Last updated on September 21st, 2021 at 01:26 pm
The Dobbs v Jackson Women’s Health Organization case now pending before the US Supreme Court is likely to be the most watched and consequential legal case of the past fifty years. Depending on the outcome, it has the potential to be a defining case for generations and will become a dominant point of discussion next year and for years to come. In Part One of this article, I discussed the Court’s catastrophic abortion jurisprudence and reviewed the full-on frontal challenge that the Dobbs case presents to the notion that the US Constitution contains a right to abortion. In Part Two, I briefly examined the legal doctrine of stare decisis and began to explore how politics could heavily influence whether a majority of justices allow it to save the illegitimate Roe and Casey decisions. Today in the final installment of this article, I dive headlong into a detailed discussion of what the real-world politics of this case will likely look like.
The Supreme Court has set the Dobbs case on an ordinary legal path leading to briefing, argument and decision, but that path will likely include some extraordinary developments. How will politics impact the process of deciding this case? I envision:
- Immediately after the opposition briefs are submitted next week there will begin an ongoing focus of the liberal legacy media talking about the “grave harm” that would befall women and girls – especially the poor, the young and those of color – should the Court rule in favor of Mississippi. Indeed, the words of the uber-liberal Obama-appointed trial court judge who blocked the Gestational Age Act from taking effect will enjoy much prominence in the media’s framing of the case. Judge Carlton Reeves called the law “gaslighting” and a remnant of “the old Mississippi – the Mississippi bent on controlling women and minorities.” This sort of invective – apparently opposing abortion is racist – will ramp up as oral argument approaches next year and will reach a fever pitch thereafter.
- This messaging will be repeated ad nauseum in advertisements designed to strike fear in the minds of both Supreme Court justices and the Democrat base. Tens of millions of dollars will be spent in the Washington, DC media market alone. Millions more will be spent on liberal cable outlets such as CNN and MSNCB. They will be complimented by massive spending on online digital ads and social media aimed at young Democrats, especially young women, across the country. This will build to the point of oral argument, and then ramp up further from there.
- When a date for oral argument is announced, there will begin a continual presence at the Supreme Court by leftist activists and protestors to ensure that no justice, court employee, litigant, media representative or observer escapes what is being demanded of the justices.
- Sometime near or during the day of oral argument there will be a massive – massive – display of protestors in Washington, DC. I would not be surprised to see hundreds of thousands (or even more) liberal activists descend on Washington to demand that Roe and Casey be preserved. They will be angry, agitated and insistent. It’s also very likely that a huge throng of pro-life advocates will come to Washington to protest abortion and demand that Roe and Casey be overturned. The potential for physical confrontation certainly exists and if that does occur, the pro-life community will be blamed by the mainstream media.
- Powerful Democrat politicians (Schumer, Pelosi, White House officials and Joe Biden himself) will not be shy in making it clear that if the Supreme Court overturns Roe and Casey, then it will become an illegitimate institution and Congress will respond by packing the Supreme Court. Supreme Court packing was the first reaction when a majority of justices – in an entirely procedural ruling – allowed the Texas fetal heartbeat bill to go into effect. Any Democrat such as Joe Manchin or Krysten Sinema who refuses to go along with cracking the filibuster enough to pack the Court will face the same type of pressure as the Supreme Court justices will face.
- There also will be attempts to enact abortion as a federal right by statute. This, too, was promised by Nancy Pelosi in the wake of the Texas abortion case procedural ruling. A huge battle will occur in Congress. Pro-abortion Republicans will get plenty of air time on CNN and MSNBC to pressure their colleagues. Pushing legislation will serve as a tool to keep the left’s messaging front and center nationally and in the states. And if the Supreme Court does eventually rule to overturn Roe and Casey, this legislation will become the “prize” that liberals hope to secure in the 2022 midterm elections.
- Once oral argument occurs, there will be special pressure leveled on swing justices who are thought to be leaning to overturn the existing constitutional “right” to abortion. Recall the words of radical Rep. Maxine Waters who told leftists to not give any Trump administration official a moment’s peace. Politicians like Josh Hawley, Rand Paul and Lindsey Graham have all been targeted by the left at home and while out with friends and family. Supreme Court justices – as well as members of their families – can expect to be similarly targeted as well.
