An End to the Liberal Romance With Courts

There is a moment in a Seinfeld episode about abortion that has always nagged at me. The plot pokes fun at crusaders for and against abortion rights, but it has one moment of painful earnestness, where an anti-abortion restaurant owner asks Elaine what gives her the right to disagree with his stance on abortion, and she replies, “The Supreme Court gives me the right to do that!”

The exchange doesn’t quite track – it’s not clear if the writers meant to have Elaine say the Court gives her the right to disagree on abortion, which is wrong (that would be the First Amendment), or the right to have an abortion. But the sour note, to me, has always been the reverence in her voice as she invokes the Court’s authority. The character is not merely making a point about jurisprudence. She is citing the Supreme Court as the ultimate moral arbiter.

The forthcoming demise of Roe v. Wade should dispel an illusion. Americans — liberals in particular, and boomers especially — have been suffering from a misplaced faith in the Supreme Court as the guarantor of rights and liberties. The right to abortion will not be secured by the occupants of a gleaming marble building. It will be the work of politics — activism, persuasion, and voting — that will control its fate.

For most of its history, the Supreme Court was a nakedly reactionary institution. The Court destroyed civil-rights laws in the 19th century and progressive economic legislation in the 20th, right up until midway through the New Deal. The Constitution, as interpreted by the Court, created rights for social and economic elites that Congress could not touch.

In the second half of the 20th century, the Court reversed its historic character and began handing down liberal rulings. Roe v. Wade was the apogee of the Warren and Burger Courts, and the era imprinted the image of a liberal Court on the public mind.

Even as control of the Court has passed into the hands of conservatives, who have turned it back into its historic role of creating conservative rights — to pollute, to carry weapons almost anywhere, to thwart a Medicaid expansion — rather than liberal ones, the old impression has endured. Last fall, a Gallup poll found Democrats and Republicans approved of the Court equally, while a Marquette University poll found it had slightly higher approval among Democrats — an extraordinary assessment of a body controlled by six conservatives, half of whom were chosen by Donald Trump.

Roe v. Wade has become affixed in the public conscience as a synonym for the right to abortion. But one can support the right to abortion without believing that right is protected by the Constitution. (I personally believe people have the right to abortion and all essential medical services, but I don’t think the Constitution is the source of the right either to abortion or to health care generally.) After Roe, the fight for abortion rights will revert to an openly political struggle. The Court is not ending the abortion debate. It is throwing it open.

In this new phase, abortion-rights supporters have the advantage of broad public support. If (and when) Roe is overturned, as polling analyst Ariel Edwards-Levy notes, only about one-fifth of Americans want their state to ban abortion completely. Another fifth favor restrictions short of a full ban, and just over half want their state to become a “safe haven” for women in other states who can’t access abortion.

It took a half-century of patient organizing for the conservative movement to finally kill Roe. That movement overcame numerous setbacks, some seemingly fatal, including the appointment of several Republican justices who wound up voting to preserve the ruling.

It is entirely possible that, having won the ability to ban abortion, conservatives will proceed to enact such bans on many or most women in this country. It is also possible that opponents will begin expanding the right to abortion into a steadily widening sphere. Social conservatives have won a legal victory, but the end of the story hasn’t been written yet.