After Dobbs, We Have to Make the Court Political Again

Confronting the power of the Supreme Court

By David Purucker

On June 24, the Supreme Court struck down Roe v. Wade. In a 5-4 ruling, the court’s conservative majority ruled that the Constitution does not guarantee a right to an abortion. The decision will now be pushed to the states, 13 of which have “trigger laws” to immediately place draconian regulations on abortion, including heavy fines and long jail sentences for people who receive abortions and for those who assist them.

The conservative movement is now, predictably, calling for a national ban on abortion. But not just abortion — in a concurring opinion to the ruling, Dobbs v. Jackson Women’s Health Organization, Justice Clarence Thomas argued that the legal basis of past court decisions could also be invalidated, including rulings that established a right to privacy and contraception, sexual freedom, and same-sex marriage.

In the face of this sweeping legal attack on our freedoms, how should liberals and progressives respond? 

Popular opinion is overwhelmingly opposed to the court’s hard-right turn. Eighty-five percent of American voters think abortion should be legal in some or all circumstances, 78 percent consider birth control to be a basic part of women’s health care, and 70 percent support the right of same-sex couples to get married, according to surveys from Gallup and Power to Decide. But indifference to the public is nothing new for the Supreme Court.

For most of American history, court justices have acted to inhibit democratic reforms and protect privilege. The Lochner Court of the early 20th century applied the 14th Amendment’s due process clause to invalidate state and federal laws to regulate child labor, limit the length of the workday, and establish a minimum wage. In the 1930s, the court acted to strike down or weaken key parts of FDR’s enormously popular New Deal agenda, until the president threatened to add five more justices to the bench. More recently, in Bush v. Gore (2000), the court stole the presidential election for George W. Bush by stopping a statewide recount of ballots in Florida, which (as later analysis indicated) would have revealed a victory for Democratic candidate Al Gore.

In the face of this reactionary judiciary, today’s Democrats tell us, yet again, to vote harder, so that maybe a Democratic president will get a chance to replace multiple justices and reestablish a liberal court majority. But if we have to wait for this generation of justices to die or retire, we may be stuck waiting for a long time.

Venerating these institutions will get us nowhere. What is instead needed is a political attack on the court itself. What would that look like? As Princeton historian Matt Karp recently argued in Jacobin magazine, we can learn something from the radicalism of Abraham Lincoln and the early Republican Party.

The court’s infamous 1857 decision in Dred Scott v. Sanford held that Black Americans “had no rights which the white man was bound to respect,” and that the federal government could do nothing to restrict the expansion of slavery into new states on the frontier. The antislavery Republicans immediately denounced, not only this decision but the very idea that judges could decide burning political questions in this way.

As Abraham Lincoln put it in his 1860 inaugural address: 

[I]f the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made . . . the people will have ceased, to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal.

The Republicans, once in power, moved quickly to reform the judiciary. But more importantly, perhaps, Lincoln and his party simply ignored the court. In 1862, the Republicans passed legislation to ban slavery in federal territories, and Lincoln’s Emancipation Proclamation of 1863 freed slaves in secessionist Confederate states. Both directly repudiated the Dred Scott decision and left the court intimidated and politically weak through the era of emancipation and Reconstruction— ”the greatest democratic expansion in US political history,” as Karp notes.

Today, we hear calls to donate to abortion funds, struggle in blue state legislatures for laws to protect abortion, and engage in civil disobedience to protect those seeking abortions in red states. All are necessary. But at the national level, our freedoms will continue to be endangered until we challenge the institutions that are eroding them.

Voting isn’t enough. To protect abortion, and our democracy, we must confront the unaccountable power of the Supreme Court.

David Purucker is a Ph.D. student in the Department of Sociology at the University of Oregon.

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