I keep thinking about the penultimate paragraph of Samuel Alito’s ruling in Dobbs v. Jackson, the case that overthrew Roe v. Wade. After pages and pages and pages of explaining why Roe was wrongly decided and why states have an interest in protecting fetal life that outweighs any possible Constitutional requirement to protect women’s autonomy, Alito throws up his hands and says: Hey we’re just applying the law here! Whatever happens happens!
Well. Sort of. This is what he says:
We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision. We can only do our job, which is to interpret the law, apply longstanding principles of stare decisis, and decide this case accordingly.
This is hard to believe. It’s a pretense of judicial modesty, a fig leaf for the radical act that has just been committed. It suggests that Alito has no interest in what the results of his ruling will be, only that the ruling itself conforms to what he believes the law requires.
Is that remotely credible?
I don’t think so. We know that Alito despised Roe long before he arrived at the court.
Here’s the New York Times:
In the spring of 1985, a 35-year-old lawyer in the Justice Department, Samuel A. Alito Jr., cautioned the Reagan administration against mounting a frontal assault on Roe v. Wade, the landmark ruling that declared a constitutional right to abortion. The Supreme Court was not ready to overturn it, he said, so urging it to do so could backfire.
In a memo offering advice on two pending cases that challenged state laws regulating abortion, Mr. Alito advocated focusing on a more incremental argument: The court should uphold the regulations as reasonable. That strategy would “advance the goals of bringing about the eventual overruling of Roe v. Wade and, in the meantime, of mitigating its effects.”
Alito concludes his demolition of Roe, then, with an act of what can only be described as “ostentatious coyness.”
This kind of thing happens all the time. One odd thing about liberal democracy is that it compels Americans not just to advocate for whatever cause they happen to favor, but to suggest that whatever process they favor for getting there just happens to be objective and disinterested and oh, hey, it just happens to produce the outcome I favor. Sometimes we even call this process the “rule of law.”
The flip side, though, is that when the outcomes change, so do our opinions about the process. Take the opening paragraph of a recent Eugene Robinson column in the Washington Post:
This isn’t your country anymore. You are now governed by a secretive and unaccountable junta in long black robes, and there are going to be some changes around here.
What’s striking about this language is that it mirrors decades and decades of right-wing complaints about “judicial tyranny” that — somehow — have largely disappeared from public view now that conservatives have a 6-3 supermajority on the court. It’s tyranny when you’re running things; it’s democracy when I am.
Process is at the heart of a lot of lefty complaints about the current Supreme Court. It’s not just that the court is producing bad rulings, Dems and their allies say. It’s that the the conservative majority was ill-gotten. That’s not entirely right, though, as Jonathan Chait points out:
Many liberals have taken to describing the Court’s current makeup as the result of one or more “stolen” seats. This description is misleading. The right won its generational control of the Courts according to the rules of the game. The problem is the rules keep changing, and the rules are stupid.
The two parties compete for control of the Court, which is determined by two overriding factors: whose appointees die in office when and whose jurists strategically time their retirements more effectively.
Because Republican justices have been both less susceptible to illness in their old age and more committed to their party’s legal cause, their party has won the game. Democrats have won five of the past eight presidential elections, but Republicans have appointed six of the nine justices and 16 of the past 20.
This is, I think, a bad process. But it’s also true that we’re complaining about that process because it’s delivering outcomes we hate.
The court isn’t the only place this happens. The filibuster in the Senate can be described in almost mystical terms of “preserving the rights of the minority” and that it just so happens to result in the policy outcomes favored by its most-fervent defenders is just a side benefit.
Where am I going with this? Not sure exactly — I’m just noodling here, frankly. We need process, of course, because otherwise doing things together is nearly impossible: We’d be drowned in chaos. And ideally, the process is neutral with respect to outcomes so that we can hash out the things we need to hash out without a thumb on the scale. But it doesn’t really work out that way. We’re all trying to get our thumbs on the scale, and we all resent it when the other guy gets his thumb on the scale. And our fights about the outcomes become fights about process. It’s a way of fighting about what we think is good without fighting about what we think is good. That’s weird.
Welcome to my Substack
This is the first post of the Joel Mathis Substack, and honestly this is an experiment that may or may not last. A couple of points here:
* This is not a business.
* This will always be free.
* It may be a rambling mess at times because I’m trying to work out my thoughts here, not necessarily make a case. I want the right to be wrong here occasionally.
* I’d love for you to sign up and make comments. Conversation is good. And my comment policy is: Disagree! But don’t piss me off. You’re a guest in my living room. Act accordingly.
We’ll see if this works. And if not, nothing’s lost.