power of the subpoena, all that remains is the respect people may have for it, and it no longer has that. This is what concerns Chief Justice Roberts.  

That concern can be seen in Robert’s ongoing references to his own (prior) favorite Chief Justice, Charles Evans Hughes. Hughes oversaw the Court the last time there was such sinking popularity, during the early Roosevelt administration. The Hughes Court was a product and continuation of the activist Court of the Lochner era, when the Supreme Court regularly struck down state and federal legislation intended to improve the condition of the working class and children, the rural and urban poor, and just about everyone else who needed economic help to survive. Matters reached a head in 1937. FDR attempted to add additional judges, the so-called court packing, to rein in judicial activism, an activism that was curtailing economic reform. 

Then came the crucial case of West Coast Hotel Co. v. Parish. It posed the question of whether it was constitutional for Washington State to set a minimum wage. With more unpopular judicial activism in the air, Hughes convinced Justice Owen Roberts to switch his vote, to uphold the minimum wage law, and to allow the Court session to end peacefully. Four judges retired between 1937 and 1939, and things returned to normal until the recent Roberts Court. Hughes’ persuasion of the first Robert’s was labeled as “A switch in time saves nine”. 

That is exactly the kind of judicial tempering that Roberts wants today. Focused on Charles Evans Hughes since he was first nominated in 2005 as Chief Justice, Roberts has more recently (in 2015) said in a talk to the New York Historical Society that “It fell to Hughes to guide a very unpopular Supreme Court through that high noon showdown against America’s most popular president since George Washington.“ He said that he admired what he called the “quiet way” that allowed Hughes to be “very effective in promoting collegiality” while “presiding over a sharply divided Court”. 

One might say several things here. First, given that Justice Thomas has been public in his attacks on Chief Justice Roberts as being ineffective, and given that in fact he has been ineffective, one can only see the Chief Justice Roberts’ tenure as Chief as a failure by its own terms. Consider what Thomas said when comparing Roberts as Chief with the prior Rehnquist Court. “We actually trusted each other. We may have been a dysfunctional family, but we were a family, and we loved it.”  Given the barrage of insults hurled during the years of the Rehnquist Court, even among  those nominally on the same side (Scalia alone would routinely hurl insults, calling various colleagues’ opinions “sheer applesauce”, has “overlooked the rudimentary principle of specific provision government’s a general one “, “we should start calling this law SCOTUS care” and she “cannot be taken seriously”), not to mention the insanity of Bush v. Gore in 2000 deciding the Presidential election. There, Justice Stevens in his dissent, wrote that the Court had wounded “the nation’s confidence in the judge as an impartial guardian of the rule of law.” This makes the Thomas insult all the worse. 

Second, one might think that the kind of results – the workability that Charles Evans Hughes achieved and that others, beginning with John Marshall whose term saw unanimity on virtually every decision (only 7 dissents during his 34 years as Chief), to Earl Warren who persuaded a Supreme Court originally voting in Brown 5-4 in favor of continuing segregation to 9-0 in favor of ending it – was only possible in earlier and less fractious times. 

All that may be true. But one lesson that we seemed not to have learned is that the types of people we appoint to the Court these days – lawyers with brilliant academic records but no experience in the courtroom or at the deal table. They have almost no exposure to real clients and their personal and financial and family problems, frustrations, emotions, and terrors. They have spent no time practicing law in the local and personal way most lawyers practice it. They have not held high office or even minor elective office. Their careers show no connection to the popular will. These are hardly likely individuals able to fashion or be part of reasonable political compromises. John Marshall was Secretary of State before being Chief Justice, as was Charles Evans Hughes, who also served as Governor of New York. Earl Warren was a popular four-time Governor of California and nominee for Vice President on the Republican ticket in 1948. Hughes’ predecessor was former President William Howard Taft, while Warren‘s predecessor was former congressman and former Secretary of the Treasury Fred Vinson. If one wants political acumen, leadership, and results, then one should appoint people whose track record suggests they are likely to achieve that. That excludes the present Court in total.

