The Brooklyn Rail

MAY 2022

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MAY 2022 Issue
Field Notes

The End of Roe

The Constitutionalization of Politics and Its Consequences

Horydczak, Theodor, <em> U.S. Supreme Court interiors. Corridor, U.S. Supreme Court.</em> Washington D.C, None. ca. 1920-ca. 1950. Photograph. https://www.loc.gov/item/2019682575/.
Horydczak, Theodor, U.S. Supreme Court interiors. Corridor, U.S. Supreme Court. Washington D.C, None. ca. 1920-ca. 1950. Photograph. https://www.loc.gov/item/2019682575/.

The Supreme Court’s overturning of Roe v. Wade should and will prompt no little reflection on the state of many struggles today. How and why did the mainstream abortion advocacy movement become so focused on national-level fundraising and litigation, at the expense of engaging with (let alone learning from or being led by) local activists? What was lost by reducing the scope of struggle from reproductive justice to personal choice—by reducing the question of abortion from freedom from state violence and gendered domination to the freedom to obtain a medical commodity? What is the fate of other policies that persist only by the grace of a majority of the Court’s justices?1

Definitive answers to such questions will be complex and multifaceted. But searching for answers will require engaging with another question: How did it come to pass that major questions of policy have been transformed from political ones to legal ones? What are the costs of the legalization of politics, such that decisions affecting the freedom, dignity, and safety of so many people should be decided on the basis of technical, recondite, and obscure considerations (otherwise known as “law”) that distort the stakes and obscure the social relations in question? And why are such decisions left to a manifestly undemocratic body? How do we get out of a system in which emancipatory political struggle is subordinated to—and strangled by—constitutional law?

* * *

In 1959, Mack Charles Parker was lynched in the middle of the night in Poplarville, Mississippi. A twenty-three-year old Black man, Parker was in jail awaiting trial on charges of raping a white woman, June Walters; he denied the charges and Walters had not identified him as an assailant. A white mob dragged Parker from his cell, beat him, shot him, and dumped his body in the Pearl River. When a grand jury was assembled later that year, Circuit Judge Sebe Dale instructed the jurors to be mindful of the broader political climate. Civil rights struggles had been steadily garnering national media attention; the Fifth Circuit had just voided the murder conviction of another Black Mississippi man because the verdict was delivered by an all-white jury. After declaring to the all-white grand jury that they were fighting “for the preservation of our freedom and way of life,” Dale urged them to “have the backbone to stand against any tyranny, even including the board of sociology, sitting in Washington, garbed in judicial robes.”2 No indictment was returned.

Dale had not chosen the phrase “board of sociology” lightly. The Court had recently ruled, in Brown v. Board of Education (1954), that school segregation was unconstitutional—prompting nationwide white fury. Whites directed their rage at many targets (especially Chief Justice Earl Warren), but one of their more curious obsessions was with Footnote 11 in Brown, in which the justices cited An American Dilemma, the 1944 book by the sociologist Gunnar Myrdal. Myrdal’s work was not a major premise in the justices’ reasoning. Nevertheless, white supremacists eagerly pointed to the reference to social science research as damning evidence of the Court’s departure from constitutional fidelity, of its disdain for (whites-only) democracy, and of the justices’ elitism. That the Warren Court had dared to look beyond the four corners of the constitutional text and acknowledge social reality long remained a scandal for conservatives. In 1967, during a crescendo of Black political activity on and off the street, an Ohio congressman had no difficulty in pinning the blame on “sociological gobbledygook which gives a rationale for plunder and lawlessness.”3

“Sociological gobbledygook” was exactly the phrase that Chief Justice John Roberts used, half a century later, to dismiss the relevance of social science to constitutional law. In oral arguments for Gill v. Whitford (2018), he pretended not to understand the arguments presented by the plaintiffs in a suit brought against a gerrymandered redistricting map in Wisconsin. Roberts—a Harvard graduate, a Federalist Society luminary, and (perhaps it bears repeating) the Chief Justice of the United States—put on a show of folksy simplicity. He mused that “the intelligent man [sic] in the street” would regard the application of empirical research to the Court’s reasoning as “a bunch of baloney.”4 It was a bravura performance by a canny jurist, one whose wildly successful career is founded in part on an ability to portray conservative political positions as common-sensical, reasonable, and non-partisan. (Roberts’s apple-cheeked mug, unctuous smile, and affable public demeanor make him a far cry from conservative judges who have stalked liberals’ nightmares in the past, such as Robert Bork or Antonin Scalia.)

