Thoughts on That Leak, and Nullification
Hooooo boy.
So, as most of the people reading this presumably know, Politico just published what purports to be a draft opinion, written by one Samuel Alito, that would overturn Roe v. Wade in its entirety. This is basically unprecedented? There have been rumors about Supreme Court deliberations before, but to the best of my knowledge never a draft opinion like this. We don’t know who leaked it, and of course we don’t know that this or anything like it will be the final opinion.
But I’m certainly not holding my breath, because I’ve been assuming this would be the outcome since probably before the Court granted cert in the Dobbs case. (Cf. this blog’s inaugural post, about how nothing is safe from this Supreme Court.) Indeed, in a sense I don’t even regard this as “news;” we always knew that this was overwhelmingly likely to happen, and that’s still all we actually know.
That doesn’t mean it’s not depressing, though.
If anything the real “news” is about the reasoning, which… is very broad. It’s not entirely new; the core comes, so it seems, from a 1997 case about assisted suicide. The Court held there was no constitutionally protected right to assisted suicide, and in doing so it said that the Fourteenth Amendment protects only those unenumerated rights that are “deeply rooted in the nation’s history.” This was done to stop the expansion of the unenumerated rights doctrine; what’s new is using it to overrule a right that the Court has already acknowledged. If the Court is going to do that sort of thing, there’s no apparent reason why it wouldn’t also come for Griswold v. Connecticut (right to contraception) as well as Obergefell v. Hodges (gay marriage) and Lawrence v. Texas (gay sex).
People on the left are going to call for court-packing over this, and they should. I’ve been saying we need to pack the Court since 2017! But you know, the more I think about the state of things, the more I think that court-packing is almost… beside the point? The thing is our problem isn’t really the Supreme Court; it’s kind of epiphenomenal, and the real problems run much deeper.
Back in law school I always had trouble coming up with a clear and specific focus for my scholarly agenda. The things I wanted to write would amount, basically, to “virtually all constitutional law these days is garbage!” The thinking I’ve been doing more recently about the political philosophy side of things has helped me see what ties all of those seemingly scattered observations together. It’s not an accident that all our constitutional doctrines are wrong, wrong to the point of being nullificationist even.
The thing is that the Second American Republic is a lie, and has been a lie from the very beginning. The Fourteenth Amendment promises free and equal citizenship, but the structure of our federal union is not predicated on equal citizenship. Our government is, you might say, constitutionally incapable of honoring that promise. It was in that sense thoroughly unsurprising that the Court immediately gutted the Amendment’s major provisions. (Indeed that supplies another reason why the Glucksberg rule is nullificationist! Not only does it inherently deprive the Fourteenth Amendment of any transformative impact, which an act imposing for the very first time a federal constitutional ethos of human rights on the states should plainly be expected to have. But there was never any attempt, in the immediate wake of its passage, to work through the consequences of the transformation in anything like good faith. The first time anyone tried to take it seriously was the Warren Court — which is of course why conservatives hated the Warren Court — and it would therefore be rather surprising if any of the implications of taking it seriously were any more “deeply rooted” than that.)
And the incapacity continues to this day; indeed today’s Court is a spectacular example of it. The Senate Republican majority that refused to hear Merrick Garland’s nomination had the support only of a minority. The “president” who appointed Neil Gorsuch to that seat, and then Kavanaugh and Barrett to replace two more votes in favor of Roe, had the support only of a minority. The fact that these people had the power to shape the Court the way they did, and therefore the fact that the Court has the shape it does, simply and necessarily means that this country is not a real democracy, and — for those of us who think these things run together — that our government is essentially illegitimate.
And this lack of true democracy continues to haunt us! Indeed the Court’s power to destroy rests upon it in continuing fashion. Congress could easily brush aside the minoritarian, nullificationist Court, if it wanted to. But it cannot want to! Not with the Senate constituted as it is. I have almost reached the point where I do not even blame the likes of Joe Manchin for the government’s passivity in the face of this threat. Not because it is not Manchin’s fault, of course; it assuredly is. But it is not Manchin’s fault that he is in a position to make a difference. That blame lies squarely with our Constitution, which relates us to one another not as equal citizens but as citizens of states, an utterly inadequate basis for collective self-government.
The point then is not even exactly that court-packing would not be enough. If we found ourselves in a world where the Congress had the will to pack the Court, it would presumably also muster itself to work on some of those same deeper issues. But it will not, barring a miracle, not until the very basis of the American state is remade from the ground up.
