What Hasn't Been Said About Roe

What this decision portends for America going forward - and why the Democrats are deeply fearful

Unlike some of my friends on Substack, I often won’t get around to writing about an issue until after seemingly everything’s already been said that’s worth saying - and a lot that was better left unsaid. This leaves me - at best of times - to the task of picking through the party residue and looking for what hasn’t yet been said. It also helps me in understanding an issue perhaps a little more thoroughly when I finally do get around to writing something.

Maybe that helps. I try to keep Everything’s All Right fresh and somewhat original, though I often borrow off the efforts of others. If you haven’t read Glenn Greenwald’s excellent discussion yet, he absolutely nails the constitutional framework of the Dobbs draft decision and the discussion we should have been having all along. Peter Venetoklis’ Roots of Liberty also does a standup job with Legislative Abdication. I’d also recommend el gato malo’s (Bad Cattitude) roe, roe, roe your court:

it should never have been decided by judges to begin with. it is neither the place nor purview of the judiciary to establish our social norms, morals, and mores.

What you won’t find in any of these essays is the author’s personal opinion on abortion. Because it’s not relevant to Dobbs and it’s not relevant to what the Supreme Court should be (and should not be) doing. The Supreme Court was never intended to be a legislature of last resort. Nor even a court of last resort. The Constitution limited the authorities of all three branches, including the Judicial (under Article III). The Court isn’t intended to achieve by judicial order that which you can’t convince a legislature to do - no matter how passionate your opinion.

But since the Roe precedent, the Democrats have realized they don’t have to win legislative majorities, they don’t have to convince regular citizens of the value of their propositions. They can achieve their policy aims through judicial fiat - which is unappealable at any level. And those decisions are nationally binding - take that, hayseeds in Flyover Country! For a full treatment of what activism on the Court looks like, I recommend How to Spot Judicial Activism: Three Recent Examples. Democrats take this as a How To manual. Even under the “conservative” Roberts court, gay marriage was sanctified as a “right” and Obamacare was re-written by Roberts himself to find legal traction.

Sure, Democrats have had to win the occasional presidency, just to replace their activist majority. But what happens when one of these activists goes on to the great courtroom in the sky with a Republican in the oval? Just that happened with the passing of Ruth Bader Ginsburg under Trump - replaced by Amy Coney Barrett, giving the Court a 5-3-1 makeup (Roberts has made himself worthlessly vacillating and unpredictable). With only three reliably activist jurists, the Court stands to return sharply to its original construction. Someday I’ll have to address the vast disappointment that is John Roberts, but not today.

Ironically, Ginsburg herself was not a fan of Roe -

“Roe v. Wade, in contrast, invited no dialogue with legislators. Instead, it seemed entirely to remove the ball from the legislators’ court. In 1973, when Roe v. Wade was issued, abortion law was in a state of change across the nation. As the Supreme Court itself noted, there was a marked trend in state legislatures ‘toward liberalization of abortion statutes.’ ”

But with all that said, I have no doubt how Ginsburg would have come down on Dobbs. Don’t look for consistency in jurisprudence among the activists - she would have found a way to thread the needle - I’ve read a bunch of her arguments.

Make no mistake on this, the stakes couldn’t be higher. Alito’s decision includes the rejoinder:

“And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

But all that says is that Dobbs itself cannot be used to justify striking down any other poorly-constructed “rights”. What Alito cannot rejoin us from noticing: stare decisis - as some uber-arching, irrevocable standard - is no longer controlling. Not on this Court. Prior decisions that cannot stand up to scrutiny will be revisited - and revised. And Alito’s 95-page opinion is a tour de force for rejecting stare decisis on both Roe and Casey.

That, and this ain’t the Warren, Burger or Rhenquist court anymore. It’s not even the Roberts court anymore (if there ever was such a thing)! This is now the Alito Court and you can bet state AGs across the land are looking at all kinds of prior garbage can decisions to re-litigate.

To borrow a quote from Joe Biden : “…this is a big [effing] deal!” Indeed it is.

And this is the real reason for the Democrats’ histrionics. Because Dobbs puts everything else at risk too. Because a 5-3-1 court that has shown willingness to toss stare decisis (albeit with eye-straining analysis) could re-visit anything. Moreover, the days of getting a court to legislate from the bench are over.

So it’s about Roe but it’s also about much more than Roe.

Now to be sure, Roe occupies a supreme psychological value among the Left that is "total", worthy of defending like the gates of Stalingrad in 1942. This "existentialist" treatment of the issue has been exported now to every issue in the Democrat playbook: the environment, the border, taxes, guns, health care, even grooming young children. Find a sympathetic federal judge and get your way - legislatures, governors, presidents - the Constitution itself - be damned. But erase this foundational "truth" of Roe and you knock the legs out from under a great many Democrat ideas. Nothing is sacred. If they can’t find refuge in a sympathetic Supreme Court, they’re positively doomed! And they know it.

I’ll personally be thrilled to read the Biden administration’s “challenge” to this opinion, when it’s published. We’re assured by spokespersons that they’re working feverishly on it. But how exactly does the Court respond to a presidential “challenge” to their ruling? I have a recommendation:

I sincerely hope the Court holds to this opinion while the Democrats threaten to “rain destruction” upon the Court. Surely Alito, et al, understood the fullest implications of this decision (and I’m sure that’s why it was leaked, most likely by a Roe sympathizer on the Court).

They need to hold fast and show the bravery of Colonel Anthony Clement "Nuts" McAuliffe. They’ll need it.