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I’m Ezra Klein. This is “The Ezra Klein Show.”
On Friday, June 24, a Supreme Court majority voted to overturn Roe v Wade. I am recording this on Saturday evening, and abortion is now banned in at least nine states. More likely to follow in the coming days. The way to understand this moment goes beyond any one case. This is a moment of legal regime change. This has made clearest in a concurring opinion written by Chief Justice John Roberts. He charges — it’s really an extraordinary document. He charges the other five Republican appointees with abandoning judicial restraint. He writes quote, “If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.”
Perhaps we’re not always perfect and following that command, and certainly, there are cases that warrant an exception, but this is not one of them. There are now six Republican appointees on the Supreme Court to three Democratic appointees. That is true despite Republicans losing the popular vote in seven of the last eight presidential elections. The Supreme Court is our least Democratic branch, but it has become unbelievably undemocratic, maybe even anti-democratic. Now you might imagine that this would lead to a certain modesty among the Republican majority, but it has not. The core of this ruling, if you read it, is not just about abortion. It is an argument about how this court will wield its power going forward. And the majority opinion is explicit repeatedly on this point. They write quote, “We cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work.” The Republican-appointed justices who now control the court they will remake this country as they see fit. They already are.
I’m joined today by Dahlia Lithwick. She covers the Supreme Court for Slate, she hosts the legal podcast “Amicus.” she’s a person I turn to whenever I need to understand the court, and she brings her clarity and passion in spades here today. As always, my email is [email protected].
Dahlia Lithwick, welcome to the show.
Thank you for having me.
So let me ask you something blunt to start. Is it a waste of both of our time for me to ask you a bunch of questions about Justice Alito’s legal reasoning here? Five justices believe abortion is wrong. Roe is wrong. And they had the power to do something about it, and so they did it. Am I actually missing anything with an explanation that centers power and ideology rather than constitutional reasoning?
My sense of this is, having covered the court, this is, I guess my 22nd term and for almost everyone until this one, it was kind of there was a little bit of mystery in it and often that was because throughout my career, whether it was Sandra Day O’Connor or Anthony Kennedy, that center of the court was in play. As soon as Amy Coney Barrett comes onto the court and John Roberts is no longer determinative of anything, and let’s be clear, his concurrence today really shows that he is now kind of constitutionally irrelevant to the majority of the court.
But as soon as there stop being any doubt about what you were going to get, the court could have done a whole bunch of things, some of which are just optics and appearances, some of which are genuine efforts to say we’re going to pump the brakes. We’re not going to make it look like this is an enterprise that is about raw power. There were a hundred different ways — and by the way, Chief Justice John Roberts is a master of the game of either saying that you’re doing something without doing something or saying you’re not doing something with doing it or doing it kind of small and then doing it big the next time or pretending that you already did it and finding it — you know, this is the thing he does. It is his M.O.
And the fact that none of that matters to the other five conservatives on the court, there’s no need anymore to worry about appearances. There’s no need to do what Roberts would propose doing, which is let’s do the 15-week ban that Mississippi is asking for. And in two years, we’ll come back, and we’ll take the eight-week ban, and then we can do the personhood thing. It’ll look good. There’s no interest in that anymore. And so I think two things have happened. One, stipulated, now this is purely instrumental. This is purely power. We have the six votes. You do not. But two, underneath that, there are 1,000 mechanisms that the court can deploy to kind of razzle-dazzle you so that it doesn’t look like it’s straight-up power.
But the minute Amy Coney Barrett is flying to the Mitch McConnell Center and standing next to him and giving a speech about how the court isn’t partisan, or the minute the court is dropping opinions on the quote-unquote “shadow docket” that have no reasoning and are not signed, the court is doing everything it can do to not kind of cater to those niceties and those appearances.
So in some sense, I guess I’m describing a double barrel problem. One is that it is raw power, and on that, you are diagnostically correct. The other is the majority does not care that we see that.
I will say one doctrinal thing before we completely walk away from Justice Alito’s opinion, and that is I think it matters because I think that there are two kind of chilling — there’s a lot that is chilling about this, Ezra, but two of the things that I think are chilling are the way the court disposes of precedent and stare decisis. And so I think I guess I would say it matters not so much because we should care about the doctrine, but I think that if we follow the breadcrumbs, it matters because it tells us what could come next.
Yeah, I think that’s a really good way of putting that. So let’s get into the regimes here. I think for a lot of people, what they understood yesterday was that Roe makes abortion to some degree legal in this country and protected by the Constitution, and as of today, something has changed. So let’s actually go through the regimes. What did Roe make constitutional unconstitutional? How did Casey modify that? And then how does Dobbs change all that?
Well, Roe essentially built on a set of protections that in some sense, I think you know, Justice Alito, and this was, by the way, the same sets of protections if you were listening to the Ketanji Brown Jackson hearings, you heard John Cornyn and Marsha Blackburn sort of describe, oh, these unenumerated rights they’re sort of made out of like peanut butter and cotton candy, and there’s nothing there. But actually, there’s a really, really robust set of rights that is not in the Bill of Rights. It’s lashed to the sort of liberty interests that are fleshed out with the 14th Amendment.
And this is a set of rights, and it’s so important to understand this, and in some sense, so frustrating the Democrats at those Ketanji Brown Jackson hearings didn’t argue this. They’re actually definitional when you were trying to think about what it meant to emancipate former slaves, because if you were former slaves and suddenly you were free, all of the free speech rights in the world and all of the right to bear arms in the world, even using a militia clause, all of those rights are meaningless if you do not have, fundamentally, bodily autonomy and family autonomy.
And so when you look at the drafting of the 14th Amendment and so much of this history, I just want to point to Peggy Cooper Davis, who has done amazing scholarship. Try to put meat on the bones of what it meant to truly be free. And what they were doing when they were thinking about the sort of liberty interest protected by the 14th Amendment that the rest of the Constitution didn’t get at, it was the idea that if somebody can rape your wife, you are not free. If families could be separated, if your children could be sold into slavery over your objections, you were not free.