When the time came to make a decision in Gill, Roberts and his colleagues declined to take a stand on the question of how much gerrymandering is too much. (It would be better, they argued, to leave such decisions to gerrymandered electorates.) Public comment focused on the role of expert knowledge in judicial decision-making, with plenty of dire warnings—this was during Trump’s second year in the White House, after all—about the future of democracy. But few voices were raised in objection to the fact that things had come to such a pass in the first place—that is, that the Supreme Court could exercise its power of judicial review to decide such matters by fiat. If it was easy to decry the insincerity of the justices’ professed respect for democracy, it was much harder to reckon with the manifestly antidemocratic character of judicial review. As ever, liberals had less of a problem with elite jurists deciding matters of public policy than they did with the fact that the jurists had decided incorrectly. Democracy’s being at stake naturally meant that expert judgement, correctly exercised, was required to save it. This was of a piece with liberal confusion throughout the Trump presidency, which was regarded as a unique threat to multiracial democracy—which could be saved, not through direct action or collective struggle, but only through the exercise of a franchise that that had been restricted, suppressed, and rat-fucked long before the rise of Trump. And that franchise required expert protection.

Roberts and his colleagues have played crucial roles in Republican attempts to manage electoral outcomes, notably in Shelby County v. Holder (2013), in which the Court struck down key provisions of the Voting Rights Act of 1965. But the solid conservative majority on the Court is an outcome of, not a precursor to, conservative political ascendancy. The conservative justices are the (highly-empowered) agents of a major social movement, one that has now achieved one of its signature goals.

* * *

When Roe v. Wade was decided in 1973, the Supreme Court was not deciding on the constitutionality of national legislation regarding abortion. The 7–2 ruling that vindicated a right to privacy that encompasses seeking an abortion was handed down in a case involving a Texas statute. The precedent set in Roe (and subsequently whittled down, for example in 1992’s Planned Parenthood v. Casey) became the cornerstone of national abortion policy. Indeed, national abortion policy has been crafted almost exclusively in a judicial register. This has been a slow-motion disaster for the millions who have sought abortions in the half-century since Roe—a decision that provided conservatives with an ideal bête noire and liberals with a perfect excuse to avoid engaging in politics. The precariousness, unevenness, and inequality that characterize the current abortion regime are due in no small part to its having been crafted through judicial review rather than legislation (let alone political activity in the street).

The Supreme Court is the final court of appeal, the ultimate authority at the top of the judicial hierarchy. But like any apex court, its role as the highest court of appeal is manifestly not one of dispensing justice to the deserving and handing down penalties to wrong-doers. The Court is, instead, the institutional modality for resolving questions of legal conflict and ambiguity at a national level. The justices agree to hear only a tiny fraction of the appeals that come to the Court. Their choice of which cases to hear is not motivated by a desire to right wrongs. Instead, they select cases that turn on questions or controversies regarding law itself. This does not mean that the justices are uninterested in politics; although they would never admit it publicly, the justices are better positioned than most to be able to see that in many ways the distinction between law and politics is a spurious one.5 The Court is and has been a political institution throughout American history. Its decisions take the form of legality—but the content within that form doesn’t just have implications for policy; it is policy.

Judicial review appears nowhere in the text of the Constitution—a document written and ratified to protect property, defend slavery, and suppress popular democracy—but the way the American state developed after the Civil War is unimaginable without it. The US is distinguished by its extensive legalization of questions of constitutionality, and its extensive constitutionalization of politics. Whether or not something is constitutional frequently gets decided in court, not through other forms of institutional conflict—let alone extra-institutional conflict. The Supreme Court declared itself to be the final interpreter of constitutional meaning in Cooper v. Aaron (1958)—but this could become an enduring reality only if elected national politicians found it useful and were willing to abide by the framework of judicial supremacy. And they have done so. The creation of the modern American administrative state, and contests over its form and content, involved intimate partnerships—sometimes silent, sometimes not—between justices and presidents and legislators. In the words of the political scientist Keith Whittington, the Supreme Court’s supremacy as the final arbiter of constitutional meaning is erected atop “political foundations.”6 The Court enjoys as wide a scope of action in judicial review as it does precisely because successive presidents and congressional majorities have found it useful.

The United States does not have a modern constitution such as may be found in many other polities throughout the world. As a text, it is unusually brief, sparse, and selective. This is hardly surprising, given that it was created by property-holders for the protection of their property—in land, commodities, and human beings—against mass democracy. It erects higher barriers to amendment than any other national constitution in the world. And it is silent on most topics, other than the cornerstones of bourgeois constitutionality—“the rule of law and of money.”7 It makes no explicit provision for the competence of the national government to monitor food quality; to maintain an air force or an arsenal of world-ending warheads; to protect threatened ecologies and sustain biodiversity; to conduct monetary policy with the dual aim of managing unemployment and controlling inflation; to permit or prohibit the use of proportional representation or ranked-choice voting in elections; or to permit or prohibit abortion.