4. Do we owe this opinion to the tragedy of Justice Ginsburg’s death? 

It might be more accurate to say we owe the opinion to the selfishness of Justice Ginsburg in the face of her inevitable death. Justice Ginsburg had cancer, a fact she was obviously aware of, and knew that it had returned. Instead of choosing to resign and let a Democratic President appoint a Democratic replacement, she stayed on. She suffered not only from pancreatic cancer, the deadliest major cancer, but from the egomania of so many in authority who feel themselves irreplaceable on the one hand, and glory in their position on the other. The better question is: did it make any difference? 

A less selfish Ginsburg would have bought time. With a Democratic replacement, the Court would likely have reached a 5-4 decision to allow the Mississippi law barring abortions after 15 weeks to stand, but not an overrule of Roe, yet. That is essentially the position that Chief Justice Roberts argued for, and with more support, would be the majority opinion. In that way, Roe would have stood. The question is how long it would have stood. Probably only until the next, more full-blooded attack, knocking abortion rights from 15 weeks to 10 weeks or 5 weeks or 15 days or 15 minutes. If that next decision came before any new vacancy in the conservative majority, Roe would be gone. If there was such a vacancy, and a Democratic President was allowed to pick a new justice – a choice not allowed to President Obama by a craven Republican Senate that said that choosing a new justice two years from election was verboten to Democratic nominees but choosing one several weeks out in the form of Amy Coney Barrett was allowed for Republicans – the result may have been radically different. 

However, in modern America, geriatrics in power – from Senators Grassley (88) to Shelby (88) to Inhofe (87) to Leahy (83) and Feinstein (89) to members of Congress like Pelosi (82), Clyburn (81) and Price (81) to Presidential candidates from Trump to Hillary Clinton to Biden – have decided that, rather than enjoy their retirement years with their grandchildren, they should run the country. Given that, it’s hardly surprising that an apparently not very healthy Scalia died in office, Justice Stevens waited until he was 90 to leave the Court, and a late-stage pancreatic cancer victim like Ruth Bader Ginsburg refused to leave the bench alive. The opening here for a better result was slim, but Justice Ginsburg shut the door on such a possibility.

5. Isn’t the Constitution a moral document that ought to be decided by what is the right thing, not just the legal thing? 

Of course, it is. The Constitution is firmly a product of the morally driven 17th and 18th century Enlightenment. But it is also legal document and a political document, both also rooted in the Enlightenment, and each occasionally at odds with each other.

Both sides to the argument, liberal and conservative, are often heard to deny the moral nature of the Constitution just as, when convenient, they embrace it. The conservatives look to freedom, the liberals to equality, the conservatives to contract and capitalism, the liberals to protection of minorities and inclusion. The Constitution could hardly be made sense of without understanding that decisions stopping corporal punishment, whipping, executing children, and keeping prisoners in barbaric conditions are rooted in the prevention of cruelty. And what is cruelty other than a moral notion? Similarly with the protection of individuals’ personal property being free of unreasonable search and seizure, or the rights to speech and press when discussing text on the Internet. 

There is morality behind the Constitution, but it is a blended morality, mixed with politics, where the courts were traditionally labeled “the least dangerous branch.” It is politics, not law or morality, that suggests that courts should grant deference to the legislature and give some license to the executive to effectively run the country. Morality must share the stage with law, follow the Anglo-American tradition of legal reasoning and analysis, respect for but not the worship of precedent, embrace the fine points of statutory interpretation and legislative intent, and generally accept all the rest that make up the modern legal system.

None of that necessarily tells with certainty if and when a woman has the right to an abortion, or at least some right under some conditions for some period of time. However, it does tell us that the courts have the discretion, perhaps even the responsibility, to consider those issues. The idea that Roe v. Wade should never have existed because intruding into the reproductive rights of women is something that only legislatures should do is to make a radical political judgment that it is hardly in concert with the Constitution. In fact, it is a radical flight from Constitutional morality, antithetical to the very nature of what the U.S. Constitution is.

