Over the course of two days this week, the Supreme Court of the United States redefined American society, and people’s power to shape it, by looking at what the Constitution says or doesn’t say about two freedoms: that of women to decide the course of their own lives, and that of those who wish take up arms in self-defense. They did it because they could. These freedoms, like others enshrined in law, have long carried certain limits and responsibilities. Yet for the high court’s ultraconservative majority, only one must yield to majority rule — the will of voters and elected representatives in the various states — and the other must be guarded zealously from this tyranny.
In overruling Roe v. Wade, and with it nearly 50 years of American law, and expanding the reach of the Second Amendment right to keep and bear arms, which is a jurisprudential innovation of more recent vintage, the Supreme Court wants the public to accept that history rules the present — and that our founding charter, which is hailed as a beacon of liberty pointing to a more perfect union, reflects rules set in stone that no judge should dare disturb. “Today, unfortunately, many Americans have good reason to fear that they will be victimized if they are unable to protect themselves,” wrote Justice Samuel Alito, concurring in New York State Rifle & Pistol Association v. Bruen, which expanded the right to own a firearm for self-defense purposes beyond the home. “And today, no less than in 1791, the Second Amendment guarantees their right to do so.”
Bruen was not authored by Alito, but by Justice Clarence Thomas, who used the ruling as a victory lap after many years of loud protestations about the Supreme Court’s refusal to clarify the scope of the Second Amendment. Thanks to this refusal, lower courts far and wide have upheld an array of assault weapon bans and other legislative enactments in response to the scourge of gun violence. But to Thomas, a self-proclaimed originalist, these electoral choices, and judges’ acceptance of them, were a bridge too far. “The Second Amendment ‘is the very product of an interest balancing by the people’ and it ‘surely elevates above all other interests the right of law-abiding, responsible citizens to use arms’ for self-defense,” he wrote. “It is this balance — struck by the traditions of the American people — that demands our unqualified deference.” In other words, the democratic process must be very wary before responding to atrocities like those we saw in Buffalo or Uvalde, Texas, lest we offend the founding generation.
Yet if the Founding gave Americans this inalienable right to arm themselves against enemies foreign and domestic, Alito reminded us a day later, it did not do so for the right to end a pregnancy, which enlightened men — both at the dawn of the republic and in 1868, when a Civil War gave way to the 14th Amendment’s guarantees of equality, liberty, and due process for all — never explicitly wrote into the constitutional text. These men’s choice to leave out the word abortion, in Alito’s hypertextualist reading, means conclusively that no such right to it has ever existed, and who is he to contradict the men who wouldn’t guarantee women the right to vote for at least another half a century? “The Constitution makes no express reference to a right to obtain an abortion, and therefore those who claim that it protects such a right must show that the right is somehow implicit in the constitutional text,” Alito wrote in Dobbs v. Jackson Women’s Health Organization, hewing closely to his leaked draft that made waves last month.
That latter part of Alito’s formulation allows for the protection of certain “implicit,” unenumerated rights. And the Supreme Court has long recognized liberties like choosing whom to marry or whether to use contraception that, even if not written in the Constitution, are so rooted in our history and traditions that the government must meet an impossibly high standard to interfere with them. In Dobbs, Alito reminds us again and again that those atextual freedoms are safe and sound from future attacks — except for the freedom to terminate an unwanted pregnancy. To Alito and Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, that deeply personal choice, which can make or break a person’s future, is simply different, and bannable, because the decision involves an “unborn human being” — and so the morality of making a life choice that affects a “potential life” is conceptually distinct from the right to sexual intimacy or to make decisions about our children’s upbringing.
But is it? And why should people accept at face value that the democratic process will work itself out in many of the Republican-led states that today are celebrating Roe’s demise, at the same time that those states continue to refuse to expand Medicaid, have some of the worst maternal mortality rates, show abysmal child and women’s health outcomes, and are clamping down on the right to vote? The antiabortion majority on the Supreme Court ignores these realities and exhorts the women they’ve just disempowered to seek empowerment at the ballot box. “Our decision returns the issue of abortion to those legislative bodies, and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office,” Alito writes. “Women are not without electoral or political power.” (Mississippi, the state that brought the Dobbs case, is a hellscape for people considering pregnancy or surviving one.)
Here’s where the liberal dissenters in Dobbs, who also dissented in Bruen, ably denounce the hypocrisy of these two rulings — one expanding and the other erasing constitutional guarantees that for decades were, more or less, fairly responsive to the drumbeat of politics and legal rules. If history is the yardstick by which to measure the constitutionality of abortion or gun laws, then the Supreme Court has shown to be very adept at cherrypicking which history guides its reasoning. Do we look to when the guarantee of liberty of the 14th Amendment was ratified? Do we look to the Founding itself? Or do we go even further back, say, the 13th century? As the dissenters note in Dobbs, Alito and company are all over the map in their survey of history, but neither the Founding nor 1868 really help their case because at neither point were women considered full and equal citizens.
“Those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognize women’s rights,” Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor write in their joint opinion. “When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship.”
And therein lies the farce, the fatal flaw, of interpreting our Constitution as frozen in amber, its text the product of wisdom and compromises of a distant past. The Supreme Court attempts to reassure a nation on the brink that unenumerated rights other than abortion are safe. But the reality of obeying the dictates of the framers, or determining whether rights are rooted in our nation’s history, means going back to the brutality of those periods. It took nearly 100 years until Ruth Bader Ginsburg could begin to transform women’s standing in the law, and then only step by step. In light of the majority’s toppling of such a fundamental pillar of women’s concept of self, all rights that have no historical grounding are insecure, even if they have been protected over time. All of us are at risk. Selectively ripping Roe out of an edifice built over decades, as the Supreme Court did in Dobbs, suggests the whole structure rests on shaky ground.
As the dissenters put it in a parenthetical: “Think of someone telling you that the Jenga tower simply will not collapse.” Proving their point, Thomas, who merely a day earlier vindicated gun rights from “second-class” status, indicated that he’s ready to do away with the line of cases on which Roe rested — and those that came after and lifted many Americans from second-class citizenship. (Strangely absent from this hit list: Loving v. Virginia, the landmark that made Thomas’ own interracial marriage legally possible.) This jurisprudence, which governs some of our most intimate decisions, “has harmed our country in many ways,” Thomas forewarns. The post-Roe counterrevolution, and the battle for who counts as a full person in the eyes of five justices fixated on a period when few were, is only beginning.