If husbands and wives were treated as chattel and they were economic instrumentalities, but they were not, in fact, a family unit, they were not free. And there’s amazing, heartbreakingly beautiful language about trying to enforce that idea that the cornerstone of freedom is the ability to define what a family is, to marry who you love, to raise children as you see fit.
And if this all sounds still like peanut butter and cotton candy, I would just say that the whole line of cases that follows that Myers, Pierce, a whole bunch of cases that have to do with how your children are educated, how they are raised, in some sense, it has its apogee in Loving v. Virginia, the anti-miscegenation case that says you cannot be free if you cannot construct the family that you want to construct.
And all of that becomes this kind of unenumerated rights substantive due process. It’s so fundamental to what it meant to be free, and to suggest that, oh, you know Griswold v. Connecticut was invented out of plain air by these weird hippie justices who wanted to give people the right to use contraception is to ignore all of that framing language and ideology about what the 14th Amendment sought to protect in terms of what your liberty interests were.
And I just say that because if you think about what it means in Griswold v. Connecticut to be able to use birth control within your marriage, what it means in Roe v. Wade to be able to determine how many children you will have and when you will have them and all the economic valences that go with that what it means in Obergefell to be able to marry the person that you love all of those things are weirdly the same rights that people who are now objecting to critical race theory in the classroom or sex education in the classroom are objecting to.
And so it’s sort of like if you peel away the notion of the family unit, bodily integrity, family autonomy and the ability to sort of direct your life choices about how you structure your family, if you peel it out of the Roe context it’s weirdly a right that John Cornyn and Marsha Blackburn would privilege above all else.
And so that’s my very long-winded way of saying that what Griswold and Roe tried to protect, and, yes, there’s pin numbers and emanations and the Ninth Amendment and the Fifth Amendment, and it’s complicated, but it was trying to give force to this idea that if you cannot construct your family as you see fit, you cannot be free.
And so what Roe essentially did is that before Roe, it was a matter of which states allowed it. What Roe determined was that you had a right to terminate a pregnancy. And they had this tricky trimester system, right. And here’s where Justice Blackmun, who had been talking to the Mayo Clinic, goes super wonky and medical.
But he created this three-trimester framework and essentially said that within that three-trimester framework, the line would be something like fetal viability. And up until the point that a fetus is viable, you put a thumb on the scale for the interests of the mother. And after viability, the state has a whole bunch of interests in supporting the life of the baby.
And so Roe was meant to be a compromise, where you were balancing those interests. And Casey, essentially in 1992, built on that and scuppered the three-trimester framework and said that’s crazy and kind of anachronistic and doesn’t work, but nevertheless used this benchmark of viability and said you cannot put an undue burden on a woman’s right to choose.
And really truly, I think maybe the most essential thing I can say is that Casey, faced with the opportunity of overturning Roe, we had three Republican-appointed justices, David Souter, Sandra Day O’Connor and Anthony Kennedy, who said you know what, we’re not going to overturn Roe. We’re going to uphold Roe even though we kind of don’t love it. We’re going to uphold it because the reputational interests of the court would be so damaged if the composition of the court led us to a different outcome just because of who’s on the court.
So in a weird way, Casey was a compromise by Republican-appointed justices, saying people have relied on this, they’ve ordered their lives around this. We’re going to just live with it changing the test somewhat. There’s also some description in the opinion of women’s economic interests, their interests in being able to participate in the economy, and in being breadwinners.
So by the time Casey comes along, the justices hold their nose and say, look, everybody relies on this. This is the law of the land, and it was chipped away in certain contexts, but essentially, that was the law until yesterday.
I want to go back to a case you mentioned because it plays into this one interestingly. So you mentioned Loving, which is the case that finds a right to interracial marriage. And that comes up here because across Alito’s argument, he makes this argument that if a right cannot be found in either the history of the United States, if you can’t see it having been widely adopted in our past, and it is not explicitly mentioned in the Constitution, it really doesn’t exist. At that point, you have no reason to say that’s a right, not something that should be decided by legislatures.
And the dissent written by Justices Breyer and Kagan and Sotomayor bring up Loving and say if you apply that test to Loving, then you have no basis for finding that right. And I thought that was a very sharp way of prying apart what it is the conservatives were saying here. And I want to see if you could build that out a bit.
Yeah, I mean, I think they are saying that initial point that I made to you, which is, if you take Justice Alito at his word and if the only test is whether a right was quote, “deeply rooted in the history and tradition” or some deeply rooted notion of the sense of ordered liberty those are the tests he’s using, then you cannot pluck out Roe and Casey without plucking out all the other cases in that basket of an enumerated family autonomy dignity rights.
And so what they’re essentially saying is if you mean what you say here and then you turn around and try to cabin it and say, oh, this doesn’t actually affect Loving, this doesn’t affect Griswold, this doesn’t affect Lawrence, the anti-sodomy laws, this doesn’t affect Obergefell, the marriage equality laws, then you’re just asking us to take you at your word that they’re different. And I think what they’re trying to say is you either mean it when you say that some stare decisis matters more than others, or this is just pulling out this one Jenga piece, this is pulling out Roe and assuring us that the rest of the Jenga Hubble stays intact but of course Loving, of course, Griswold would be the next to fall.
There’s an argument that Alito and the majority make, which is that Roe itself shouldn’t be understood as legal reasoning. From the conservative perspective, that too was either raw exercise of power, or at least, of judicial overreach. And the majority rights quote, “The scheme Roe produced looked like legislation, and the court provided the sort of explanation that might be expected from a legislative body.”
And so their argument is that they are just taking this out of the hands of the unelected Supreme Court and giving it back to the people and their elected representatives. That it shouldn’t be the court legislating. It should be legislators legislating. What’s wrong with that reasoning?