It is an article of faith in American civil religion that the United States is a young polity of a new type. Americans are constantly told that their society is the modern world’s first democracy. And yet its constitution is one of the most antiquated and antidemocratic of those still in operation. As W. E. B. Du Bois lamented in his Black Reconstruction—still the most important single text on American constitutional history, and much else besides—not even the general rebellion of Black slaves, the industrialized slaughter of the Civil War, or the creation of the Reconstruction Amendments were sufficient to undermine the cult of constitutional continuity.8 The constitutional order failed on its own terms in 1861. But Lincoln nevertheless insisted on fidelity to the slavers’ constitution even as he expropriated them. And the Radical Republicans, for all their vaunted radicalism, sought to recuperate the antebellum constitutional order, sans slavery; they did not attempt to replace it. Where other countries’ contemporary constitutions reflect more recent struggles, the American constitutional order continues to efface any evidence of struggle behind it.

How, then, did an elitist, antidemocratic constitution, one framed and ratified by propertied elites and structured to shield slavery from political contestation, serve as the basis for the development of the American state as we know it today? How can a flimsy document from the eighteenth century that emphasizes property rights rather than voting rights be the adequate foundation for a polity that is a world-spanning hegemon, the global center of accumulation, with pretensions of being a multiracial democracy? Answering these questions requires an understanding of the Supreme Court’s role in American political development.

The Court’s role in the postwar polity has been to serve as an important adjunct to national political blocs as they contend for control of the bourgeois state, and for influence over the trajectory and reproduction of a society utterly dominated by capital accumulation. This role is twofold: (1) serving as a means of entrenchment for particular policy regimes, shielding them from revision or retrenchment in the event of shifting electoral fortunes; and (2) acting as partner to national political coalitions in the establishment, justification, or implementation of unpopular policy initiatives. It fell to the Warren Court to make inroads against segregation, racist policing, and the legal residue of Jim Crow when presidents and Congresses would not risk their political fortunes by doing it themselves.

Allowing the Supreme Court to decide on aspects of national policy—such as school desegregation, criminal procedure reform, or abortion—relieves pressure on presidents and legislators who would prefer not to court controversy. It diminishes the political salience of questions of constitutional interpretation—including the question of whether the existing constitutional order is at all a desirable one—and turns them into technical questions addressed by experts. Abortion policy is a perfect example of this; Roe reads as though it were written with the single-minded purpose of not manifesting a constituency that would have a stake in it, and the past half-century of liberal quietism has done little to make things otherwise.

This is not to say that the Supreme Court can stay out of step with public opinion for very long.9 And here, the fact that abortion has been such a persistently controverted topic for so long points to why the conservative legal movement has achieved such a major success. The rise of “originalist” jurisprudence—which purports to restrict itself to clearly-identifiable constitutional meanings, except when it doesn’t—was made possible, in part, by a robust political movement animated by opposition, not just to abortion, but to the dissolution of hierarchies of race, gender, and sexuality.10 Originalism is the jurisprudential counterpart to a vigorous political project with a substantial constituency—one that is not counter-posed by any comparable project by progressives.

Indeed, public opinion is the one arena where liberals have been unwilling to fight when it comes to abortion. Not only do they prefer to fight for legal rights to access abortion, rather than for the provision of a minimally decent array of reproductive health services that include abortion; they also prefer to conduct the fight in the register of constitutional jurisprudence. This is telling; they like fancy phrases, but only of the most crabbed and ridiculous kind: legal ones. The casuistry of constitutional law is the only register in which liberals are comfortable talking about abortion. And law is an innately conservative practice. Bourgeois right as we encounter it in the constitutional text, cases, and doctrine is the legal appearance of a society dominated by capital accumulation; it is not the foundation for any kind of emancipatory politics, no matter how etiolated or mediated.

No progressive counter-power has been built to rival the Federalist Society or the US Chamber of Commerce. Liberals have painted themselves into a corner of constitutional conservatism, defending a constitutional consensus without a constituency (and whose parameters are invisible to most people). Many features of the administrative state (made possible in part through judicial acquiescence), labor law, and the paltry abortion regime that exist today were not produced through concerted mass struggle but through judicial review. And many of their features were created precisely in order to demobilize or disarm pressure from below. For example, labor law as it exists in the United States thwarts the development and exercise of workers’ collective agency, rather than empowering it; it serves to “normalize and reify class.”11 The result is that many aspects of state intervention and regulation have had their contours shaped by jurisprudence rather than struggle.