- The establishment, led by Big Tech and large corporations generally thought to be “conservative,” will weigh in for abortion, warning that a repeal of Roe and Casey will destabilize democracy.
- Virtually every professional association in the medical field will demand that the right to abortion be upheld nationwide “or people will die.” The same is true of the American Bar Association and most other elements of the legal profession.
The pressure campaign from the left will not go uncontested from the right, especially from pro-life activists. They will raise money, run ads, work social media, organize rallies and mount protests, realizing that the Dobbs case is the mother of all abortion cases. Unfortunately, they won’t enjoy anywhere near the same sort of media cover that the pro-abortion side will enjoy. That’s because many in the conservative media, especially Fox News Channel, are reluctant to champion social conservativism. To a lesser degree, the same can be said of many right-leaning digital media. General silence from FNC may prove an opening for other cable outlets on the right, like Newsmax and One America News Network. And pro-lifers will grow increasingly agitated at center-right news sites if they ignore the critical importance of the Dobbs case. Thus, reportage on the Dobbs case could play a role in a potential remaking of the center-right media landscape.
In short, the pressure on justices from both sides (but especially from the left) during the run-up to a decision in the Dobbs case will be unlike anything any justice has ever experienced in the history of our nation. It only takes two of the six “pro-life” justices to buckle. But will they?
Professor Michael Stokes Paulsen calls Chief Justice Roberts a “cautious institutionalist” who values stability, reliance and humility but at the same time believes that stare decisis serves institutional values only when it first serves the Constitution. He may be right in theory, but I don’t think he will be right in practice. In my view, Chief Justice John Roberts is virtually certain to succumb to the pressure he will face. His decision in the Obamacare case is a clear indication of his inability to handle intense pressure. Roberts was strongly believed to be in favor of rejecting Obamacare but reportedly changed his mind at the very last moment. His decision upholding Obamacare actually reads as if it was originally written to overturn it, and then poorly refashioned at the last minute. He also appears to have buckled to pressure from Senate Democrats not to take up an important gun rights case under threat that Congress would restructure the Court if it did. The Court did what the Democrats demanded. When Senate Leader Chuck Schumer publicly warned Justices Gorsuch and Kavanaugh not to uphold a Louisiana abortion law or risk “unleashing a whirlwind” such that “you won’t know what hit you,” Roberts issued a public rebuke of Schumer. That is well and good, but ultimately, he joined with the Court’s liberals to invalidate the Louisiana law in a 5-4 decision. Finally, and perhaps most significantly, Roberts joined with the Court’s liberals last week seeking to prevent the Texas fetal heartbeat bill from taking effect. Distinguished legal analyst Ed Whelan called Roberts’ position in the Texas fetal heartbeat case “most disappointing — because we should have expected so much better, especially from someone who often presents himself as very serious about jurisdictional limits on judicial power.” In a series of previous posts, Whelan had laid out in detail why Roberts’ jurisprudence on stare decisis should lead him to overturn Roe and Casey. Alas, Roberts’ betrayal of Whelan’s confidence in the Texas case makes it clear what he will do in Dobbs. In my view, Roberts’ vote is already lost; John Roberts is today’s David Souter.
In his ranking of the justices on their views regarding stare decisis, Professor Paulsen lists Clarence Thomas as the purest justice when it comes to refusing to give effect to demonstrably erroneous constitutional precedent. A close second is Justice Samuel Alito. Interestingly, both Thomas and Alito have all but invited a challenge to another illegitimate Supreme Court ruling, the 5-4 gay marriage decision in Obergefell.
Professor Paulsen believes that Justice Neil Gorsuch, like Thomas and Alito, is solidly of the view that Roe and Casey were wrongly decided. Further, “Gorsuch would never hide behind stare decisis to reach a result he thought badly wrong on the merits.” Let us hope that Professor Paulsen’s intuition is correct. Many social conservatives have grown quite wary of Gorsuch owing to his disastrous majority opinion in Bostock v Clayton County. In Bostock, Gorsuch ruled that in 1964 when Congress enacted Title VII of the Civil Rights Act, it banned employment discrimination against transgender individuals. We can only hope that Gorsuch does not invent some new rabbit hole in which he sees hiding a heretofore unknown reason to preserve Roe and Casey.
