life after roe

Trump’s Big Payback

Photo: Mandel Ngan/AFP via Getty Images

Today, Donald Trump delivered his end of the bargain he made with Republican elites and voters years ago. Support me despite my corruption, my gross personal failings and transgressions, and my persistent debasement of the presidency, and I’ll do your bidding on the issue closest to your hearts: abortion. The payback wasn’t delivered by him, but by the three conservative justices he put on the Supreme Court who helped execute the most significant rollback of constitutional rights in more than a generation.

The shock of the Court’s ruling in Dobbs v. Jackson Women’s Health Organization was mitigated by the unprecedented leak last month of a draft of the majority opinion authored by Justice Samuel Alito. The final decision is as expected and unambiguous: “We hold that Roe and Casey must be overruled,” Alito writes, later describing Roe as “egregiously wrong and deeply damaging” to the country and declaring that “the Constitution does not confer a right to abortion.” New restrictions on abortion are already snapping into place, and they will now be reviewed under the Court’s extremely deferential “rational basis” review standard.

The outcome in Dobbs, coming on the heels of other major victories for conservatives at the Court just this week, presents a challenge for observers in the media who might otherwise want to avoid journalistic clichés — that the result reflects a Court that has been fully captured by the right; that there is good reason to be worried about the status of previously well-established constitutional rights that are coded as liberal; that the politically and culturally revanchist conservative legal movement is not just ascendant but may now be the most powerful and influential group of judges and lawyers in the country, however small in number they may be and unpopular their policy goals. All of these clichés, at least at this moment, appear to be true.

The Court’s public legitimacy was already very shaky, thanks in large part to the conservative majority that issued the Dobbs opinion. All three justices appointed by Donald Trump — Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — are transparent and shameless political operators in their own ways. Clarence Thomas’s wife actively participated in the effort to overturn the 2020 election results, and we are supposed to believe that he knew nothing about this. Last fall, Alito publicly complained about coverage of the Court’s handling of Texas’s anti-abortion law SB 8 and “the false and inflammatory claim that we nullified Roe v. Wade” — the very thing that officially happened Friday. The imperious and unpersuasive public defenses have not worked. Public approval of the Court has been hovering near all-time lows, and Dobbs will likely make matters even worse. There is no excuse for violence, but the public disapprobation has been very well earned.

Like the leaked draft, Alito’s final opinion offers a preemptive response, though not a particularly convincing one. At one point the man who whined about a relatively unremarkable opinion article about him writes that “we cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work.” Elsewhere he distinguishes other decisions issued by the Court that have been rooted in constitutional privacy interests — including “the right to marry a person of a different race,” “the right to obtain contraception,” the “right to engage in private, consensual sexual acts,” and the “right to marry a person of the same sex” — but claims that “[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” We will learn in the years to come whether this is sincere, but you cannot blame people for being skeptical.

There are other writers who are better equipped to analyze the broader sociohistorical context of today’s opinion, as well as the likely fallout, but in a week that produced more evidence of Trump’s corruption and possible criminality, it is worth recalling how integrally the two are linked. Then–Senate Majority Leader Mitch McConnell kept open Justice Antonin Scalia’s seat after his death in February 2016, denying Merrick Garland even a hearing. Then three months later, as Trump was vying for the Republican nomination for president, he released an unprecedented list of potential Supreme Court picks, comprised of Roe skeptics and critics, in order to assuage elite conservatives skeptical of a womanizing former donor to Democrats who used to call himself pro-choice. It worked, allowing him to maintain Establishment support throughout a raft of spectacular scandals.

After winning the presidency, Trump and McConnell reshaped the courts at every level, installing conservative ideologues wherever possible, including some with very dubious credentials but potent political connections in the Republican Party. As a former adviser for McConnell put it, he knew “that from a legacy point of view … this is the most important thing you can do.” As for Trump, it is not clear whether he ever had much interest in Supreme Court jurisprudence, except insofar as it sometimes impeded his work, but he certainly understood how critical it was to his support within the party to maintain an assembly line of Federalist Society–approved judges and justices for confirmation. They will be among Trump’s most significant legacies even if he opts not to run for reelection in 2024.

The right’s decades-long effort to reclaim the Court and to overturn Roe has been one of its central, animating projects. It is one of the most significant reasons that Establishment conservatives supported him throughout every outrageous turn of his presidency — and why, even now, he would have a good (if not unquestionable) chance of getting the Republican nomination again if he wants it. Perhaps the information produced by the January 6 select committee will change the political landscape and drain a critical portion of Trump’s public support, but that very much remains to be seen, particularly after the Dobbs ruling, which Trump can — and probably should — claim as his most important and durable political achievement.

Say what you will about the conservative political and legal apparatus that brought us Dobbs. They made their peace with one of the worst and most morally bankrupt politicians in modern American history. At least they were effective.

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