Radical Times

A Radical Ruling for Radical Times

Shattered precedents are the signature of this era.

By JOHN F. HARRIS

Many people have suspected for years that this ruling was coming someday, and for the past seven weeks everyone has known to near-certainty that someday was finally at hand. So why did the official news, already forecast in a leaked draft opinion, that the Supreme Court on a 5-4 vote has revoked a constitutional right to abortion still land with such concussive force?

It turns out there is a difference between knowing in one’s head that something is coming and knowing as a visceral reality that it has finally arrived.

Here is what we now know: America is living in a radical age. In a sense, the justices who joined Justice Samuel Alito’s majority were declaring that they, too, wanted to get in tune with the spirit of the times.

The ruling was a reminder that those times are marked indelibly by the influence of former president Donald Trump. He appointed three of the five justices who made up the majority and ushered in an era in which unthinkable occurrences have come to seem routine.

Here’s what we don’t know: how a society already buffeted by radical currents will respond to this new incitement to cultural warfare—to be waged in Washington and dozens of state capitals. It’s the nature of radical moments, after all, that old assumptions are upended and familiar guideposts are rendered irrelevant.

Radical may seem like a strong word, but here I mean it simply in clinical terms—neither pejorative nor laudatory. Surely people who cheer the demise of Roe v. Wade, no less than those who deplore it, must appreciate the breathtaking character of the decision, even as Alito couched it as the purely rational conclusion of legal logic. In a legal system that rests foundationally on precedent, a narrow majority—one made possible through a combination of partisan calculation and the random chance of when a certain justice died—decided that this particular precedent is null and void. So, too, is a right that has existed for half a century, affecting the most intimate sphere of human life.

The specific moment in which the decision arrived made it possible to see its implications more clearly—as a piece of a larger whole. This was an astounding ruling, coming at the end of a week in which the public learned astounding things about what happened at the end of Trump’s presidency.

In January 2021, as President Joe Biden was taking office, it looked like six years in which Trump dominated American politics—two as candidate and four as president—were coming to an orderly end. Trump personally may have knocked down barriers of custom and decorum through outlandish rhetoric and behavior. But the larger political system looked intact and mostly unscathed—he was a ex-president now, discredited by his loss and his role encouraging the Jan. 6 riot.

In fact, it is only after Trump exited the presidency that we can see clearly how he knocked down barriers across the American polity. The demise of Roe v. Wade precedent is part of his legacy. So, too, is the historic precedent that says presidents gracefully exit power once a winner is lawfully declared.

The reality is shattered precedents are the signature of this era. Friday’s Supreme Court ruling is a useful occasion to think back over all the things one might once have assumed “that would never happen” — yet actually did in recent years. Alternately, think of the things that you assumed would happen, because that’s just how the American system of politics works, that ended up not happening.

Surely it would not happen that partisan opponents in the Senate would block a presidential nominee to the Supreme Court to fill a vacancy that occurred almost a full year before the president’s term came to an end—that’s not how the process works. But of course that is how it worked in 2016, which is why Trump’s pick of Neil Gorsuch got to vote to repeal Roe rather than Barack Obama’s pick of Merrick Garland to uphold it.

Surely a Supreme Court would never decide a polarizing social issue on a 5-4 vote—that’s just now how it works. It would take pains to arrive at a unanimous decision, as in 1954’s Brown v. Board of Education decision ending segregation, or at least produce an emphatic majority, as in the 7-2 vote when Roe was decided in 1973. Except that’s no longer how it works. Chief Justice John Roberts’ pleas for a narrower ruling in Dobbs v. Jackson Women’s Health Organization were met with contempt by his conservative colleagues, who felt five votes was plenty good enough.

Surely, the Supreme Court deliberations are treated reverentially, which is why draft opinions never leak. But in this case they did, a first in the modern history of the institution.

Speaking of institutions, surely proud members of Congress would have more loyalty to their institution and to the effective workings of constitutional government than they would have political party to a president from their party. That’s what forced Richard Nixon to accept his fate in the Watergate scandal and leave office, just a year after the original Roe decision. So far, that is not what is happening with this generation of Republicans in Congress, few of whom are turning on Trump even after this week’s revelations about how tried to enlist his Justice Department to make false claims of election fraud in his desperate bid to remain in office after losing the 2020 election.

All those surelys are a currency with no value in contemporary politics.

That is especially true of the question of what happens next. Many political analysts are predicting that the court ruling will activate progressives in ways that may help Democrats and eventually lead to abortion rights lost in judicial defeats being restored through political victories. Sounds plausible to me. But worth asking how many of those analysts forecasting forecasted Trump’s victory in 2016, or even that he would increase his vote total in 2020.

Even the Supreme Court majority doesn’t agree on what it has wrought. Alito’s opinion said nothing in the ruling would affect gay marriage, or the right to practice birth control, or other rulings that relied on some of the same legal reasoning as Roe v. Wade. But Justice Clarence Thomas issued a concurring opinion making clear that by his thinking, all those precedents should also be up for reexamination.

For now, a Supreme Court majority got the radical decision it wanted—and the reality that radical times lead to unpredictable outcomes.