Abortion jurisprudence is a perfect illustration of the limits and contradictions of liberal anti-politics. Liberals have tended to be fixated on preserving flawed victories and dubious prizes secured in the courts, rather than engaging in political contestation.12 They have sought to defuse social antagonism rather than exploit it. For half a century, liberals have focused their energies not on supporting struggles for meaningful health care provision, but on the legal fight to secure the jurisprudential foundations of abortion access. This is a paradigmatic instance of constitutionalism as depoliticization, an utterly unsurprising appearance of the “concentration of bourgeois society into the form of the state,” one that turns social questions into technical ones and reduces contestation to technical debate.13

* * *

The conservative legal movement’s ascendancy is an index of the outcomes of social struggle over several decades. The limited form of abortion access—the term is used advisedly—protected by Roe has been chipped away by concerted conservative political antagonism ever since. The Court’s strangulation of abortion is the ratification of a long-term process. But even as the courts roll back the limited gains secured through previous episodes of judicial activism, liberal politicians have little to offer even to their own disappointed voters—precisely because they have fully invested in the depoliticization of abortion policy through its constitutionalization.

Contrary to liberal common sense, the problem is not that the Court is making incorrect decisions; nor is the solution to be found in technocracy or in finely crafted legal arguments. The problem is that, even going by the prevailing standards of other bourgeois democracies, the United States is profoundly undemocratic. This is not so much the case because of (allegedly only recent) democratic backsliding as it is the consequence of an enduring constitutional practice that is all about stifling and constraining mass collective action. It doesn’t take any great amount of digging to unearth the blatantly antidemocratic character of the US Constitution. Its framers were explicitly opposed (and reacting to) mass publics being involved in politics.

“Constitutions are what they become,” wrote C.L.R. James in his history of the Haitian Revolution—the first revolutionary struggle against North Atlantic settler-colonialism.14 As Du Bois ruefully chronicled, the American constitutional order has a knack for becoming what it always has been.15 Despite the (mostly anonymous and unmemorialized) heroism of those who struggled against slavery and Jim Crow, both Reconstruction and the Civil Rights Movement were ultimately vulnerable to revision and effacement by reactionary politicians and jurists seeking to restore the rule of propertied white male settlers. The Roberts Court—with its assaults on the Voting Rights Act, its enthusiasm for the segregationist “right to exclude,” its erosion of the regulatory capacities of the administrative state, and now its attack on abortion—is simply the latest manifestation of the constitutional order’s institutionalization of minority rule and white patriarchal domination. It would be a grave error to attempt to confront such power on its own terms and on its own turf. Constitutional law is not where such a battle should be fought. We can lament the passing of the (flawed) post-1965 multiracial democratic order without fooling ourselves into thinking that it was adequate even on its own terms, let alone as a basis for emancipatory politics.

* * *

It would be unwise to try to articulate and then advocate a specific, point-for-point program for how to ensure that people who want or need abortions can get them. Such an instrumentalist and programmatic approach short-circuits the necessary work of looking to and learning from actual struggles: struggles for the abolition of gendered domination, of cops, prisons and the carceral state; struggles to secure access to clean water and air; struggles for solidarity and dignity in the teeth of capitalism’s domination, exploitation, and exhaustion of individuals and the world they live in. But there is a second reason why it would be unwise—to put it mildly—to offer an instrumentalist and programmatic account of how to get from here to there. Abortion struggle requires that we reckon with our own powerlessness. Whether or not those who favor abortion outnumber or are outnumbered by those who oppose abortion, the latter group has the upper hand. They are mobilized, organized, and have secured the institutional capacities necessary for pursuing their goals. They have been aided, of course, by the antidemocratic and minoritarian structure of the American polity; but they have been aided further still by their opponents’ unwillingness to fight them on any other terrain. In the half-century since Roe, little has been done even in the realm of parliamentary politics to secure a political (rather than jurisprudential) foundation for any kind of meaningful system of abortion provision. Meanwhile, going forward, abortion struggle will likely be conducted in a fugitive or insurgent register. We should, at the very least, guard against the absorption of such struggle into liberal enthusiasm for institutionalization, legalization, and constitutionalization.

