For more than 30 years I taught the sociology of law to both undergraduate and graduate university students.  We considered how American law developed, how it was applied to persons and groups, and with what effects on them and on the broader society.

When discussing the U.S. Supreme Court, I emphasized that the traditional law school approach to its decision-making was wrong.  There, students have been commonly trained that legal reasoning is a learned skill much like that in scientific work.  It is based on principles of deduction, according to which judges make decisions about laws by logically figuring out how the principles established in earlier court decisions–precedents–apply to the current dispute before them.  In this perspective, judicial decision-making–especially in the higher courts with the best trained lawyers–is a matter of technique.  It produces the correct legal answers based on facts and reason, free of bias and personal belief.  Competent practitioners, therefore, should reach the same, right, answers.

Although the American legal establishment placed a lot of faith in this account, and asked the nation to do the same,  it was never a true story.

Of course, if it were, how could the Supreme Court issue so many decisions with 5-4 votes?  More dramatically now, how could it be that today’s Supreme Court appears to be little more than a radical Right redoubt, one on the verge of retracting a basic right finally granted to women by the Court almost 50 years ago?

The landmark 1973 Supreme Court decision finding a Constitutional right to abortion, Roe v. Wade, was not the work of a liberal Court.  The nine members of that Court comprised three justices who had been nominated by Democratic presidents and six who had been nominated by Republican presidents.  Nor was the decision a close call.  The vote was 7-2, with five of the Republican-nominated justices voting to establish the right to abortion.

That was then.  It was an era of much greater comity in politics.  Republican presidents and Democratic presidents alike appointed moderates to the Supreme Court.  In most cases, the Court appeared to have deliberated thoughtfully and judiciously, and its decisions were rarely attacked as acts of ideological partisanship.  Importantly, the justices’ religious backgrounds played virtually no role in the Roe decision.  The only Catholic justice on the Court, William Brennan (appointed by Republican President Dwight Eisenhower), voted with the majority to establish abortion rights.

Half a century later, that moderate legal landscape has been totally eroded, and with it any semblance of a judicious Supreme Court.  It has been a victim of an increasingly radical political partisanship in the nation, fueled since the 1960s by growing racist demagoguery and by the increasing politicization especially of fundamentalist religions.  Both developments are based on identity politics on the Right, whose partisans long to return the nation to their version of its–and their own–identity:  that of a white, Christian country.  The Republican Party latched hard onto both developments, growing them further.

This fuel of intolerance eventually delivered its own spark.  That came with the 2016 election to the presidency of a racist demagogue who shamelessly appealed to the Right’s most exclusionary urges.  This included the promise to the Religious Right to appoint to the bench only justices who would vote to overturn Roe, should he get the chance to make any appointments.  And with the help of then Senate President, Mitch McConnell (R-KY), who bashed  longstanding Senate norms to steal two Supreme Court nominations from Democratic presidents–one each from Barack Obama and Joe Biden–Trump appointed three such justices who appear about to vote to overturn or substantially weaken abortion rights.  Religion is poised to take over the Supreme Court.

**********

Specifically, the conservative and staunchly anti-abortion rights religion in which I was raised: the Catholic faith.  All three Trump appointees–Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett–were raised as Catholics.  (Gorsuch now attends Episcopal Church services.)  They joined a Court that now comprises seven justices of Catholic identity and/or background (including Chief Justice John Roberts, Jr., Justice Clarence Thomas, Justice Samuel Alito, Jr., and Justice Sonia Sotomayor)  and two justices who are Jewish (Justice Stephen Breyer and Justice Elena Kagan).  In the fall of 2022 U.S. Appellate Court Judge Ketanji Brown Jackson, a Protestant, will replace retiring Justice Breyer.  It is little surprise that six of the seven Catholic justices have been appointed by Republican presidents.

Now, a justice’s faith background does not always drive his or her decisions in cases in which religion figures, as Brennan’s vote in Roe shows.  Justice Sotomayor has defended abortion rights, while Chief Justice Roberts appears to want to defend at least a reduced right to choose abortion.

But five justices–Alito, Coney Barrett, Gorsuch, Kavanaugh and Thomas–appear to be ready to jettison Roe.   Their support for overturning abortion rights appears in a draft Supreme Court opinion leaked to the media in May in a Mississippi case expected to be decided by the end of this month.  In it, Justice Alito, the draft opinion’s author, wrote that “The Constitution makes no reference to abortion,” that Roe was “egregiously wrong,” and that it “must be overruled.”  

**********

If not a complete elimination of Roe, the Court’s final decision is sure to deliver a substantial reduction in women’s rights to abortion.  Either way, many costs will be exacted, not only on women’s right to choose, but on the nation.

It will leave at least much of the question of abortion’s legality to the 50 state legislatures, many of which have already moved to make it illegal and, in places, criminal on the part of both patients and their doctors.  The resulting patchwork of laws around the country will only exacerbate troubling inequalities in the nation–this time in the rights to “life, liberty and the pursuit of happiness”–as only well-to-do women will be able to afford to travel for care to states where the procedure remains legal.

Some of the new state laws have truly draconian reach.  Last month, in anticipation of the Supreme Court’s overturning a woman’s right to an abortion, Oklahoma Republican Gov. Kevin Stitt signed a law that criminalizes abortion from fertilization onward and, like a new Texas law, encourage citizens to help enforce the abortion ban by allowing them to sue doctors who conduct illegal abortions.