I mean, I think it would be vastly more persuasive had it not been completely subverted only one day earlier with the court’s guns ruling and Bruen. In Bruen, what the Court says is no, this is not going to be decided state by state. This is not going to be decided at the ballot box. When we say that the right to keep and bear arms means that you can concealed carry in New York without getting a license under this sort of ambiguous test, what we mean is we are not leaving that to the vagaries of the New York legislature or the California legislature to determine.
And so I think it goes to your very, very first question about how absolutely ends driven this is because the court literally used the opposite logic in Bruen and said, well, it’s entirely true that there wasn’t an individual right to bear arms until 2008 in Heller, which comes a lot later than Roe v. Wade, but it’s so fundamental now that it cannot be left to the elected branches and we cannot leave the poor people in New York to the tender mercies of their state legislature or licensing schemes.
And so I think it’s just a really, to me, holding those two cases together coming 24 hours apart, you can sort of see the flaw with the argument.
Now I take their point, which is if you simply define rights to mean that, oh, we went back and we looked at all the history in each of these cases, by the way, is an exhaustive jaunt through centuries of history cherry-picked, I think in both majorities to make the point. But if you get to the point where you say, oh, here’s the deal, when we look at all of the history and pull the bits of it that we like and then we say, no, actually, we didn’t invent an individual right to bear arms in Heller. That was always there, even though it wasn’t there.
But you invented a right to have bodily autonomy and liberty and freedom to arrange your family as you see fit, that was invented out of whole cloth in Roe, then it seems to me that if you set it up so that you’ve determined what you think to be deeply rooted in the history and tradition or a sense of ordered liberty, you can kind of have that outcome derive the way you do your history.
And I think one of the real questions that comes up in the dissent is, actually no, some liberties are not just to be determined at the ballot box. Some liberties are absolutely fundamental, and we don’t want to have it be different in Louisiana than it is in New York, which is, by the way, exactly the argument that the court had deployed the day before when they handed down the guns case.
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So we’ve touched this question of stare decisis, and I really want to spend some time here because I think from the outside to a normal person, this all looks like a debate over rights. Is there a right to abortion? But I don’t really think that’s true or at least not the main thing being debated inside these decisions because if it was, there sort of be nothing to debate. The conservative justices just believe abortion is wrong, that there’s no right to it, and that’s that.
But Chief Justice Roberts’ opinion, the majority opinion, the dissent are very, very centrally concerned with this question of stare decisis. So let’s begin here. Can you just say what it means?
I mean, stare decisis is a legal principle that says that the law is the law, doctrine is doctrine, and the composition of the court cannot willy-nilly drive reversals in what the law is. And there’s a kind of an elaborate set of values that the court looks at. How workable is the doctrine? Have people relied on the doctrine? There’s chunks of it that the court uses to analyze it. But the general principle is that people organize their lives around court decisions, and it would really suck if a couple of retirements in a couple of appointments mean that the law is different.
I think it’s worth for a second trying to look at this with non-legal eyes because, in a way, it’s a very weird principle. I mean, imagine you’re a Supreme Court justice. You think there’s that ruling was really wrong. You were nominated and appointed to the court by people who think this or that ruling was really wrong. That’s partially why they nominated you. And you’re not supposed to do anything about it.
And not because you don’t have the power, but because there’s this norm or semi-rule that you shouldn’t do it except only in extreme circumstances. Isn’t that actually strange? How have we gotten people to abide by it, more or less?
Well, I think it’s part of the bargain of how it is, and this goes to — and I know we’ve had this conversation you and I — but how we, I don’t know, mollify ourselves, delude ourselves, soothe ourselves into thinking that the court is not a purely political branch. And there’s a whole bunch of again tricks and tips that the justices deploy to do that. They wear black robes. They show their work. They tell us time and time again that they’re just umpires that there is nothing partisan or political.
Justice Stephen Breyer just wrote this book saying we’re different. We’re not a political branch.
The worse timed book.
Yeah, and if you read the dissent through the eyes of that book, it is doubly heartbreaking, Ezra, because it just feels like the footnote he never wanted to write to that book.
I knew afterward: my book was wrong.
Whoops by Stephen Breyer. But I do think, in a profound way, one of the bargains is you, the American people believe that we are different. And in exchange for that, we do certain things for you, like showing our work and trying to be reasoned and trying to be principled and trying to hold ourselves above politics. And one of those things that we do is called stare decisis because otherwise, it’s just pure power, and that looks bad.
And so, I think in a way, I guess it dovetails with the very, very first question you launched into, which is stare decisis, one of those complicated fictions that the court deploys in order to have the American people abide by its decisions knowing that — we knew we were going to get Federalist Papers — but knowing that the court has no other power neither the purse or the sword? What they have is public legitimacy.
And I think stare decisis in this cynical construction is a way of saying don’t freak out because it’s all going to kind of stayed the same. And if it changes, it’s going to change in a kind of iterative organic forward-moving way, not slashing and burning what’s come before.
And so I think on this one front, again, the hero of the story in some sense is Clarence Thomas because he’s always been very clear. He just doesn’t believe in stare decisis for the reasons you laid out. He’s like, if it’s wrong, it’s wrong and it should be overturned. But I think in many, many ways, I mean, this is the same Clarence Thomas, who in his dissent says, oh, by the way, let me be clear, I’m coming for Obergefell. And let me be clear, I’m coming for Lawrence. Let me be clear that I’m coming for Griswold.
In a sense, Clarence Thomas is so good at saying the quiet parts loud that when he says what you just said, which is this is just kind of a dumb fiction that soothes people but doesn’t really allow the court to get it right or do error correction, he’s the only person who’s been that open about it. And in an interesting way, that’s really clear in his dissent today too.
Yeah, his dissent is very darkly amusing. You can imagine the other conservatives who think, can you not shut up for five minutes and not say the quiet part out loud? Can you just let us get this thing you’ve always wanted to get done done?