And what of Justice Brett Kavanaugh? Paulsen describes Kavanaugh’s views on stare decisis as “subtle and sophisticated” yet he says Kavanaugh believes stare decisis can “never entrench precedents that are ‘grievously or egregiously wrong’.”
With Kavanaugh, the anticipated pressure campaign could very well backfire. He was subjected to arguably one of the most brutally unfair Senate confirmation processes in history, worse even than what Justice Clarence Thomas endured, as well as the rejected Robert Bork. Further attacks on him or his family could well serve to buttress his already considerable concerns with stare decisis, cementing in him a view to overturn Roe and Casey.
That brings us to Justice Amy Coney Barrett. Professor Paulsen highly regards her substantial scholarship on the issue of stare decisis, written as a distinguished constitutional law professor and concludes, “It is simply unfathomable that Barrett would reaffirm Roe on the basis of stare decisis.” Certainly there are millions of Americans, especially social conservatives and people of faith, who have that very same expectation. They fought hard to help secure her confirmation to the Court in the belief that this pro-life mother would fight for life on the Court.
Thomas, Alito, Gorsuch, Barrett and Kavanaugh make five…finally, mercifully, ending Roe and Casey. Of significant note, these are the same five justices who comprised the majority allowing the Texas law to go into effect. If one of these five caves to pressure, however, Roe and Casey will endure and Dobbs will go to the front of a select list of infamous, illegitimate and anti-constitutional decisions issued by the Court such as Dred Scott v Sandford, Buck v Bell, Obergefell v Hodges and the aforementioned Roe and Casey rulings.
Depending on the outcome, the Dobbs case could have a monumental impact on public policy and the body politic for many years to come. If a majority on the Court votes to overturn Roe and Casey and return the abortion issue to where it belongs – in the hands of state legislatures and voters – conservatives will cheer the outcome and work their tails off to protect the victory in the 2022 elections by putting Republicans in charge of Congress and state legislatures. Abortion will become a dominant issue in campaigns across the country. Liberals will be apoplectic and do everything in their power to secure enhanced political power for themselves and their Democrat allies during those same elections.
However, if a majority of the Court leaves a federal constitutional right to abortion intact, I believe something very different will be the result, a result that will threaten the continued viability of the Republican party. Liberals will temporarily celebrate the ruling but soon will return to attacking Republicans and “Republican judges” as wanting to make abortion illegal. Their tune never changes.
Many conservatives, however, will likely have had enough. Enough of supporting Republican candidates who, once elected, do close to nothing to actually fight for conservative policies and principles. And enough of fighting to confirm federal court justices appointed by Republican presidents who end up caving when it matters most. Millions will be forced to confront the question, “what is the point?”
I hope that national Republican leaders from Sen. Mitch McConnell and Rep. Kevin McCarthy on down realize what is at stake for their party. Right now, there is little indication that they do. They should be pointing to Dobbs as an opportunity for the Court to correct a historic injustice that has sacrificed the lives of millions of innocents. Instead, they are silent, ceding the public square to Nancy Pelosi and Planned Parenthood who are busy trying to shape a national narrative in this vacuum of GOP leadership.
Let us hope and pray that the Court’s conservatives do what the Constitution requires and what moral clarity demands – end the illegitimate, unconscionable abortion regime imposed on the country nearly fifty years ago in Roe v Wade and later refashioned and reaffirmed in Casey. Nay, conservatives must do more than hope and pray. We must demand that the justices hold firm to the Constitution; we must support those courageous pro-life backers and nonprofit groups who are on the field of battle as the Dobbs case proceeds; we must insist that Republican leaders speak out forcefully and clearly for overturning Roe and Casey, and we must remember, always, the sixty million innocent souls who are watching from above to see if we – and the conservative justices of the Supreme Court – have the courage of our convictions.
Dobbs will be a case like no other.