6. Shouldn’t we settle for exact Constitutional provisions, analyze them separately and then reach distinct decisions based on what each individual phrase and sentence says?

The thrust of the majority in Dobbs, and the Court since the 1970s when the conservatives took control, is that the Constitution is a set of distinct matters, separately debated before enacted, subject to individual and unique scrutiny, and only marginally related. Put a different way, there is nothing uniting them, no overarching instruction manual, no general theory, or purpose. This, of course, is false. Consider the Preamble.

The Preamble to the Constitution, starting with the famous phrase “We the People”, specifically lists the reasons for the Constitution, the reasons it is “ordained and established “. What are these purposes? They are “in Order to form a more perfect Union, establish Justice, ensure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” In short, together they are an instruction manual, a roadmap, a guide to what needs to be done when language is vague, incomplete, inconsistent, intemperate, obsolete, ambiguous, contradictory, or in any other way fails to keep up with the goals: beginning with establishing a more perfect union and establishing Justice. 

Yet, inherent in the windy majority opinion, is the view that if a right is not specifically stated in the Constitution, it does not exist. No other grounds exist to assign a right or a benefit or a privilege. This view is belied by the Preamble itself. The first two listings -establishing a more perfect union and justice – allow the Court, I would suggest requiring the Court, to frame every decision in that light. Grumbling that language is not clear enough when that language was written over 200 years ago and was fashioned in general terms to last for the ages is a moral failing of the Court today, not one due to the founders. In fact, one would have thought those same founders, and there is the second generation after the Civil War with the enactment of the 13th, 14th and 15th Amendments abolishing slavery and expanding equality and due process, that had the basic common sense to understand that a document meant to serve the ages should have sufficient general language to meet the needs of the ages. That would include, no doubt, medical procedures such as abortion. Theirs was an understanding prior to antibiotics, anesthesia, modern surgery, ERs, ICUs, sterilization, and drug and gene therapy, let alone Plan B, the morning after pill. It is of some note that, in that the founders were fathers and not mothers, all male, white, property owners, and Christians, they nowhere stated that privileges and rights would be solely theirs, limited to members of their groups. It is only recently that this Court majority thinks it best that rights be frozen in place and that there be no flexibility or opportunity to see their expansion and growth from the 18th to the 21st century.

7. Did the Democrats and liberals allow a basic right to get away?

Once Roe came down in 1973, it was clear to one and all that the abortion issue was settled. No more organizing energy should be devoted to it, and it was time to move to other matters. That is, it was clear to one and all liberals, Democrats and those interested in women’s rights. It was not clear to evangelicals and conservative Catholics. This allowed opportunistic politicians on the right to use the issue for a half century to generate money and votes, sweep state legislatures and alter the American political landscape. One might make the argument all American politics and history have been transformed through the lens of Roe. While the Democratic Party was the clear majority party from the 1930s through the 1970s, once Roe arrived, state legislature after state legislature, house and senate seat after house and senate seat, cascading governors’ mansions, and presidential elections, with increasing regularity, veered toward and remained with the political right. 

In fairness, it is difficult to exert one’s base to rally for something they already have, namely abortion rights. That said, the religious right and their political agents changed the vote, changed the officeholders, and changed the courts. It has now eradicated Roe. For women and liberals, this is a right that got away.

8. Was Roe v. Wade a good decision in the first place? 

The answer is legally, certainly no; politically, probably yes; and morally, almost certainly yes, at least as modified in 1992 with Planned Parenthood v. Casey. Roe was a case that grew out of an expanded view of privacy, the basic principle that holds that each of us has the right against intrusion by the state, snooping by our neighbors, exploitation by outsiders. To use the phrase of Justice Brandeis, it is “the right to be left alone “. 