And I should say it’s a concurrence. Let me say it because we’ve both said dissent. But in his concurrence.
Oh, I’m sorry.
We both did.
Dissenting from this one part. But, yes, it’s a concurrence. He’s part of the majority opinion. But I do want to read to you from the majority opinion here because I think that even beyond overturning Roe and Casey, and you talked about this earlier, perhaps the most important thing that the opinion talks about is the majority’s approach to stare decisis. The majority acknowledges that quote, “There is a special danger that the public will perceive a decision as having been made for unprincipled reasons when the court overrules a controversial watershed decision such as Roe.”
But then they go on to say, “We cannot allow our decisions to be affected by any extraneous influences, such as concern about the public’s reaction to our work.” And that almost read to me a statement of purpose for this court. What does it actually mean for the Supreme Court to say, hey, we’re done with extraneous concerns? We’re done worrying about public opinion. We’ve got the keys to this thing, and we’re going to drive it like we stole it.
It’s so interesting, and again it’s in such contrast to the solicitude that you see in those last lines of the dissent where you really see the three dissenters, and they wrote this dissent together essentially saying you are giving up the hard-fought legitimacy, and Justice Breyer would say two centuries of hard-fought legitimacy for a court that had no legitimacy for a long time.
But I think it’s really important to understand that for the dissenters, the thing that you’ve identified is the kind of cardinal sin here that for Justice Alito to write in his opinion, you know, there’s this big kind of weird shrug emoji section in the middle where he more or less just says we don’t know how this is going to land. We don’t know how it’s going to affect people. I guess it’s just not on us to even worry about it.
And it’s such a strange — you know, it’s been extensively briefed. The horrific impacts on maternal health and infant health and the economy, and women’s ability to have anything close to parity and economic earning, all this stuff is documented in the briefs. And then there’s this just amazing section that I think you’ve just characterized where Justice Alito says we do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey.
And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision. We can only do our job, which is to interpret the law, apply longstanding principles of stare decisis, and decide this case accordingly. And it literally feels like he’s giving the back of his hand not just to the dissenters who are imploring him to think seriously about what this does to the legitimacy of the court, but to every single justice, including many Republican appointees that have come before that have upheld Roe and Casey out of this greater sense that it would be a jolt to the system to just willy-nilly reverse it.
And so I think there is this feeling that pervades the majority opinion that kind of is — Professor Leah Litman describes it as the hashtag #YOLO majority, that You Only Live Once. We’ve got the keys, as you said. We’re going to do it. And actually, we’re just not much concerned both about the impacts or about the effect on the legitimacy of the court.
And it is, I think in a sense, the most elegiac parts of the dissent are longing for the quote-unquote “wise justices” that did the compromise in Casey and put that before their own sort of parochial interests.
We’ve been putting the majority opinion in conversation here with the dissent, but on this point, I think what it is in sort of shocking conversation with is the opinion penned here by Chief Justice John Roberts. And he doesn’t really say the majority is wrong. He says, in his opinion, they have become judicial radicals, his fellow Republicans, that they have abandoned judicial restraint and stare decisis totally.
He writes quote, “The court’s opinion is thoughtful and thorough, but those virtues cannot compensate for the fact that its dramatic and consequential ruling is unnecessary to decide the case before us.” How do you read what Roberts is doing in his weird concurrence?
Well, I think what he’s doing is saying very explicitly what I think described earlier as his M.O., which is we could have done this pretty. We could have done this over many years. We could have, I think, the parlance used to be chipped away at Roe v. Wade and slowly, slowly over time, we could have achieved this result without doing it big and ugly and carelessly.
And John Roberts has been really interesting both insofar as he side with the liberals in a case that directly challenged whole women’s health. And he essentially said, hey, no, we’re the deciders. We will decide this correctly. And then, really interestingly, over the course of this term, as the liberals have been more and more voluble in their objections to the so-called shadow docket —
And that’s the emergency docket where these unsigned orders on really important issues, like the attendance orders for houses of worship during Covid and the Remain in Mexico policy and the eviction moratorium and then, finally, SB8, which was the Texas quote-unquote vigilante bill —
All of those things got decided on the shadow docket and sometimes that just meant quite literally something would pop up, and you wouldn’t even know which justices were in the majority, and you maybe got a sentence. Sometimes you didn’t know what the reasoning was. And Chief Justice Roberts has evolved in this sense over the course of this term where he is now started to join the liberals in saying this is an abuse of process. You cannot use this emergency docket, and decide huge consequential issues, and nobody knows what the law is.
And so he has, in a lot of ways, I think joined with the liberals on this one issue of what I would just call judicial unseemliness, Ezra. He’s not really, I think, in any way devoted to different outcomes. He just doesn’t like looking like hacks.
And what he wanted to do, and we know this from the leak, was that he was trying to get some kind of plurality, some chunk of the sort of liberals and the quote-unquote “moderate conservatives” that would have been Amy Coney Barrett and Brett Kavanaugh in this case, to peel off and do something that looked seemly that was just this.
We’re going to bless this 15-week ban. We’re going to put a thumb on the scale for having abortion regulations, but we don’t have to go all out and overturn Roe because that would be ugly. And again, he uses the word jolt. He got zero people on board with that project. Both at oral argument, it was plain. Nobody but him was interested in that. And that’s what this concurrence is.
It is zero people agreeing with him that we could save overruling Roe and Casey for another day when the people have gotten used to it, and we’ll just uphold the Mississippi law. And what he got was nobody, no takers on any side. In a sense, I read his concurrence as I have lost the court.
I think there’s also a question with him about whether he thinks the institution can survive where it looks to be going. Often we think of ideology is too one-dimensional that we have in our heads this left-right spectrum where all the way on the left you can be a socialist and all the way on the right you can be a libertarian, and then everything else is between them.
I mean, there are many more dimensions, but an important one that we often miss is this dimension of temperament towards change that you can be somebody with liberal ideology, but a sort of conservative view of change, or you can be somebody who has very conservative ideology but a very, very revolutionary view of change.
