The not-yet-final leaked draft of the Supreme Court decision revoking Roe v. Wade spurred revulsion among millions of Americans for its brazen attack on the right to an abortion. The decision, if made final, would constitute an unprecedented case of the Court revoking, rather than establishing, a constitutional right.
The draft decision was also no surprise to those paying attention to the drift of the judiciary over recent decades. Roe’s demise was set in motion when Senate Republicans stole a seat on the court by refusing to advance the nomination of Merrick Garland in President Obama’s last term, with the seat eventually being filled by Trump nominee Neil Gorsuch. That, plus two additional Trump appointees, resulted in a 6-3 advantage of conservatives over liberals that could steer federal jurisprudence for decades to come.
The final decision on Roe might be different from the draft, though it almost certainly will carve back abortion rights if it doesn’t eliminate them entirely. But the final opinion surely will represent yet one more Supreme Court decision unraveling the reputation of the federal courts as the best hope for protecting cherished rights, especially those of minorities, women and the poor.
For decades it was a matter of faith among liberals and the Left that if the elected government — whether federal, state or local — would not protect the rights of the nation’s vulnerable citizens, the courts, and especially the Supreme Court, surely would. The activist court under Chief Justice Earl Warren, himself an Eisenhower nominee, established this reputation with its groundbreaking decisions, starting with 1954’s Brown v. Board of Education, that outlawed racial segregation in schools and other public facilities. Decisions expanding social justice continued through Mapp v. Ohio (1961), Gideon v. Wainwright (1963) and Miranda v. Arizona (1966), all of which protected the rights of the accused; Reynold v. Sims (1964), which protected voting rights by requiring that congressional districts be roughly equal in population; and Loving v. Virginia (1967), which established the legality of interracial marriage.
Following Warren’s retirement, the Court’s momentum continued under Chief Justice Warren Burger, another Republican nominee (Nixon), with Roe in 1973 as well as 1971’s Phillips v. Martin Marietta Corp., which held that sex discrimination was prohibited under the 1964 Civil Rights Act. If a racist, police-dominated or patriarchal state or local government abrogated basic rights, or if the elected branches of government were too deadlocked to act, the courts appeared to be always available to deliver justice.
But starting with the Nixon administration, the course of the court began to turn. A key moment in the rightward shift was the circulation of the “Powell Memo,” a document produced in 1971 by corporate lawyer Lewis Powell and circulated to key conservative allies outlining how the American business establishment could claw back power gained over the years by unions, regulators, consumer advocates and similar liberal do-gooders. Part of that counterrevolution should be a conservative capture of the federal judiciary, especially the Supreme Court, he wrote.
Powell not only theorized a corporate takeover of the Court, he helped put it into effect when he joined the Court as a Nixon nominee later that year. Due largely to justices retiring or dying at the right times, Republicans slowly gained control of the Court. Since 1969, 15 Republican nominees have joined the bench, against only five picks by Democratic presidents (counting incoming Justice Ketanji Brown Jackson).
It took a while, but after the turn of the millennium decisions by the court favoring conservative interests came with regularity. Among them were Heller v. DC (2008), severely curbing the ability of state and local governments to control guns; Citizens United v. FEC (2010), allowing unlimited corporate independent expenditures for candidates (limits also were removed for unions and groups such as DSA, hardly an equitable exchange); Shelby County v. Holder (2013), which gutted the Voting Rights Act; and Janus v. AFSCME (2018), allowing public-sector employees to withhold dues from unions representing them in the workplace. The outlier among rulings from that period, Obergefell v. Hodges (2015) — which established the right to same-sex marriage — camouflages the true right-wing slant of the current Court.
But still progressives turned to the courts, usually with unsatisfactory results. Why? State and local governments often are held captive by racist legislators and corporate priorities. The federal government, with its separation of powers, tends to bog down in partisan gridlock. Even when Democrats are in charge of both the executive and legislative branches, the Senate retains its role in frustrating legislative initiatives through the disproportionate representation of rural, Republican-leaning states; the persistence of the filibuster; and the ability of right-of-center Democrats to suffocate legislation in the cradle.
We here in the colony that is the nation’s capital have experienced the futility of seeking relief through the courts. Twice since 2000, in the absence of congressional action to grant statehood or voting representation in Congress to the District of Columbia, local activists have launched suits that reached the Supreme Court hoping it would mandate expanded democratic rights for DC. Each time the court turned them away empty-handed. It is not clear that litigation-minded DC democracy advocates have gotten the message that this strategy is a dead end.
Liberal-left activists historically have turned to the judiciary notwithstanding that it is the least democratic branch of government. That can play both ways — an activist Supreme Court of liberal persuasion such as the Warren Court can advance rights and secure justice when no elected government will, while a conservative one can dial back rights just as quickly. But the problem remains that the court is unelected and justices are appointed for life, answerable to no one. Impeachment, almost never used, is the only brake.
Once the court has buried Roe, it could well come after other hard-won rights. Not only is expansion of LGBTQ+ rights off the table, but much of the Right is spoiling to undo same-sex marriage. Corporations have been eager to build on Citizens United to further take control of the political process — and just did, with the court’s recent ruling in a suit brought by Sen. Ted Cruz (R-TX) to remove limits on post-election contributions to candidates who loaned money to their campaigns.
What is the Left to do? With little likelihood of progress through the courts, what remains is to expand progressive, democratic policies through grassroots political action and organized labor power, not litigation. The Left must elect avatars at all levels of government to pass laws that secure basic rights — among them abortion and women’s rights; rights for LGBTQ+ persons, minorities, immigrants, workers and the poor; the right to a clean and healthy environment; and freedom from racist and oppressive policing.
The battle for basic rights has gotten tougher, which means the Left must get tougher. There are no shortcuts. As Robert Frost once wrote, the only way out is through.