The issue for the Supreme Court was just how far a distance the right to abortion lies from traditional notions of privacy. We expect the unelected courts to proceed carefully, slowly, and with great care. We expect that caution and deference to an even greater extent when any decision by the Court forecloses democracy, that is, it prevents any further majoritarian action. Certainly, there are times when it seems to be absolutely right for strong court action to protect minorities who are unlikely to succeed in ever being heard – religious and racial  minorities, gays, the disabled, discrete and insular minorities, to use Chief Justice Stone’s phrase – but it was far from clear that women, not only a majority but bolstered by a large number of allies among men, were in need of such protection. 

Put differently, the autonomy that normally serves as the basis for privacy rights is more problematic when another life, fully or partially or potentially human, is also involved. The protection of the fetus in other ways has not been thought a problem, as when the FDA banned such drugs as thalidomide, which causes birth defects. Roe was a dramatic step away from state regulations. From a purely legal point, a very dramatic step. That said, such steps often involve large moral crises unsolved or exacerbated by the political system – again, in 1954, Brown v. Bd. of Education ended segregation when the political system failed miserably to do so – and the fact that the actual Roe decision by Justice Blackmon is, by any measure, weakly reasoned, does not mean it could not be better argued, that it could not be fixed. 

Moreover, the Constitution is not merely a technical legal rule book. It has always involved ethical judgments, political sensibilities, and the last moral appeal for each of us living in America. Women were dying daily from illegal abortions. While no accurate statics exist that accurately measure such deaths, and while earlier women likely died in the thousands annually from illegal abortions, the estimates of maternal deaths prior to Roe are usually estimated to be in the high hundreds per year. Those who survived were often subject to criminal prosecution. Lives were shattered, families destroyed, careers ruined, happiness erased. The first principle of the women’s movement – women have the right to their own body – was ignored. A political environment largely dominated by men, giving outsized deference to religion, and ignoring the basic health and welfare of half of the population, would be one of the reasons that intervention by the courts would be not only be reasonable, but it may also be necessary. There is a conservative theory, with little or no support in the Constitutional text, that objectively, privacy should not be a matter of Supreme Court concern. However, in any case, the Constitution is not objective. It is intended to make America a better place, to lead it to become a more perfect union. If Roe furthered that, then it was rightly decided. 

9. How should we understand the Dobbs opinion?

A mistake made typically by first year law students, and more permanently by the public, is to assume the opinion they read by a judge is like an article written by an expert in a learned field, whether that field is science or history or medicine. It isn’t. At its worst, it is more like a brief than a scholarly piece. A brief will often use almost any argument available to win a point. The argument may be factually or legally weak, belied by contrary evidence or precedent, or be logically untenable, but anything for the client. Inconvenient facts and law go unmentioned, contrary evidence is cursorily dismissed as biased or unreliable, and smoke and mirrors are as good as reason and logic if the reader is convinced. Just such a brief disguised as a decision is the majority opinion in Dobbs.

The full criticism is for another place and another day, but a brief look ought to reveal just what is going on with Justice Alito’s opinion. Consider a few examples. To begin, Alito doesn’t think women have relied on Roe, and reliance on a right is central to its continued justification. The reliance that did occur, according to Alito, is slight, below the level of the reliance interest in “cases involving property and contract rights”. This is an amazing view, shocking in its moral indifference, as for every single woman who had an abortion in one of the 33 states that banned abortion, Roe was directly and irrefutably a life-changing decision. Alito further uses 300- and 400-year-old science and dubious legal precedents to justify his analysis. For example, he cites a 17th century treatise discussing quickening – that is, the time when women first feel the movement of the fetus, once a reasonable way to gauge the status of a fetus, but now an in era of ultrasound, amniocentesis, chorionic villus sampling and an array of other diagnostics, worthless – to make medical judgments. He cites with approval an article in the 1732 edition of a journal called Gentleman’s Magazine to ascertain the legal and moral status of a woman and a fetus. He looks at 17th century criminal law of failed abortions to generalize about how we should treat abortions today – criminal law that at the time allowed witches to be burned and children at 13 to be executed for larceny, slaves to be kept and sold, and indigenous people to be robbed and murdered. Finally, Alito says that there is no sex discrimination with the abortion issue, as though abortion or giving birth can happen equally to a man and a woman.