And it seems to me that Roberts is not ideologically out of step with the conservatives on the court, but he’s temperamentally out of step with them. I think he thinks are going to break this place. And one thing I thought was striking in his opinion is the majority on this point of stare decisis takes some pains to say, look, we are in a lineage here of the court.
We have overturned many important decisions, and that’s actually part of our heroic legacy. They talk about Brown v. Board, about West Virginia Board of Education v. Barnett, about West Coast Hotel company v. Parrish. And those were all also, I should say, cases that liberals venerate.
And Roberts actually goes through and rebuts those examples one by one and says, quote, “None of these leading cases, in short, provides a template for what the court does today,” which struck me as a pretty harsh rebuttal. I mean, not that it mattered, but a pretty harsh rebuttal to the Republicans in the majority. Can you talk a bit about the distinction he’s drawing between when overturning a case in his view is merited and here where he thinks it is not?
My sense of this is that he just thinks that it goes too far to hold out overturning Dred Scott or overturning Plessy v. Ferguson as analogous to overturning Roe v. Wade. I think my sense is that that feels hinky to him in a way that it may be hinky to people who think, wait, really? You are analogizing the wrongness of Roe to the wrongness of Plessy? Like that has to be bad.
And I think maybe the one place where I might split hairs with you is that I don’t know that his temperamental problem is so much the pace of change. I think he sees himself as in a line of Chief Justices, and he clerked for Chief Justice William Rehnquist, who very much also saw himself as a sort of Steward of the court and of public approbation of the court. And so I think it’s less about an appetite for pumping the brakes and more about an appetite for how do we make this palatable in a way that does not rock the country’s confidence in the court.
And he thinks — and I think he’s right — you can look at, for instance, his mentor Chief Justice Rehnquist who reversed himself on the Miranda warning, which, by the way, I think was eviscerated this week too, but again for exactly the reason that in Rehnquist’s case, although he hated the Miranda warning, he really felt that the country had come to depend on it. They had ordered their lives around it. It was on TV shows, and it would be a huge shock to do away with it.
And I think that that’s the temperamental difference is I’ve always sort of described John Roberts as actually having a phenomenal sort of constitutional E.Q. He can really read the room. And I think he’s always been very, very good at saying we will go just this far and no further because it would be too much. And as I said, we lauded him even when liberals didn’t agree with him, and that was certainly, I think, the basis of his switching his vote in the Obamacare case, by the way.
But I think there was just a sense that he wasn’t so purposive that he would break every single thing in the China shop to get what he wanted, and that wasn’t because he didn’t want it. It’s because, like Rehnquist, he always had an eye on this other thing, which is how far can I push the public. And it is really telling to me that there’s been 10 pieces written this year with the title, headline John Roberts has lost his court because nobody, nobody, I think, on the right-wing of the court really is interested in that project. He is absolutely alone in triangulating against what the public might be willing to abide.
I want to wrap our stare decisis conversation by asking about the big picture on this. And you alluded to this. the court is very fundamentally weird. It’s all-powerful, but it is in no way of backing up that power. It’s obviously apolitical, but it’s supposed to stand beyond politics. It’s got these nine people who are always disagreeing, but they’re somehow presumed to speak on behalf of the Constitution.
And stare decisis seems to me to be this norm that the court has adopted to paper over its contradictions. It’s how it makes itself seem like a coherent institution operating across time as opposed to, I don’t know, nine-robed warlocks who are casting legal spells all over the country.
And so I’ve said this. I don’t think stare decisis makes a lot of sense logically, but without it, I don’t really think the Supreme Court itself makes sense. And that seems, to me, to be what Roberts is trying to protect, but also it’s kind of obvious here that if you just say we can do whatever we want, then you’re going to force the question you never want anybody to ask about the Supreme Court, which is, well, why?
Yeah, it’s interesting because so much of this fury on Friday, at least what I was catching on cable news and maybe that doesn’t reflect anything was the sort of Susan Collins like, what? They lied in their confirmation hearing? When they said they respected stare decisis, I believed them. And I think you can have a whole separate conversation about whether that’s just deliberate credulous cover.
But Joe Manchin seemed a little grumpy. He really took them at their word. And I think that there’s one —
Just to say what he took at their word, two or three of them won confirmation, either saying or implying extremely heavily to key senators that they would not overturn Roe. That’s what they’re mad about. It’s kind of wild how many of them won confirmation saying, basically, I think now it looks like lying.
Well, right. And the question would have had to be because Donald Trump, in 2016, for the first time ever ran for president, disclosed a list of his Supreme Court picks that were going to overturn Roe. He told us that. So I guess if somebody had pledged to me that they weren’t going to overturn Roe, I think the correct question is, was Trump lying, or are you lying because somebody is clearly lying?
And I think that in a strange way, one of the reasons people feel so surprised right now is that they thought that was a genuine pledge or something that was somehow said under oath that is perjury. And I think that it goes to, in a sense, how bogus these confirmation hearings are.
But I think it goes to your fundamental question, which is why do we need stare decisis. And we need it because if we don’t have some reassurance that this new person is not going to come into our house and rearrange all the furniture and put the fridge in the backyard, then it’s really, really hard to organize your life.
And I think that stare decisis in that sense, I mean, we’ve both characterized it in similar ways, is part of a kind of pledge that you will believe in me if I believe in you. And me believing in you means that I don’t go around and change everything because that would be really political and partisan. And so there is this question under your question, which is maybe it’s better like maybe it’s just better to have Clarence Thomas’s stare decisis sucks. We should get rid of it altogether. Or maybe it’s better to live in a world where we’re supposed to take Justice Alito’s word that stare decisis doesn’t control in overturning Roe, but it will control when he gets to Obergefell.
