The Dobbs decision has divided our nation–perhaps even more than it was already divided. The pro-lifers have celebrated the decision, while the pro-choicers have bitterly denounced it. Many pro-lifers have celebrated a decision that they think has made abortion illegal nationwide; pro-choicers denounce it for the same reason. But the decision hasn’t actually affected the nation, as a whole. Instead, the Supreme Court majority has reversed Roe by returning the decision about the legality of abortion to the states, where, as the dissenters in Roe itself argued, it always belonged. The question in Dobbs is not whether legalizing abortion is a good idea; the question is who should decide. Does the Supreme Court have the authority to fashion a right to an abortion that isn’t in the constitutional text itself? Or are abortions subject to the “police” power of the state? In reversing Roe, the Supreme Court has chosen the latter and abandoned the approach it maintained from Roe until the present. It has abandoned Roe because the Dobbs majority thinks it was both wrongly decided and unworkable as a standard for the Court. Despite what many are saying now, Roe did not in fact establish an absolute right to an abortion. Instead, it tried to balance the state interest in potential life with the woman’s right to privacy. Viability was the standard on which that balance mostly turned. In other words, Roe required the Court to make an essentially political judgment as to the nature of this balance and as to the question of viability. In overturning Roe, the Court isn’t announcing that there is no right to an abortion; it has merely decided that this question ought to be left to state determination. But Roe was also making a determination that included the state power to protect potential life. In this way, Dobbs doesn’t change as much as everyone seems to think it does.
Ultimately, the overheated reaction to Dobbs indicates well the paucity of our civic education. Because people don’t sufficiently understand the Court’s limited role in our constitutional order, they don’t understand why Dobbs would give the decision on abortion back to the states. The Court has made a constitutional argument regarding where the question of abortion’s legality ought to rest. But, because we don’t have the civic education to understand the difference between a constitutional argument about jurisdiction and a political argument about abortion, we fail to appreciate the difference. Many in blue states think their ability to have an abortion has been taken away. Given the politics of abortion in blue states, this is highly unlikely.
All that being said, the failure of our civic education is related to our belief in judicial supremacy. The Supreme Court has for a long time now claimed that it speaks for the Constitution itself and that its rulings are equivalent to the Constitution. The claimed constitutional supremacy of the Court makes it difficult to understand why it’s giving up its authority over abortion in Dobbs. If the Supreme Court speaks for the Constitution, then doesn’t its decision about abortion indicate that it thinks abortion a bad thing? Why wouldn’t abortion be protected by the Supreme Court unless the Supreme Court is opposed to it? The supremacy of the Supreme Court makes us believe that any question it decides must also be the final word. Inviting the states into the conversation about abortion only makes sense if the Supreme Court isn’t the final word on all claimed rights. Given the Court’s claim about its supremacy alongside our belief in it, it’s hard to fathom the adjudication of rights being done by any body other than the Court.
2 thoughts on “Dobbs, Civic Education, and Judicial Supremacy”
Although I am very sympathetic to the claim that judicial supremacy magnifies conflict and misleads Americans about the nature of their Constitution and their political order, I am not convinced that this case is the right occasion for this critique. You suggest that judicial supremacy distorts the key fact that the decision is mainly about federalism and not about dismissing a right to an abortion. The Court differs.
“We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision” (5). Plainly, the Court announced that there is no right to an abortion under the Constitution. If there is no right to an abortion, a future Congress might ban the procedure from the moment of fertilization as several already existing proposed bills do. In his concurrence, Kavanaugh overtly stated that “The Constitution is neutral and leaves the issue for the people and their elected representatives to resolve through the democratic process in the States or Congress” (3). So a future anti-abortion law by Congress is presumptively valid (The decision doesn’t say that pro-choice laws would be unconstitutional, but I am skeptical such laws would receive equal justice from this Court).
In short, the protests and the celebrations seem quite sensible in the light of the practical and political significance of this ruling across the nation.
I think I agree with everything you’ve stated here. I’m concerned that our legislatures as currently constituted are not well positioned to find the true will of the people on abortion, and so I’m calling for the use of Citizens Assemblies for this purpose. I’d be interested to hear what you think about this idea. https://docs.google.com/document/d/13cNnEOocSen2HhBj4Erz8BYDbDzYxsUw2dlztjKxlsU/edit?usp=sharing