The Overturning of Roe

And America’s Rogue Supreme Court

Jane’s Seething Fury

It’s been a difficult week and a half (month? year? years?) for most of us who live in the USA. 10 days ago, the Supreme Court overturned its landmark 1973 decision, Roe v. Wade, which affirmed the constitutional right to abortion for all Americans. Even for those of us who knew this was an inevitable outcome of the Trump presidency and the unrelenting Republican effort to roll back human rights for the past 49 years, it has nevertheless been an exceedingly bitter pill to swallow.

I’ve been thinking a lot about what it means to be a person who now has less guaranteed rights and bodily autonomy than I had just a week and a half ago, and about how we got here as a country. The longstanding tradition of historical revisionism in the United States has managed to not only hide a lot of important context around abortion in general, but it has also contributed to convincing people that Roe V. Wade was some kind of isolated niche issue rather than a bellwether for freedom in this country as a whole.

Well, if anyone was still confused about where the Supreme Court stands on civil rights in 2022, here are some of the other decisions they made last week (on top of the 6-3 ruling on Dobbs V. Jackson Women’s Health Organization mentioned above):

• Struck down a longstanding NY law requiring a special need to carry a weapon, claiming that Americans have the right to carry handguns outside the home.

• Rolled back the Environmental Protection Agency’s ability to reduce the carbon output of existing power plants; kneecapping the EPA and Biden’s plan to combat climate change.

• Blocked the Biden administration’s vaccine -or- testing requirement for the USA’s largest employers, leaving covid response up to individual states

• Invalidated a tuition program in Maine, ruling that religious schools cannot be barred from receiving public grants extended to other private schools.

• In another blow to the separation of church and state, the SC sided with a former high school football coach who was leading prayer circles on the 50-yard line, claiming that his actions did not violate the prohibition on government endorsement of religion.

• Ruled that state officials have the power to prosecute non-Indians for crimes against Native Americans within a tribal reservation—a decision heavily criticized by tribal leaders due to it limiting the reach of a 2020 ruling that reclassified roughly 40% of Oklahoma, including the city of Tulsa, as ‘Indian land’.

These decisions all point to one undeniable fact: the Supreme Court is now officially acting as an arm of the GOP by rapidly pushing through policies that are unpopular with the majority of Americans. And for those of us who grew up in a post-Warren Court USA, these new developments have been jarring, even panic-inducing; but the truth is, the SC is actually just returning to the status-quo it upheld for the majority of American history.

I think, in order to understand the mindset of the Supreme Court though, we really need to go back to the very beginning of American Republic. There has always been a fundamental tension at the heart of our government; a disagreement on its purpose, and what expectations average citizens should be allowed to have of it.

For most logical thinkers, the obvious purpose of government (and on a larger scale, society in general) is to better coordinate efforts to accomplish widely beneficial tasks that would be insurmountable for individuals. For example, common sense projects like building roads and bridges, creating affordable public transit, providing clean drinking water, making sure fires and other emergencies can be taken care of quickly, offering good public education programs, etc.

But this kind of thinking has actually not been very “American” for that long. For most of our country’s 233-year history, people in power have largely fought to preserve the rights of the wealthiest and most privileged, at the expense of the poorest and most marginalized in society. The American Mythos is that we are a country built on freedom and equal rights for all, but in reality, our system of Democracy-Lite™ was designed to prevent direct democracy as much as possible and to make sure that wealthy men would be able to secure positions at the top of a hierarchical system that in many ways, mirrored the monarchies in Europe that our founders claimed to want to be free of. In actuality, all 3 of our founding documents betray their inherent desire not to destroy hierarchy, but rather to create new ones, not based in familial ties or hereditary entitlements, but rather on personally amassed wealth and power.

This is how it was possible for these men to deny human rights to enslaved people, Native Americans, women, and disabled people for the majority of our country’s existence. And it’s this desire for a rigid hierarchical system that motivates the GOP (and if we’re being honest, a not-insignificant chunk of the Democratic party, as well) to take advantage of every possible loophole in our constitution to revert the Supreme Court into a version of itself that harkens back to the 1850’s, or the 1930s.

