With Dobbs, We’re All in Bork’s America Now

Posted in: Constitutional Law

Late last week, the Supreme Court’s extremist majority achieved twin right-wing goals—ending abortion rights while expanding gun rights—and pointed the way toward the fulfillment of its end-game: What the late Senator Teddy Kennedy described in a 1987 speech as “Robert Bork’s America.” It is a country whose constitution does not evolve or change to meet new circumstances and affords no protection of citizens’ privacy from government intrusion—a good operating definition of a totalitarian state.

Judge Bork was nominated to serve on the Supreme Court by President Ronald Reagan. Bork was there at the founding of “originalism.” He was critical of Roe v. Wade and of cases like Griswold v Connecticut, which recognized the right of married couples to use contraception, because the word privacy was not used in the Constitution. Bork did not believe it was the job of judges to protect unenumerated rights or to recognize new meanings of liberty.

Senator Kennedy helped prolong Roe’s survival and stop Bork’s appointment by unleashing this classic of Senate chamber take-downs: “Robert Bork’s America is a land in which women would be forced into back-alley abortions, . . . schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.”

This sure sounds like the universe in which the current Supreme Court would have Americans live.

Last Friday’s devastating anti-choice holding in Dobbs v. Jackson Women’s Health Organization drowned out a sub-message foreshadowing potential catastrophe for individual liberty. In sweeping Roe and Planned Parenthood v Casey out the door, Justice Samuel Alito expressly channeled his inner Bork by ripping the protection of women’s reproductive freedom from its mooring in the constitutional right to privacy and by claiming that unenumerated rights can only be recognized if they are rooted in “history and tradition.”

In Roe, Justice Harry Blackmun wrote that the Fourteenth Amendment’s due process concept of liberty “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Due process, the Court said, incorporates other amendments creating “zones of privacy.” Among them were the Fourth Amendment’s “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” the Fifth Amendment’s privilege against self-incrimination, and the Ninth Amendment’s recognition that the Constitution’s “enumeration . . . of certain rights” did not exclude other rights “retained by the people.”

In Casey, Justices Sandra Day O’Connor, David Souter, and Anthony Kennedy framed privacy as an aspect of autonomy and the right of self-definition, “of meaning, of the universe, and of the mystery of human life.”

Last Friday, Justice Alito’s majority opinion in Dobbs mocked that statement, writing, “While individuals are certainly free to think and to say what they wish about ‘meaning,’ the ‘universe,’ and ‘the mystery of life,’ . . . [l]icense to act on the basis of such belief . . . is certainly not ‘ordered liberty.’”

Justice Clarence Thomas’ concurrence tag-teamed Alito’s mockery, calling the Casey plurality opinion’s formulations “ethereal,” and attacking Roe’s reliance on privacy: “That 50 years have passed since Roe and abortion advocates still cannot coherently articulate the right (or rights) at stake proves the obvious: The right to abortion is ultimately a policy goal in desperate search of a constitutional justification.”

Thomas’s rhetoric has all the look and feel of projection—Dobbs expresses his own policy preference in search of a route to fulfill Bork’s project.

Importantly, as Jed Rubenfeld persuasively argued in the Harvard Law Review two years before Casey, protection for democracy and diversity is the theme that best explains and harmonizes the Court’s cases on the constitutional right of privacy. Privacy protects us against what Rubenfeld called “an unarmed occupation of individuals’ lives.” Being forced to bear a child occupies and preoccupies one’s life for decades.

Second, privacy protects us from a society that is “standardized,” one in which “lives are too substantially or too rigidly directed. That is the threat posed by state power in our century.” The Court’s Dobbs majority is laying a foundation for such a standardized life.

We can see that in Justice Thomas’s attack on privacy. He follows Bork in expressly calling for Griswold v. Connecticuts reversal. The Griswold opinion cited Meyer v. Nebraska in 1923 and Pierce v. Society of Sisters in 1925 as laying the foundation for a reading of the Constitution that protects citizens from intrusion into their personal belief systems and from a legislature’s attempt to “foster a homogenous people” by telling families that their children may only be instructed in the English language and may only receive public school education.

Today’s Court seeks to foster a homogeneous nation governed by the values of the 18th or 19th centuries. Note especially that Thomas’s concurrence calls not only for the end of contraception protection, but also for overturning Obergefell v. Hodges, the gay marriage case, and Lawrence v. Texas, the case that ended states’ criminalization of sodomy. Clarence Thomas’s America includes the restoration of a state law regime that outlaws another choice—who Americans can love.

So make no mistake: Underlying the end of the right of privacy is a revanchist vision of an authoritarian state embracing and enforcing MAGA values across an entire diverse population. That the Court delivered such an opinion in the shadow of January 6 and amidst the January 6 committee’s cascading evidence of former President Trump’s attempt to establish one-man rule is a chilling reminder of the difficulties we are in.

The day Dobbs came down, Ruth Ben-Ghiat, author of Strongmen: Mussolini to the Present, told a radio audience, “Women are always as much the targets of authoritarians as prosecutors and journalists and opposition politicians. They want control of those bodies.” The Court’s majority is aiding and abetting those seeking absolute power at the expense of women and a free people.

We’re not in 1987 anymore, for sure, but the work of resurrecting Robert Bork’s America is well underway. Bork was stopped when six Republican Senators joined 58 Democrats in heeding Senator Kennedy’s warning and voting not to elevate him to the Supreme Court.

Today, as President Biden said after Dobbs, abortion rights are on the ballot. So are gay rights and privacy rights. The question for our time is whether we will now mobilize and vote to resist the full flowering of the Court’s efforts to realize Bork’s America.

The rights and freedoms of all Americans depend on the answer to that question.

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