Democracy Newsletter: February 2023
By Robert Katz
As we mark the 50th anniversary of Roe v. Wade, I note that the supporters of Dobbs v. Jackson Women’s Health Organization, the decision revoking the constitutional right to an abortion, have sought to draw celebratory parallels between that decision and Brown v. Board of Education. This was the case that recognized the principle that “separate but equal” treatment of Blacks and Whites in segregated schools was incompatible with the Equal Protection Clause of the Fourteenth Amendment. Like Brown, Dobbs overturned a foundational precedent that had been in force for decades, and according to anti-abortion proponents, established an important right — the right to fetal life — denied by the discredited precedent. The Dobbs opinion itself referenced Brown a number of times, and Mitch McConnell said of the Dobbs decision: “The Court has corrected a terrible legal and moral error, like when Brown v. Board overruled Plessy v. Ferguson.”
But the differences between Brown and Dobbs far overshadow their similarities. There is the much-discussed issue of how these decisions used history. The Brown court refused to be bound by the views of those who ratified the Fourteenth Amendment in 1868. The vast majority of those legislators almost certainly would have approved of racially segregated schools. In contrast, the Dobbs court found the fact that abortion was widely criminalized in 1868 to be decisive. Had Brown followed the Dobbs court’s method of constitutional reasoning, it would have upheld Jim Crow schools.
However, I would like to focus on another critical difference — the conditions under which the precedent was overturned. In Brown, the court was undoubtedly influenced by the changing attitudes toward race in the US. Having just fought a war against an enemy whose core ideology was extreme racism, and in which Black Americans served valiantly, the post-war period saw a reevaluation of racial attitudes. According to polls undertaken by the National Opinion Research Center, in 1942, only 42 percent of people believed that Blacks were the intellectual equal of Whites. By 1956 that number had risen to 78 percent. In 1942, 30 per cent believed that schools should be integrated; the percentage rose to just under 50 in 1956, and to over 60 per cent by the 1960s. The Brown court was not only influenced by changing attitudes toward race, but as these statistics suggest, helped to further catalyze that change by putting its imprimatur on the doctrine of racial equality. Reality has a way of intruding, however belatedly, on myth, and the myth of Black inferiority gradually gave way to the reality of Black equality.
By contrast, views on abortion remained fairly constant in the 30 years prior to the Dobbs decision. According to the Pew Research Center, 61% of those polled in 2022 believed that abortion should be legal in all or most cases, about the same percentage as those polled in 1995, with some fluctuation. Unlike racial attitudes, there was no corresponding shift in attitude away from abortion rights. The differences between a 15-week-old fetus and a newborn infant are significant, physiologically and neurologically. One can argue about the moral significance of those differences, but nothing we have learned about the science of fetal development since the abortion right was recognized in Roe has been cause to reevaluate one’s position on abortion.
What made Dobbs possible was not shifting societal attitudes on abortion but a decades-long campaign on the part of right-wing politicians and their attorney counterparts to appoint antiabortion judges to the United States Supreme Court. As has been much discussed, the Federalist Society, since its inception in 1982, has played a preeminent role in choosing federal judges. After their initial disappointments in the appointments of moderate Sandra Day O’Connor, sometimes moderate Anthony Kennedy and the downright liberal David Souter, the Society developed a sure-fire vetting process, generally recruiting from among their own ranks. Since the appointment of Clarence Thomas by George H.W. Bush in 1991, no Republican president has appointed anyone not affiliated with and/or blessed by the Federalist Society.
When it came to the Trump presidency, the predominance of the Federalist Society in choosing judges was on full view. In exchange for social and religious conservatives overlooking Trump’s many personal failings, he outsourced the vetting and selection of judicial candidates to the Society. Aided by Mitch McConnell’s infamous constitutional hardball, Trump got an appointment that should have been President Obama’s, then a second appointment with Justice Kennedy’s strategic resignation, and a third with Ruth Bader Ginsburg’s passing on the eve of the 2020 election to cement the Dobbs majority. So, the success in overturning Roe, unlike the success of Brown, is not a story of society’s evolution on the abortion issue, but of consummate political engineering to change the high court’s personnel.
It is said that the process of judicial decision making is fundamentally different from politics — that judges must at least appear to be interpreting rather than making law. But it is clear that the overturning of Roe did not really occur in the judicial chambers of the Supreme Court, but upstream, in the precincts of the Federalist Society and the decisions of Republican presidents and senators. And unlike Brown, a decision that is now almost universally accepted and praised, it is most unlikely that Dobbs, a decision that never even acknowledged the enormous burden that abortion bans place on women’s liberty, will ever enjoy such widespread acceptance. Its legacy instead is likely to be the further politicization of the High Court and degradation of its reputation.
Given the right-wing playbook of exerting political power to appoint ideological judges, there likely will come a time when the Democrats will be in a position to answer politics with politics in the form of increasing the number of members on the High Court or requiring that Supreme Court justices are rotated out of the court after a term of years. Whatever form it takes, Democrats will follow the path laid out by Republicans that the key to success in the Supreme Court is to choose, by whatever means are expedient, the right Supreme Court justices.
Robert Katz served as a senior attorney and supervising attorney at the California Supreme Court from 1993 to 2018. Before that, he was in private practice representing public agencies, and worked as a newspaper reporter covering local government in Santa Cruz County.
Mitch McConnell quote:
National Opinion Research Center survey:
Public Opinion on Abortion (Pew Research Center):
Federalist Court (Slate.com):
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Steve Zolno is the author of the book The Future of Democracy and several related titles. He graduated from Shimer College with a Bachelor’s Degree in Social Sciences and holds a Master’s in Educational Psychology from Sonoma State University. He is a Management and Educational Consultant in the San Francisco Bay Area and has been conducting seminars on democracy since 2006.