All this looks like a brief, often a desperate brief, rather than a cogent and rational analysis. Such an analysis would put forward the current science and medical understanding, advance the legal precedents from the law that are convincing and abandon those that are not, and understand while the 17th and 18th century hardly recognized any rights and autonomy for women, it is far past time for us to do so today.

10. How is it that the two sides, conservative and liberal, see the Constitution so differently? That is, for a document fully available, in black and white, and written in straightforward English, how can people disagree so dramatically?

I want to make what some might see as an outrageous suggestion. We might recognize, as inevitably did the Greeks, that generally arguments arrive in two forms: arguments from reason and arguments from authority. Arguments from reason are subject to evidence, argument, theory, coherence, and connection to other things we believe, things ultimately provable, verifiable, falsifiable or in some way tied to a method to test their coherence, plausibility, and truth. Not only can our beliefs be wrong, and not only can we get them wrong, but we can also be made to realize that they are wrong and that we were mistaken. Reason has no pedigree, that is, there is no special place it originates. It has no loyalty to any group, person, religion, nationality, or prior way of thinking. It doesn’t even have loyalty to common sense, as any of us who have tried to make even a little sense of quantum mechanics would attest.

Arguments from authority are very different. They generally originate from some place, person or prophet, authority or God, legend or lore or text, or ideology or religion. They do not necessarily need to comport with either scientific reality or be consistent with other beliefs we have. That is, for example, they allow for miracles. They can be revealed through faith rather than empirical evidence. Those following such authority often exhibit greater complacency and assurance in their certainty than do the more skeptical and timid, who find reason carries with it an ongoing anxiety about falsification and theory failure.

What does any of this have to do with the Constitution? Everything. We could read the Constitution as holy text, the revealed word, representing all the wisdom we need, just as we, if we were so inclined, might think that of the Avesta or Hebrew Bible, the New Testament or Quran. We could also see it as a set of ideas in service to allowing a just and prosperous society. Those ideas are for us to reveal. When we read the Constitution, and we see general principles in favor of due process, equality, speech, press and religion liberties, and an array of other protections, do we look behind them, trying to ascertain why they are there, what are their purposes, what they are doing, and how they fit in the world today, or do we simply read them narrowly and literally to authorize direct conclusions? Put differently, how deferential should we be of the intentions and thoughts of a group of individuals wandering Philadelphia over 200 years ago as opposed to the full potential of the ideas themselves?

Take one example. The Fourth Amendment protects against unreasonable searches and seizures. It states that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…” For those who argue from authority, the Amendment means exactly what it says, no more and no less. For those who argue from reason, it is part of the edifice of protecting individual privacy and autonomy. That means, when leaving the house, there still exists an aura or shield of privacy that protects us in our daily affairs, whether in public, online, in social or sexual relations, or when facing pregnancy. The argument from authority, the holy writ text of the Constitution, is what motivates the conservatives, while the purpose and principles behind that Constitution, when seen in the light of reason, is what motivates liberals. Each come to the text with their own mindsets and with differing world views. That, not the Constitution, leads to different outcomes. 

11. Is the majority opinion dependent on lies by justices attempting to get confirmed?

There is a protest by the public and at least two senators, Susan Collins, and Joe Manchin, that two members of the majority had lied to them during the confirmation process. These Justices, Gorsuch and Kavanagh, like Souter and Black (and probably others) before them, were accused of being dishonest and misleading in their assurances. Those assurances amounted to a promise that they would follow established precedents, starting with Roe. (Souter was earlier accused of promises to ignore it, and then did the opposite). The protest, according to Senator Manchin, is this: “I trusted Justice Gorsuch and Justice Kavanagh when they testified under oath that they also believed Roe v. Wade was settled precedent and I am alarmed that they chose to reject the stability the ruling has provided for two generations of Americans”.