But I think it really does go not just to the sort of fiction that the court is weird and the court is different, which is its own pathology we can talk about another time. But I do think it goes to this essential need for public trust that really makes the court unlike any other institution, and it’s kind of those ethics rules that everybody’s squawking about. How is Clarence Thomas’s wife texting Mark Meadows, and he’s still sitting on the January 6 cases.
And the answer is I think that the court has sort of swapped itself in all of these norms that are fundamentally insane, but they’re all part of a promise that the court’s going to just conduct itself differently. And that’s what stare decisis is of a piece with that, I think.
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So I want to move to some pieces of the dissent. And I mean, it is a genuinely searing and remarkable piece of work, and people should read it. It’s very readable. It’s actually an amazing piece of writing, in my view. But one of the things it does, and the place I want to begin with it, is Justice Kavanaugh has a concurrence which is odd because it seems to me he doesn’t have any particular reason for writing this except for wanting to say something.
But what he wants to say is that the Supreme Court is not weighing in against abortion, that it is attaining neutrality on the question of abortion. The Constitution is neutral on it, and so the Supreme Court should be neutral on it. And what the dissent says is, I quote, “When it comes to rights, the court does not act neutrally when it leaves everything up to the states. Rather the court acts neutrally when it protects the right against all comers.” So can you talk a bit about these competing ideas of neutrality?
Yeah, I mean, it does go back to what I said about this is the answer. I think this is the dissent’s answer to fight it out in the ballot box. No, no. That’s not actually how we do fundamental liberty is. We don’t fight it out in the ballot box. And I think what the dissent is saying is that your neutrality is giving half of the states the right to do whatever they want to women’s bodies.
And I guess the other thing that’s sort of interesting, and this comes up in the dissent too, is, you know, Kavanaugh sort of sets up this strawman where he’s like, well, some of the states want to give all the abortions and other states want to criminalize all the abortions, so the neutral posture is to be just right in the middle of those things. And, of course, that’s not the reality. And so I think, in a funny way, he sets up the goalposts so that he can stake out the middle.
And I think that what the dissenters are trying to say and they say this I think with as you say, just clarion sharp language is no. There has always been a compromise. And it is between the interests of the mother and the interests of the fetus, and that compromise was called Roe, and that compromise was called Casey. And the idea that you can sort of change what the two poles are in order to find a convenient middle doesn’t actually erase the fact that we had the closest thing to a compromise, which is a system that tried to balance the actual two competing interests here in every single case.
And so I think in a sense, they’re calling him out for reframing this as though some states want to put all the women in jail. That’s just not the battlefield here, and I think that the studied neutrality again is just really, really hard to take when you hold it up against Thursday’s decision in Bruen where absolutely nobody was going to say the neutral posture here is to let the states that want to regulate guns go ahead and do that and the states that want to give everybody guns go ahead and do that. Kavanaugh would have been the first person to say, well, that’s not neutral.
They also make a point that I think is both very, very profound and very obvious about the kind of textual literalism and historical analysis that the conservatives are saying all constitutional interpretation should rely on. They write quote, “Those responsible for the original Constitution, including the 14th Amendment, did not perceive women as equals and did not recognize women’s rights. When the majority say that we must read our foundational charter as viewed at the time of ratification “except we may also check it against the Dark Ages) it consigns women to second-class citizenship.”
I mean, this, to me, gets to a very fundamental divide now on the court, which is that, I mean, it often gets talked about the living Constitution versus originalism. But it seems very potent to just note that almost intrinsically to the method of interpretation the conservatives are now using and that dominates the court that takes the injustices and inequities of the founding and ensures that reproduction in the present.
Right. There will only be this asymmetry because at the time of the founding and if you go back hundreds of years before to some of the legal sources that Justice Alito is citing, Matthew Hale, a person who thought witches should be burned. A person who thought a man couldn’t rape his own wife because she was his property. I mean, so many of the sources that are cited here are just of a time and place where women were possessions. They were chattel.
And one of the reasons I make such a point of pulling on that history of what it was that the 14th Amendment sought to protect and to give robust protection to is that if you take seriously that those are affirmative definitions of liberty and family rights and autonomy and the ability to order your intimate relations, then the text in history actually is on the side of Griswold and Roe. But I think you’re exactly right that there is a way that by lashing this to only freedoms that are deeply rooted in our history and tradition, women are never going to win. They cannot win.
And it feels as though that’s the tell that this is the game. And I think you’re quite right. That’s why this is the tell that L.G.B.T.Q. rights or marriage equality would have to come next. They were also not deeply rooted in the traditions in history. And so I think that the word living constitutionalism gets kind of a bad rap. It’s always associated with the idea that, you know, those justices in the ‘70s in the Warren court were just like smoking pot and making it up as they went along.
I think they were trying to answer to the dilemma you lay out, which is, how do we do this in such a way that we are both very seriously looking at text and history, very seriously looking at precedent and stare decisis, but also evolving in ways that understand that liberty simply doesn’t mean what it meant when laws of coverture meant that you were owned by your husband. And I think that is a project that we sort of flippantly say just means making it up as you go along.
But it’s an iterative project, and it is an iterative project that if you start from the proposition that if they were property in 1751 and 1868 and these magical dates, they still, I guess, are just going to be stuck now, then as I said, women can never get out of that kind of doom loop.
And it seems to me that one of the things that the dissent does, which is just chilling, and I agree with you, people should just read it because it’s an amazing piece of not just craftsmanship, but cooperative craftsmanship. And it seems to me that what time and time and time again the dissenters are trying to do is exactly what you said, which is make the life of women visible and urgent and true in conversation with the majority that doesn’t take a second to think about the harms that women will actually suffer.
Yeah, they say this very explicitly in the dissent. But if you read the majority opinion, it’s really striking that there is simply no engagement. I mean, it’s not like an engagement I disagree with. I would say there is functionally no engagement with what this will really mean in women’s lives. They don’t really try to rebut what’s there. They just read it, but they don’t dig into anything.
