In 1992, fundamentalist Christians who wished to see theocratic law imposed on the rest of the country were stabbed in the back by a conservative Supreme Court. In Planned Parenthood of Southeastern Pennsylvania v. Casey, the court ruled, 5-4, to affirm the right to abortion before fetal viability as recognized in Roe v. Wade. The court placed significant new restrictions on reproductive rights, but it didn’t overturn Roe. All five justices who voted to affirm Roe were appointed by Republican presidents. Indeed, the 1992 court comprised eight justices appointed by Republicans. Only Byron White—who was nominated by John F. Kennedy—was appointed by a Democrat, and he joined the dissent against Casey and Roe.
Now, 30 years after Casey, the fundamentalists have the court they want. In Dobbs v. Jackson Women’s Health Organization, the Supreme Court overturned Casey and Roe, by a vote of 6-3. All six justices appointed by Republican presidents concurred in the judgment; all three appointed by Democrats opposed it.
What has changed in the intervening years about the kinds of justices Republicans appoint? It’s not like Richard Nixon, Ronald Reagan, and George H.W. Bush tried to appoint justices who would frustrate the white fundamentalist Christian agenda. In fact, the conservative justices in Casey generally took a dim view of women’s rights and had a Confederate’s love of states’ rights. Those earlier conservatives upheld Roe under the 14th Amendment’s grant of substantive due process rights, but they were unwilling to grant reproductive rights under that amendment’s promise of equal protection.
The principal difference between conservative justices then and conservative justices now is that the conservatives of 30 years ago were practical. They didn’t like abortions, but they understood that no society in history had successfully prevented them. They understood that criminalizing doctors who can perform the procedures safely only leads to unsafe, unregulated procedures and off-label use of drugs or homeopathic therapies. They understood that pregnant people will seek control over their bodies, whether or not the state or the courts or the church acknowledge their bodily autonomy.
Lawyers refer to this approach as looking at the “reliance interests” of a prior decision. In the plurality opinion in Casey, Sandra Day O’Connor repeatedly referred to this practical reliance on the Court’s ruling in Roe. She even wrote: “People have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail.”
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"swipe left below to view more authors"Swipe →Forced-birth fundamentalists never accepted that idea—or the Casey ruling. So Republicans began seeking out justices who did not care about the realities faced by the American people. They sought out fanatics who would be willing to ignore the practical implications of their rulings—zealots who would not only ignore precedent but ignore reality itself. And they succeeded. With the help of Mitch McConnell, the Federalist Society, and wealthy donors willing to shove copious amounts of money at anti-choice candidates, Republicans found six people willing to do this dystopian work.
That success explains the court’s rulings in Dobbs as well as its approach to many other cases this term. In Shinn v. Ramirez, the conservatives ignored a man’s proof of his innocence and sentenced him to die just the same. In Kennedy v. Bremerton School District, they simply made up a set of facts in order to defend a high school football coach who was functionally pressuring public school students into Christian prayer. And in New York State Rifle & Pistol Association Inc. v. Bruen, they argued that actual statistics about gun violence are irrelevant to whether a state is allowed to issue gun permits.
Unleashing this kind of conservative on the court to combat Roe was like introducing an invasive species into an ecosystem. Once they’re done eating whatever it is they were brought in to kill, they just move on to killing the next available prey. The conservatives sent to the Supreme Court to do away with Roe have already cannibalized the 15th Amendment and its protection of voting rights. They have already eroded the separation of church and state. Next term, they’ll overturn affirmative action. And after that, they’ll likely go on to LGBTQ rights and the right to use contraception. Off in the middle distance, segregationists who never accepted the ruling in Brown v. Board of Education are drooling with anticipation.
To combat these conservatives, Democrats cannot go back to a 20th-century view of the Supreme Court and its institutional prerogatives. To survive, Democrats must take power away from these people. Otherwise, pluralistic democracy will go the way of the dodo bird, too slow and flightless to adapt to new predators. After 1992, Republicans engineered a new breed of conservative justice. The rest of us must create a new kind of Supreme Court before it’s too late.