Does that matter? That is, what do private and nebulous assurances – “I believe in precedent”, but then who doesn’t – amount to? In 1937, Justice Black kept secret from President Roosevelt and then the Senate his membership in the KKK, which leaked weeks after his confirmation vote. What should we think of any of this, or of two members of this majority, Thomas and Kavanaugh, whose conduct in the past toward women might raise concerns given their participation in the most eventful decision involving women in half a century? We might think this: how did we choose, from the many possible highly qualified candidates, such compromised and imperfect candidates? 

But that is the wrong question. The real issue is why we have such an insane process in the first place. That process relies on a few advisers to the President, usually the Attorney General or White House Counsel, who suggest a few names from a narrow list of safe individuals, often colleagues, typically people with narrow experiences that match their own. The candidates’ impeccable academic records are used as an excuse not to look too closely at their records as human beings. They are then coached on how to maneuver past pesky questions that might inform the Senate and the public as to whether they have any particularly excellent or troubling qualities. They are then otherwise kept out of sight until after the confirmation. 

No one looks too closely or too hard at these nominees, as we saw from the success of the bland assurances from Kavanagh and Gorsuch and earlier from Alito or Roberts that they would follow precedent. Everyone usually follows precedent, but no one always follows it. There are cases and there are cases. Such assurances have never been real comfort and nothing good comes from an invincible reliance on such statements. Of course, they will generally follow precedent, and of course they will distinguish or overrule it when the law or the facts call for it. Did Gorsuch and Kavanagh do something wrong in misdirecting those begging to be misdirected? Maybe. But that is a small mark against them in the stony world of politics, ambition, power, and opportunity. 

12. Is having nine lifetime judges a good idea?

A term for life is too long an appointment and nine is too small a number. First, the lifelong appointment. It is justified on the very cynical grounds that anything short of a lifetime would either cause judges to pervert their own sense of justice because of a future job or feel insecure in their future employment because they have given up a promising career to be on the court. 

Both are palpably false. If someone wanted to support the course of justice, say in favor of a particular corporate interest or political pack, they could do so now and simply resign from the Court to become general counsel or some other high office with that interest. That has virtually never happened. As for their not finding a job at all, that is even more ridiculous, as former Supreme Court justices are treated as demigods within the profession. What is clear is that courts run by geriatrics – often out of touch with the currents of an incredibly fast-moving society and appointed by politicians a generation ago who no longer represent the fabric of present society – make for a ridiculous way to run a justice system. 

That is not new. In the 1970s there were still Franklin Roosevelt appointments, Justices Douglas and Black, nominated in the 1930s to overcome economic and legal issues. They were meant to address problems of social displacement, urbanization, economic development and governmental regulation of the post WWI era, before the advent of World War II and the postwar society, far removed from the electoral politics at the end of their career of women’s equality, civil rights, the Vietnam War, pollution, a fast-changing ethnic demographic, America as the dominant world power, and array of recent statutory and regulatory matters unseen and unheard of when the two were appointed. Why should those, now perhaps in nursing homes or the grave, who voted in 1936 for Franklin Roosevelt, dictate the choice of Supreme Court Justices for their children and grandchildren? If democracy means anything, it means staying in close touch with the democratic electorate.

Similarly now, with Justice Thomas, appointed in 1991 by George H. W. Bush, a President elected before the country decided to vote for Bill Clinton twice, George W. Bush twice, Barack Obama twice, Donald Trump and Joe Biden. Looked at another way, no one under 51 today was eligible to have voted in the election that brought George H. W. Bush to office. That is, for more than half of today’s electorate, neither their voice nor their consent was involved. Why should such an ancient appointment count for more than 10% of the court? 