So in the dissent, they write, “Experts estimate that a ban on abortions increases maternal mortality by 21 percent with white women facing a 13 percent increase in maternal mortality while Black women face a 33 percent increase.” It goes on to talk about financial costs. It goes on to talk about laws relating to health care coverage and pregnancy discrimination.
But it is really striking. I mean, one thing the dissent is arguing throughout is that Roe and Casey, say what you will about them, they are a balancing act. They are balancing of the rights of the women versus the state’s interest is, I think, the way they put it in protecting fetal life.
And the conservatives do not try to balance anything here. I mean, they just wipe the whole thing away. It is a genuinely, strangely abstracted opinion that I think in dissent it really throws out into unbelievably sharp contrast. I mean, there really is a right to life, capacity for life for many people risk here. And it’s just something the conservatives never even try to find their way through.
And I would marry what you just said to the incredible solicitude of the Alito opinion to when the tiny fingers show and when the tiny fetus begins to move. It is fascinating, and this is one of those places where it just careens into kind of pro-life talking points because he actually has very, very deep emotional solicitude for what he variously describes as unborn human beings and fetal life. That’s very visible to him.
And I guess that in contrast with the dissenters just talking about what it is to be a rape victim, what it is to be impoverished in a state where you cannot cross state lines to terminate a pregnancy, you know, what it is to not be able to afford to take care love your children. And so I do think that you’re almost looking at two conversations that are talking past each other, and he actually scolds, by the way, he scolds the dissenters for not taking the regard for fetal life as seriously as he does. He thinks this is Cavalier of them.
But it is really, really fascinating. It’s as though you’re seeing two completely different movies running side by side. And his movie really, really is at pains to have sort of tender regard for the unborn life. And as you say, no regard at all that I could discern for the welfare of the mother at any stage. And then suggests that who can know, although there are ample, ample meticulously researched briefs that lay out the harms and he sort of pretends that he hasn’t seen them.
And so it is the contrast in some sense. It feels like it’s almost a metaphor for the partisanship that has infected this whole debate where he is so obsessed with fetal life and unborn human beings that he literally doesn’t see the mothers, and then he turns around and accuses the three dissenters for not having any solicitude or tenderness for fetal life.
It’s so —
I know this is a very common liberal complaint about the right, but I’m going to make it here, which is there’s a lot of rhetoric about fetal life in Alito’s opinion in the majority opinion here but I wouldn’t say actually in truth a deep or consistent concern for it. It’s actually something the liberals point out.
They write that the majority takes pride in not expressing a view about the status of the fetus. I want to say that I’m not somebody who thinks these are easy questions or that there isn’t a difficult need to weigh complex ethical considerations. I encourage people to listen to an episode we did about a month ago on the ethics of abortion with Kate Greasley, who really thinks about these things very deeply.
But you can imagine an opinion here that said the court has not correctly balanced the fetuses right to life. And that the way that opinion might work is to say, well, let’s take the easy case first and say we really need much better maternal health care in this country to prevent miscarriage. And actually, there’s a lot we know we can do to prevent miscarriages that are unwanted, and we need to make it easier to make sure that people are able to bring the children they do want into the world and we need to bring maternal mortality down because also the mother’s right to life is meaningful. And they kind of don’t do any of that. Fetal life is sort of wielded here. And I’m not saying it’s insincerely held, but I think it is odd when we are talking about rights, and I mean, if you are talking about life, you are talking about rights on some level that they don’t actually try to take more of a view on those rights. They really do just say, well, whatever any particular state decides is fine with us.
And it’s pointed out in the dissent and is true, if you look at the states that have the most restrictive abortion laws, they also tend to be the states that have the least helpful and comprehensive maternal health laws that offer the least support to mothers-to-be. It’s Just a very weird. It’s often pointed out that it does not feel particularly pro-life. It kind of feels like something less than that, but it seems true here too.
Yeah, and I think it’s part of that studied neutrality or attempted studied neutrality that we’ve ascribed to the Brett Kavanaugh concurrence, which is look, we’re not taking a position. We’re just getting the courts out of the business, and we’re going to let it all get quiet and easy by sending it back to the states. But I think you’re exactly right. I think that studied neutrality assumes a whole lot that is not in evidence about how states are approaching this.
And in fact, even what has happened right since SB8 came down since Brett Kavanaugh got on the court where we saw a raft of states suddenly falling all over themselves to make abortion less and less accessible, states that were passing laws that nullified Roe after Texas’s SB8 came down or after the Dobbs draft leaked. And so I think there’s a way in which to say we’re just going to be neutral about it, or even more cynically, there’s an amazing passage where Justice Alito says, you know, yay, we prize women. We prize them so much that we’re going to let them vote.
And it’s just such a funny version of neutrality given that — and I know this is just my hobby Horse — but we know how the levers of government work to ensure that the neutral setting is not necessarily the setting that advantages women.
So we now have this 6-3 Republican court with at least five of them in the YOLO demographic, as you and Professor Litman put it. And it’s going to be that way for a while and not just on abortion. I mean, you’ve talked about guns going backwards a little bit to different iterations of this court. They’ve really gutted the Voting Rights Act. They have allowed very extreme gerrymandering to have the imprimatur more or less of the court.
They look to be readying to revisit the amount of deference the courts give administrative agencies, which is a big part of the liberal state. They are probably going to look at affirmative action in the next term. What are the prospects for liberal governance in a world where have this unleashed Republican court? I mean, even if Democrats could pass bills which they’re not doing such a remarkable job of right now, can they actually sustain any kind of consistent governance in these conditions?
Well, this is where we get back to that. I remember a couple of years ago, you and I chatted about this minoritarian rule problem that leaches its way not just through the filibuster, which means the WHPA, the Women’s Health Protection Act, didn’t even come to a vote that would have codified Roe or the filibuster rule, the John Lewis Act, which would have reinstated the parts of the Voting Rights Act that Shelby County gutted.