The absurdly dubious liberal wager—that we can vote and donate our way towards a legislative majority that might one day manage to advance a few right-thinking people into that most conservative of institutions, the judiciary—was, is, and will remain a graveyard of emancipatory social movements in the US. The history of the Court’s rulings with respect to race illustrate this perfectly. It is strange to put one’s trust in an institution whose secretive and unelected members can make policy decisions affecting millions on a whim—or out of disdain for “sociological gobbledygook.” But in fact the situation is far grimmer than that. Reactionary jurists are motivated not by whimsicality but by their commitment to the politics of domination, subordination, and hierarchy. This challenge can be met only through forms of struggle that do not trade on fetishized understandings of the capitalist state as the proper or natural arena for political contestation. The conservative legal movement has long understood that despite the Court’s appearance as majestically separate from society, it is neither insulated from politics nor non-political in its own right. We are now in a position to see what liberal insistence to the contrary has gotten us.

Indeed, fighting for abortion is an abolitionist and insurgent struggle. In the face of reactionary jurisprudence and a constitutional order that enables rather than frustrates minoritarian and white supremacist rule, only massive disobedience can protect us from the state coercion and surveillance that underpin a legal regime of forced gestation and birth and of the violent reproduction of hierarchies of gender and sexuality. The specifics of such a struggle cannot be determined or dictated in advance of their actual practice. But we can be certain that the form of any such struggle cannot be constitutional if it will be enduringly successful.


  1. Many past decisions that draw conservatives’ ire—notably Lawrence v. Kansas, (2003), Obergefell v. Hodges (2015), and perhaps Griswold v. Connecticut (1965)—were already vulnerable to revision before now; but the current conservatives on the Court have made their active displeasure with them clear.
  2. Report of the United States Commission on Civil Rights (1961), Book V, p. 42.
  3. Naomi Murakawa, “The Origins of the Carceral Crisis: Racial Order as ‘Law and Order’ in Postwar American Politics,” in Race and American Political Development, ed. Joseph Lowndes, Julie Novkov, and Dorian T. Warren (New York: Routledge, 2008), 251.
  4. Robert Barnes, “Does Chief Justice Roberts Fear Gobbledygook? Or Is That Just Baloney?” Washington Post, October 23, 2017, A17.
  5. A notable exception is Stephen Breyer, who has persistently affirmed the fetishization of law’s apparent social autonomy. See Stephen Breyer, The Authority of the Court and the Peril of Politics (Cambridge, Massachusetts: Harvard University Press, 2021).
  6. Keith E. Whittington, Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in USU.S. History (Princeton, New Jersey: Princeton University Press, 2007).
  7. Simon Clarke, Keynesianism, Monetarism and the Crisis of the State (Cheltenham: Edward Elgar, 1988), 129.
  8. W. E. B. Du Bois, Black Reconstruction: An Essay Toward a History of the Part Which Black Folk Played in the Attempt to Reconstruct Democracy in America, 1860 (New York: Harcourt, Brace, 1935); Allison Powers, “Tragedy Made Flesh: Constitutional Lawlessness in Du Bois’s Black Reconstruction,” Comparative Studies of South Asia, Africa and the Middle East 34, no. 1 (2014): 106–25.
  9. Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (New York: Farrar, Straus and Giroux, 2009).
  10. Robert Post and Reva Siegel, “Roe Rage: Democratic Constitutionalism and Backlash,” Harvard Civil Rights-Civil Liberties Law Review 42, no. 2 (2007): 373–434; see also Amanda Hollis-Brusky, Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution (New York: Oxford University Press, 2015).
  11. Nate Holdren, Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era (New York: Cambridge University Press, 2020), 108, n. 69. See also Christopher L. Tomlins, The State and the Unions: Labor Relations, Law, and the Organized Labor Movement in America, 1880 (New York: Cambridge University Press, 1985); Charles W. Romney, Rights Delayed: The American State and the Defeat of Progressive Unions, 1935-1950 (New York: Oxford University Press, 2016); Matthew Dimick, “Counterfeit Liberty,” Catalyst 3, no. 1 (2019): 47–88.
  12. Rob Hunter, “Waiting for SCOTUS,” Jacobin, no. 14 (2014): 35–40.
  13. Karl Marx, Grundrisse: Foundations of the Critique of Political Economy, trans. Martin Nicolaus (London: Penguin Books, 1973), 108. In Werner Bonefeld’s formulation, “the state is best conceptualized as the political form of capitalist society.” Werner Bonefeld, Critical Theory and the Critique of Political Economy: On Subversion and Negative Reason (New York: Bloomsbury, 2014), 166.
  14. C. L. R. James, The Black Jacobins: Toussaint L’Ouverture and the San Domingo Revolution, 2nd edition (New York: Vintage, 1989).
  15. Du Bois, Black Reconstruction, 267 and passim.

Contributor

Rob Hunter

Rob Hunter is a writer living in Washington, D.C. He is a member of the Legal Form editorial collective.

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MAY 2022

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