While the Oklahoma law expressly does not outlaw existing forms of contraception, in the current political climate its assertion that life begins at fertilization puts into question the future of the right to use birth control, first established by the 1965 Supreme Court decision in Griswold v. Connecticut.  The progressive diminution of women’s rights to bodily autonomy threatens to produce in the U.S. the dystopian gender future so ruthlessly imagined in Margaret Atwood’s 1985 novel, The Handmaid’s Tale.  

And there is more.  Should the Supreme Court overturn Roe, it also stands to threaten the individual rights to interracial marriage, same-sex marriage, and homosexual intimacy that have been established in earlier Court decisions, as these decisions were based upon much of the same legal reasoning as Roe.  The ‘land of the free’ has never before seen such a broad assault on personal autonomy and liberty.

**********

Adding to the burdens that would be imposed by the Court’s rejection of Roe are a number of serious moral costs that history teaches us to expect.  History’s lesson is that the legal prohibition of private behaviors not only largely fails–it also produces serious harms.  In the U.S., think Prohibition and the crime and corruption it generated.  Think punitive drug laws and the resulting gang crime, incarceration and addiction rates that devastated many poor communities of color.  Drinking was common during Prohibition, and so has drug use been since the beginning of the American ‘War on Drugs’ in the 1970s.  Both drinking and drug use were commonplace across social classes, but the punishments fell heavily disproportionately on poor consumers of each, undermining the rule of law.

As I suggested earlier, overturning Roe would also undermine our democratic rule of law.  It would render many of the abortions of poorer women criminal, while leaving largely untouched the abortions of wealthier women, mocking our foundational Constitutional notion of ‘equal justice under law.’  Meanwhile, eliminating the national right to abortion is unlikely to substantially affect abortion rates, even in states that criminalize the procedure.  Before abortions were legal, pre-Roe, scholars estimate that 20 to 25 percent of all pregnancies in the U.S. ended in abortion.  Currently in the nation, under the Roe decision, abortion rates have been in decline for at least the last few decades.  Of known pregnancies in the U.S., 30 percent ended in abortions in 1985, 22 percent in 2007, and 14 percent in 2018.  Clearly the legal status of abortion is not among the key social factors affecting abortion rates, among which are women’s employment rates, incomes, access to health care, pregnancy leave from work, and social supports for young, single mothers.

Instead, especially among the poorer populations, overturning Roe would result in some combination of more dangerous illegal abortions, increasing deaths of females from unsafe pregnancies, and children born to mothers ill-able economically and emotionally to raise them–creating another generation of vulnerable persons ill-cared-for particularly in those states likely to criminalize abortions.   These are the people who populate our crime and addiction registries and who fill our jails and prisons as adults.

**********

Finally, overturning a long-standing legal precedent that abortion providers and their patients have relied on for generations will further erode the legitimacy of the Supreme Court.  This is no small cost to the nation.  It is a fundamental loss to our democratic system of governance.  The Court was established by the Founders to be the neutral body that would resolve the country’s most pressing questions of Constitutional law–those relating to the democratically fundamental rights of individuals, groups, and governments.  It was designed to resolve disputes over rights while free of the political, religious and economic self-interests and biases of conflicting groups.  Without such a neutral arbiter at the apex of law, our governance will devolve into the naked struggle for political power, one leaving justice and democracy only for history.

We are, unfortunately, well along the road to delegitimizing the Supreme Court, something that appears to have especially haunted John Roberts, the Court’s Chief Justice.  Not only have critics noted a series of 5-4 decisions by the Court’s conservative majority that favor powerful interests over those of the less powerful.  The Court’s conservative majority has also made a number of recent decisions that have undermined democracy in the U.S.  These include Bush v. Gore (2000, 5-4 vote), which halted the counting of contested ballots in Florida, thereby handing the presidential election to George W. Bush (a decision from which even the majority distanced itself, writing that it should not be considered a precedent for any other cases); Citizens United v. FEC (2010, 5-4), which granted corporations and other wealthy groups the right to spend unlimited funds in national political campaigns, dwarfing the financial contributions of individual citizens; and Shelby County v. Holder (2013, 5-4), eliminating the requirement in the Voting Rights Act of 1965 that states with past patterns of voting discrimination against minorities get preclearance (approval) from federal legal authorities in Washington for any changes these states propose to their voting laws.  Since this ruling many Republican-controlled states have passed new laws restricting access to voting for minority populations.

And perhaps nothing in the new millennium has so singularly threatened the Court’s legitimacy as has the Republican-controlled Senate’s theft of two nominations to the Court from Democratic administrations, as I described earlier.  These moves nakedly interjected politics–and almost as clearly, religion–into the nature and operations of the Supreme Court in unprecedented fashion.  Not surprisingly, Gallup polling in the U.S. showed that public approval of the Court’s behavior declined from 58 percent in 2018 to a record low (since the year 2000) of 40 percent in September 2021.

And just as unsurprising, this recent period also covers the rushed appointment of former President Trump’s third selection to the Court, that of Amy Coney Barrett, which appears to have ensured the substantial erosion or elimination of abortion rights in the nation, rights supported at present by 61 percent of the American public.