And I think that part of the thing that we need to really wrap our heads around is what do you do when Republicans currently sitting on the court were seated by presidents who, in fact, lost the popular vote but won the electoral college and the electoral college is massively weighted towards rural agrarian states and that in turn is reaffirmed by a Senate that massively, massively malapportioned in the interests of rural agrarian states. And they then, once they get on the court, become a party too exactly what you’re describing, which is shrinking the vote whether it’s Shelby County, or Brnovich last year.
Whatever it is, it feels as though this really does feel like the doom loop of minority rule right.
And the justices are working hand in glove to do the things you’re describing, whether it’s sort of entrenching business interests term after term or whether it’s slowly chipping away at the existence of the administrative state, which we’ll see more of next week eroding the kind of wall of separation between church and state, which we’ve already seen this week and I guess we’ll see again next week. But all of those actions are really interestingly, in most cases, not commensurate with the popular will.
And so in both the guns case, Bruen, and Dobbs, you have 60 percent, 70 percent, and some cases 80 percent of Americans polling saying like I hate this. This is not what I want. And part of it is we can have a conversation about captured state legislatures and gerrymandering in all the ways that noncompetitive elections and the way the Senate works — all of that works hand in glove with the court to continue to entrench those systems.
And I think that isn’t a court problem per se. That is a democracy problem. And I think that’s the kind of thing that until and unless each piece of that puzzle can get sorted out. I think it’s just almost that you’re consigned to either say add four seats to the court because we can’t live under a juristocracy forever, which is part of your question, or it is what do we do about all these instrumentalities of government that are going to keep privileging not just minoritarian positions but extreme minoritarian positions over the will of the people.
And do you have a strategy as somebody who thinks about this all day and is much more immersed in liberal legal circles than I am? Is there a strategy that you think people are coming up with that seems plausible, or is the liberal take on this right now just oscillating between despair and panic?
Yeah, I think despair, panic and drinking might be the trifecta, but I would say, look, we have seen the state of Connecticut really boldly passed legislation that sought to protect abortion care providers in that state from being, you know, hauled into court in Texas and Oklahoma, like very aggressive forward-thinking legislation that’s now being copied elsewhere that essentially says, we’re going to have to think as creatively — I think the word was clever — when Texas passed SB8 and immunized itself from having any state actors and so nobody could be sued.
There are very, very clever aggressive things blue states can do. There was a great op-ed, and I cannot remember who wrote it about what the state of Maine has done to sort of insulate itself from some of the discriminatory elements in Carson the religious school funding case this week. So I think states can do a lot of things, and we’re going to see states do a lot of things. And that’s part of the answer is just be as aggressive and that means really be as aggressive, and don’t sit around and say some blue states should pass a law. Figure out how to do it.
But I think on the big systems work, it is so head and shoulders above my pay grade to say, you know, how are we going to seriously — there’s the compact solution for the electoral college. There’s meaningful efforts at every turn to fix the quite democracy problem. But I think I will say this. Liberals, in my view, get very, very myopic about saying America has a guns problem. America has an abortion problem. Why is it that the E.P.A. can’t be empowered to do something problem?
And all of those problems are fundamentally — I guess this is what I’m saying — those are structural, fixable, democracy and governance problems. And to really, I think, be much, much better at connecting that if my vote doesn’t count because gerrymandering is so bad, I think I better work on gerrymandering.
Or if these voter suppression laws have been passed in 19 states lashed to the big lie, I think I better work on voter suppression. All that stuff of democracy is the only way to get both the distortive minority-driven function of democracy fix, but I think also it’s the only way to get these larger outcomes around the environment or workers’ rights or gun regulation to get those effectuated.
So I think that’s a good place to come to a close. So always, our final question, which is, what are three books you would recommend to the audience?
Three books for folks who are feeling as shattered and gut-punched as I am feeling today, I would start with a book that I carry around everywhere with me, which is Rebecca Solnit’s “Hope in the Dark,” which is actually a book that when one of my sons was getting very, very panicky as teenage boys tend to do about climate change, she had me give to him and talk about with him. And it’s really a book that is like a very, I think, profound meditation on hope and why it matters and how we achieve it and that it’s not airy-fairy. It’s just a thing we have to grasp for.
The next is, and this is an improbable choice, but I also carry it around everywhere I go, and that is Viktor Frankl’s book “Man’s Search for Meaning.” And it is sort of a depressing book about surviving the Holocaust. But for me, for the last four years, it’s been kind of a lodestar to purpose that if you have purpose, you can kind of get through really, really, really hard stuff. And I have stopped talking in terms of happiness as much as I have purpose.
And then the third is just this Howard Zinn “You Can’t Be Neutral on a Moving Train,” and I cited this section of it in a piece I wrote a few weeks ago because I think also, like Solnit, it’s really a meditation on hope. So if I can read the little segment that I quoted, it goes like this,
“To be hopeful in bad times is not just foolishly romantic. It is based on the fact that human history is a history not only of cruelty but also of compassion, sacrifice, courage, kindness. What we choose to emphasize in this complex history will determine our lives. If we see only the worst, it destroys our capacity to do something.
If we remember those times and places, and there are so many where people have behaved magnificently, this gives us the energy to act and at least the possibility of sending this spinning top of a world in a different direction. And if we do act in however smaller way, we don’t have to wait for some grand utopian future. The future is an infinite succession of presents. And to live now as we think human beings should live in defiance of all that is bad around us is itself a marvelous victory.” Howard Zinn, “You Can’t Be Neutral on a Moving Train.”
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Dahlia Lithwick, thank you very much.
Thank you so much for having me.
“The Ezra Klein Show” is produced by Annie Galvin and Roge Karma. It’s fact-checked by Michelle Harris, Rollin Hu, Mary Marge Locker and Kate Sinclair. Original music by Isaac Jones; mixing by Isaac Jones. Audience strategy by Shannon Busta. Our executive producer is Irene Noguchi. And special thanks to Kristin Lin and Kristina Samulewski.
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