It is worse than that. Without being accused of being ageist, I might suggest, as someone himself in his 70s, that there comes a time when complex judgments, heavy workload, enormous reading, and comprehension demands, and the most cognitively challenging problems are set aside for those younger. It would be incredible if we left all those important decisions to people we otherwise see in their retirement, sometimes in their dotage, but certainly past their intellectual and professional primes. In one of the rare glimpses of intellectual modesty, Justice Holmes (who retired at 90) admitted to Justice Brandeis (who retired at 82) that he had grave difficulties understanding the new barrage of regulatory laws that were coming into place after World War I, the complex economic picture that was very different from the New England past he knew as a youth before the Civil War, and the role of a greatly expanded federal government and its interaction with its population and the state governments. That is the problem with the aging of the Court. 

There is some counter to this. The age of recent appointments has been growing younger in order. This is to accentuate the influence of departing Presidents on the future, not unlike the wealthy attempting control through long ranging and exacting trusts used to direct the conduct of their descendants. The powerful and the wealthy try to rule us from the grave. 

This strategy has the obvious disadvantage of disqualifying many of the best and most experienced candidates, as they may only serve for 10 or 15 years because of age. Nevertheless, as there is no end time for tenure, age remains a problem. Justice Breyer is just retiring at the age of 83, while Justice Thomas is 74. More recently, Justice Stevens retired at 90, Justice Kennedy retired at 82, and Justices Scalia and Ginsburg died in office at 79 and 87. Younger, healthier, more vibrant, and energetic justices these were not.

As to the number of justices, giving so much power to so few for so long is indefensible. In 1810, with an incredibly smaller workload, at times hardly any cases at all, and a much smaller country (7 million then to 332 million today), the Supreme Court consisted of five justices, more than half of what we have now. As to other important courts in the world, the International Criminal Court, again with an extremely small if important caseload, consists of 18 justices serving nine-year terms, while the International Court of Justice in the Hague consists of 15 judges, also serving nine-year terms. The Supreme Court of the United Kingdom, with a population of less than 20% that of the United States, consists of 12 judges. By ceding so few judges so much power, every appointment becomes almost apocalyptic, every individual becomes their own center of power. That power is unrealized by any other elected official in the democratic world.

13. What should we make of the 200 pages of opinions?

The opinion is too long, too convoluted, too heavily referenced, too arcane, and too difficult for it to achieve one of its primary purposes: namely, to inform the public, the electorate, other judges, other political leaders, and the world for the basic holding and the basic justification for that holding. It is not intended to be read. It is not meant to be clear. Its length is a weapon. 213 pages.

We might take some wisdom here in the best decision of the Supreme Court in the last 100 years, perhaps ever, Brown v. Bd. of Education. (As an aside, we might note that the proto-conservative nominee for the Supreme Court, Robert Bork in 1987, viewed Brown with the same skepticism, even contempt, that Justice Thomas holds against the privacy cases, and for essentially the same reasons. Bork saw Brown as a tragic mistake, without support in the language of the Constitution. He failed Senate approval 58-42). There the Court went against 300 years of history of segregation and the clear language of a constitution that guaranteed equality – and separate but equal by its language is, if anything, equal – to overturn, 9-0, segregated schools. One piece of wisdom is the length: 8 pages, clear, without arcane references, there to instruct, convince, and mainly to educate. Otherwise, they simply could have said “Reversed”. 

The other piece is part of why they did what they did. The opinion of Chief Justice Warren for the Court in Brown puts education at the center of American democracy. “Today, education is perhaps the most important function of state and local governments”. The reference was to schoolchildren, but the principle applies universally. The experiment of democracy requires an educated electorate, one that makes not necessarily the best decisions, but one whose results are at least minimally reasonable, fairly equitable, and mostly just. Long-winded nonsense dressed up as scholarly history does not advance that experiment. 

But then, nothing in the Court’s opinion seems interested in the reasonable, the equitable or the just.