There have been a few rare moments in our history in which a progressive-minded President challenged the will of the Supreme Court, and both times it has created a furious backlash that rolled back human rights and caused us to take many steps back as a country. The first time this happened was when Abraham Lincoln ignored the SC’s Dred Scott decision in order to pass the 13th amendment at the end of the Civil War. After the (short) period of Reconstruction in which formerly enslaved Black people began to actually be able to enter into government, obtain small levels of political power, and amass some amount of generational wealth, the KKK rose out of the south and began terrorizing them.

The backlash to the federal ban of slavery in the United States was so harsh, in fact, that it resulted in the creation of Jim Crow laws, allowing for nearly 100 years of white terrorism against Black citizens and the actual revocation of their constitutional civil rights. Most of these rights were not officially regained until after 1968, and there’s a strong argument to be made as to why even today, they have yet to be fully restored.

The 2nd most notable moment a President pushes the country forward against the will of the Supreme Court is when FDR introduces his New Deal policies in 1933. He also has to deal with a SC that keeps blocking him from making any kind of real progress, despite his policies being incredibly popular with everyday Americans—and finally, after having bill after bill shot down, in an effort to secure Social Security and Labor Union Protections, he threatens to expand the court. As this idea begins to gain steam in the court of public opinion, the SC finally backs off and Roosevelt wins his game of Chicken. He never actually does expand the court though, as his presidency ends up outlasting enough of the Justices to allow him to eventually appoint 8 out of 9.

This is when the Supreme Court actually begins to shift into a more progressive-minded entity, one that actually sides with popular demand and makes an effort to expand rights for the majority of Americans rather than to revoke them—and this culture is more or less maintained on the SC all the way through Obama’s presidency until Mitch McConnell blocks his 2014 appointee, Merrick Garland, from ever even being interviewed by Congress, much less taking a seat on the Court.

The backlash to FDR’s New Deal and later, LBJ’s Great Society policies have been a much slower burn than the backlash to the Emancipation Proclamation. It has taken conservatives in this country well over half a century to fully execute their design, but the 2016 presidential election sealed the deal, and now, in 2022, we’re finally seeing the culmination of their decades-long efforts. They’ve been slowly and methodically chipping away at the concept of a functioning government for the people, but now the floodgates are fully open—so it’s important to understand what the end goal of the GOP is, because without extremely deliberate and coordinated resistance, I have no doubt they’ll achieve everything they wished for and more.

What you need to understand about the American Conservative movement is that their goal has always singularly been to prevent the maximum amount of equality possible—and I know that it’s human nature to want to assume positive intent and to expect logical choices that benefit the most people, but you need to set all that aside because for American Conservatives, the concept of “equality” has always been a zero-sum game that is ultimately existential for them. Understand that their end game is to 1. create a defined hierarchy according to theocratic, paternalistic standards, 2. maintain minority rule by controlling education and indoctrinating from an early age, and 3. rid any and all opposition to this over time by limiting or revoking political, civil, and economic rights.

In order for us to fight for true equality of opportunity in this country, we need to first recognize that inequality has always been built in to the very foundation of our nation, and that stubbornly holding on to things like “tradition” or “constitutional norms” only creates an artificial cap on how much progress we can make. We’re now effectively dealing with a rogue Supreme Court, a hostile Senate, a very slim House majority, and a weak President that are all working together (voluntarily or not) to prevent the people’s will from being executed. We need to recognize that all 3 branches of government are dysfunctional and are not upholding their end of the social contract; and that when human rights are getting rolled back or outright revoked, it becomes the duty of all citizens to resist, to protest, and to take radical measures to prevent further backsliding.

The 5-decade endeavor to revoke Roe is a good case study in how much dedication and coordinated effort was required to actually move the needle—but the reframing of “abortion rights” in this country that happened well before the official Roe ruling is perhaps worth learning about even more than what happened in more recent times, as it truly does illustrate how much damage a single historical revisionism campaign led by just a handful of men can do. I highly recommend giving these 2 episodes of Throughline a listen if you aren’t familiar already: