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Let’s get complacent!


Of the elite liberal lawyers who have decided to run cover for our neoconfederate juristrocracy, Akhil Amar has been the most depressing. With Roe about to be overruled, he is back to tell is that Alito is right, and ignore the parts of his opinion where he says that all of the privacy and sexual autonomy and equality cases were wrongly decided:

Today, the Supreme Court’s 1973 opinion in Roe v. Wade, written by Justice Harry Blackmun, is similarly ripe for reversal. In the eyes of many constitutional experts across the ideological spectrum, it too lacks solid grounding in the Constitution itself, as Justice Alito demonstrates at length in his leaked Dobbs draft. (Full disclosure: The draft cites me and several others as constitutional scholars who oppose Roe but personally support abortion rights.) Even the late Justice Ruth Bader Ginsburg was sharply critical of the decision.

I especially hate the “eventheliberal Ruth Bader Ginsburg” argument — saying that the decision should have rested on equal protection rather than due process is very different than saying that the case was wrongly decided, and of course she did not believe the case should he overruled.

Anyway, I’ve already explained why I think Amar’s attempt to set Roe apart from the other privacy cases is specious and won’t get into it here in great detail. Amar is essentially playing the old ladder of abstraction game — the rights he likes (like same-sex marriage) are defined at a high enough level of generality that you can claim they’re “deeply rooted” in America’s constitutional tradition even the right was not recognized in any of the 50 states as of 2000, and the ones he considers second-class (like reproductive freedom) are defined at a level of specificity that makes it impossible for them to be considered “deeply rooted” by definition. At any rate, since it will be Brett Kavanaugh and Amy Coney Barrett who decide which rung we stop on what Amar would prefer to do is beside the point. (It also seems relevant that the actual author of the draft opinion has repeatedly said that Obergefell is wrong and should be overruled.)

But where I really start to get mad is with this:

So long as abortion remains legal in many blue states—and nothing in the Dobbs draft dictates otherwise—most women who miss deadlines in their red home states should be able to travel to get the treatment they desire. Indigent women will doubtless experience special burdens, which makes it imperative for charities to ramp up assistance for women in distress.

This will hurt you more than it hurts me!

Look, the typical woman is probably traveling to nine or ten academic conferences a year, right? So if one time she has to fly to get an abortion instead, what’s the big deal? Maybe there are a few women who, say, work multiple jobs where they can’t easily get time off and afford to buy airline tickets and lodging and also have child or elder care responsibilities, but um charities humina humina humina. Also note that “should be” able to travel wording, as if red state governments haven’t thought of that and won’t start putting up legal barriers this Supreme Court is enormously unlikely to declare unconstitutional.

But wait, what about the very real possibility of a national ban? You think the stuff about charities is handwaving, check out these two bland sentences:

A very different issue, however, would arise were Republicans to sweep national elections in 2024 and then pass a national abortion ban. This is the scenario that should set off the loudest alarm bells for Americans who support abortion rights.

Yes, that would be a different issue! Seems bad! Perhaps we should explore this issue further, since your saying that overruling Roe is good? Nope, he moves right along to what is the real heart of the argument:

As for concerns about judicial partisanship more generally, we must remember that in recent years conservative justices have repeatedly crossed the aisle to give liberals victories in high-profile cases. This is not an everyday event, but nowhere else in America do conservatives cross over nearly so much when it matters. Thus, Chief Justice Roberts joined liberals to uphold Obamacare in three different cases over the course of eight years and also crossed the aisle to invalidate the Trump administration’s improper treatment of noncitizens in the 2020 census. He also joined liberals to affirm sweeping rights of gay employees in the private sector, in an opinion authored by a Trump appointee, Justice Gorsuch. The chief justice and another Trump appointee, Justice Kavanaugh, also sided with the liberals in little noticed but hugely consequential cases involving the presidential election of 2020.

Notwithstanding the alarms triggered by the Dobbs leak and draft, what I told the Senate back in 2018, testifying as a Never Trumper in support of Brett Kavanaugh’s nomination to the Court, remains true: “Americans generally and with good reason view today’s Court more favorably than today’s Congress and Presidency. The current justices are outstanding lawyers who do loads of close reading, careful writing, and deep thinking; try hard to see other points of view; spend lots of time pondering constitutional law; and spend little time posturing for cameras, dialing for dollars, tweeting snark, or pandering to uninformed extremists or arrogant donors. Can today’s President and Congress say the same?”

The idea that the Court isn’t partisan if it doesn’t side with Republicans in literally every case is so silly that to state it is to refute it. It also shows how far the Court is to the right that the Court narrowly rejecting unserious ad hoc arguments to strike down the most important social welfare policy enacted by Congress since the Johnson administration is a sign of “nonpartisanship.” The idea that the justices are “deep thinkers” reminds me of Robert Cover’s observation that he couldn’t imagine reading what Warren Burger had to say about the law if he didn’t command the power of life and death. And as for the high public esteem in which the Court is allegedly held, well, about that. And it’s about to get worse, for good reason.

So what we see here is two related pathologies — affluent men in liberal jurisdictions arguing that other people losing their rights is no big deal really, and elite legal liberals who need to believe fairy tales about our brilliant, apolitical courts as a group of undistinguished hacks impose an extremely unpopular policy agenda on behalf of a party that has one the national popular vote once since 1988. It’s bad, you know.

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