The Mississippi abortion case will owe its legacy more to Bush v. Gore and Plessy v. Ferguson than to Roe v. Wade

                                                                                                                                                  Dec. 4, 2021

Listening to the oral arguments in the Mississippi abortion case was instructive. It allowed me to have a more nuanced sense of whether the Supreme Court is an entrenched political body that is to be feared, not trusted. 

I have felt that to the core ever since the Bush v. Gore opinion in 2000 that hoisted George Bush into the presidency, deploying the Equal Protection clause to contrive election law reasoning that had never been used before, and has almost never been used as precedent since. The Court shamelessly predicted it wouldn’t. 

I’ve tried to keep from concluding that the Court is a bastion of political conservatism that decides the hottest button issues in ways that purport deviously to be fair. The conservative legal community and the justices who emerge with the “seal of right” from The Federalist Society, which self-describes “as a group of conservatives and libertarians dedicated to reforming the current legal order” now control the legal order. In its 40 years in existence, The Federalist Society pulls the strings behind the processes for choosing lifetime justices, and therefore for the Court itself and for most of the lower courts in the federal system. 

Still, I take no comfort (why would I?) in seeing it all coming since 2000. I continue to resist the obvious conclusion that the right has just taken over the levers of government – law enforcement, the courts, and the presidency under Trump – along with the hearts and minds of 40% of the American public, the unbridled mudslinging and divisive vitriol, and huge swaths of regions in the country, and their state legislatures and governors’ offices. Before I succumb to going into full counter-revolutionary fervor with fist in the air, I keep needing to re-examine what I see right before my eyes. 

Enter Wednesday’s oral arguments in Dobbs v. Jackson Women’s Health Organization, the Mississippi abortion case [you may want to check out the transcripts here]. 

The Mississippi Solicitor General Scott Stewart opened oral arguments with rhetorical guns blazing in defense of the fetus: “Roe v. Wade and Planned Parenthood v. Casey haunt our country. They have no basis in the Constitution. They have no home in our history or traditions. They've damaged the democratic process. They've poisoned the law. They've choked off compromise. For 50 years, they've kept this Court at the center of a political battle that it can never resolve. And 50 years on, they stand alone. Nowhere else does this Court recognize a right to end a human life.” 

Seemingly in the way of the fetus are Roe and Casey, which have anchored a woman’s right to an abortion to the Constitution. Together they serve as precedent (or “stare decisis”) for a woman’s liberty and privacy rights to choose how to deal with her pregnancy for about half of its duration. The presumption, if not the rule, is to not overrule precedent, because courts and society come to rely on precedent as they do a law. 

Seemingly in the way of precedent as our societal guardrails is the 1896 case of Plessy v. Ferguson, which even grade school kids are taught was the ignominious decision to create “separate but equal” schools to segregate blacks from whites. The Court majority then rationalized that the separate systems were ok because the black schools weren’t “a badge of inferiority.” 

As the same grade school kids know, though many may not quite appreciate, it took 58 years for a differently constituted Court, known as the Warren Court, to gingerly and unanimously issue the Brown v. Board of Education decision in 1954 that held “separate but equal” to be unconstitutional. The opinion, after 58 years of stasis, segregation and badges of inferiority well beyond the schools, unleashed a revolution in the U.S. not seen since the Civil War and not seen again until the viciously contested end of the Trump administration. 

The conundrum for a Court that is fair, non-partisan and not rigged by bedrock political allegiances is to find reasoned bases for either invoking precedent or overruling precedent. The conundrum for the rest of us is to discern between honest conservative legal thinking, on the one hand, and political conservatives fashioning clever judicial covers for deeply held political positions on the other hand. 

The Justices are no fools. Chief Justice Roberts was keenly aware of the festering societal perceptions of the Court’s illegitimacy in 2012 when he abandoned the conservative orthodoxy to hold key provisions the Affordable Care Act, often called Obamacare, constitutional. The thinking is he did that to overcome the stench left behind by Bush v. Gore, or simply put, to save the Court. 

Dozens of articles have been published, laying out the case that the Court’s legitimacy is teetering on the brink. [To cite a few, Is the Roberts Court Legitimate? from National Affairs Fall 2021 issue, Chief Justice Roberts’s Health Care Decision Disrobed: The Microfoundations of the Supreme Courts Legitimacy from the American Journal of Political Science in 2015, Chief Justice Roberts and the Legitimacy of the Judiciary from the Center for American Progress in 2020, The Lie About the Supreme Court Everyone Pretends to Believe: Justices love to proclaim their impartiality, all evidence to the contrary from the Atlantic this past September, and Critical Moment for Roe, and the Supreme Court's Legitimacy from The New York Times a few days after the oral arguments.]

Since Bush v. Gore, the Court’s legitimacy as a fair, non-partisan body has been further undercut by a judicial selection process that stripped then-President Obama from the opportunity to appoint Merrick Garland to the Court ostensibly because the vacancy surfaced within a year of the 2016 presidential election, and four years later allowed Barrett, Trump’s last of three Supreme Court picks, to join the Court eight days before election day 2020. Thousands of citizens had already voted in an election Trump would lose. 

There is little doubt that one goal in the right wing’s efforts in the Mississippi case to provide a fetus with a right to life commensurate with a woman’s right to choose an abortion is to do it without the appearance of impropriety. So the oral arguments need to look clean. 

The Mississippi Solicitor General brought up the 7-1 Plessy v. Ferguson decision first when he invoked the case, noting that the lone dissent recognized that the majority in creating “separate but equal” was wrong. 

Justice Barrett brought up Plessy and Brown as a paradigmatic illustration of precedent not being “an inexorable command.” 

Justice Kavanaugh was prepared with a litany of cases of overruled precedent, almost of which were cases in which the decisions reflected progressive advances in society – separate is not equal, the need for one person/one vote, the state’s authority to regulate business during the New Deal, Miranda warnings, defendants’ rights, and same sex marriage. He obviously chose cases in which the minority liberal justices and the public would have to agree that precedent sometimes needs to be overruled. Clever, but risky in that it left open the flank that limiting or ending a woman’s right to abortion is not a progressive advance for society. Then again, it is a monumental advance in a fetus’ right to life. 

The give and take turned to the importance of framing Plessy as a decision that was wrong when it was made in 1896. Both the conservative and the liberal justices seemed comfortable with that. 

It allowed Justice Kavanaugh to invoke a concept of “neutrality.” In effect, admit that the Court decision was always wrong and make it right. Ideal to eliminate Roe as wrong then and now. Justice Breyer seemed to agree that Plessy was wrong when it was decided because it relied on the misguided judgment that “separate but equal” was not “a badge of inferiority.” His thinking seemed to rely on the predicate that Roe and Casey were correct when decided, leaving Mississippi to have to argue what’s changed since to justify overruling it. Fifty years and no scientific breakthroughs, no changes in societal norms or attitudes, as with Plessy and Brown. Almost 60% of Americans consistently say abortion should be legal in all or most cases, according to a recent Pew Research Center survey. 

With the arguments seeming to veer toward a head-on collision of whether societal circumstances need to materially change before the Court should resort to overruling precedent, a lightbulb in Justice Alito’s brain lit up. If that’s right, he queried, what should the Court have done if Plessy were re-argued the year after its decision. Nothing would have changed societally in a year. 

When one of the lawyers for the Jackson Women's Health Organization evaded the set-up, Alito persisted. Were the experiences from 1896 to 1954 needed to realize that Plessy was wrongly decided? 

The lawyer caved and answered that because Plessy was wrong when it was decided it should have been overruled even one year later without the change of any societal circumstances. That answer was a tactical surrender and a potentially critically wrong answer in that it provides just the cover the conservative justices need to appear on the up and up when they overturn Roe and find a fetus to have rights too. The Court is being neutral by letting states (and the people, as they put it) decide among competing rights. 

I sensed as I listened and cringed that Breyer and the lawyers for the Jackson Women's Health Organization fell into a trap because they couldn’t say out loud that Plessy unfortunately was not obviously wrong to the society of the era when it was decided. It would indeed take years and years of Jim Crow, of institutionally enforced “inferiority,” of restrictive covenants, and of colorline breakthroughs before the Warren Court would try to right 58 years, in fact centuries, of wrong. 

As Justice Sotomayor summarized, the Mississippi state legislature knew quite well what it was doing in taking on Roe head on. It noted, what we've all taken judicial notice of. The Supreme Court has three new justices. She asked rhetorically: "Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?" 

Mississippi’s final thoughts in rebuttal before the oral arguments ended were: “Justice Kavanaugh, you had it exactly right when you used the term “scrupulously neutral.” A woman has an interest, as does “the unborn child too whose life is at stake in all of these decisions.” 

He culminated by underscoring lone dissent in Plessy and said: “It took 58 years for this Court to recognize the truth of those realities (that the U.S. should not tolerate any caste systems) in a decision, and that was the greatest decision that this Court ever reached. We're running on 50 years of Roe. It is an egregiously wrong decision that has inflicted tremendous damage on our country and will continue to do so and take enumerable human lives unless and until this Court overrules it.” 

Yes, it has been 50 years since Roe. Yet, there is no indication it was wrong when decided other than in the minds of those whose political and religious indoctrinations tell them it was. That hasn’t changed. What has changed is the composition of the Supreme Court and the other federal courts. 

That leaves the courts to be feared, not trusted.

####