The leaked draft of a Supreme Court opinion overruling Roe v. Wade was a shock, but the content of the draft should not have been a surprise. Overruling Roe has been a stated goal of the Republican party, repeated in its presidential platforms in every election since the decision was handed down in 1973. With a 6-3 Republican majority in firm control of the Court, the end of Roe should have been expected.
Yet people were surprised. Part of the reaction comes from the fact that Roe had survived other Republican majorities. Planned Parenthood v. Casey, which reaffirmed the central holding of Roe in 1992, was decided by a Court with eight Republican appointees. The Roe Court itself had a 5-4 Republican majority.
Things are different now than they were fifty or thirty years ago. Justices vote in line with the preferences of their appointing President more consistently than they used to. But the overruling of Roe also conflicts with a general sense in that the Supreme Court usually expands people’s rights; it doesn’t take them away. This understanding falls neatly into the story of progress that we like to tell ourselves: American history moves forward; it doesn’t go back.
That’s a comforting story, but it isn’t true. American history does go back, and the Supreme Court does take rights away. The most striking example of this occurred after the greatest expansion of constitutional rights, the Reconstruction Amendments.
After the Civil War, the Reconstruction Congress transformed American society with three amendments designed to make a new nation. The Thirteenth Amendment banned slavery. The Fourteenth Amendment established birthright citizenship, including the formerly enslaved as full members of the American nation. It gave those new citizens, and everyone else, rights of liberty and equality to protect them from oppression by the States. (The Bill of Rights, like most of the 1787 Constitution, protected people only from the federal government.) The Fifteenth Amendment prohibited racial discrimination with respect to the right to vote. All the amendments gave Congress power to pass laws for their enforcement. Together, they sought for the first time to make America a multiracial democracy.
It worked—for a while. Reconstructed southern governments operated integrated schools and police forces. They reformed divorce laws and provided social services on a scale never before seen in the South.
But not everyone was willing to accept the new society. Some whites resented seeing government services supporting Blacks, which marked them as insiders. They resented sharing those services with Blacks, which marked them as equals. And they resisted violently.
It took the U.S. Army to keep them in line, and eventually the will to maintain what was in essence a military occupation of the South faded. As a way of settling the disputed election of 1876, the federal troops ended their supervision. What followed was called Redemption. Whites took back control, often through violent coups led by white supremacist paramilitary organizations. And very quickly, the rights promised by the Reconstruction Amendments went away.
The Supreme Court did not help. It read the Fourteenth Amendment narrowly—in the words of a dissenting Justice, it turned “what was meant for bread into a stone.” It struck down a federal law prohibiting racial discrimination by restaurants and inns, commenting that at some point blacks must “cease to be the special favorite of the laws.” (This in 1883, when slavery was only eighteen years in the past.) Faced with massive and systemic violations of the Fifteenth Amendment, the Court threw up its hands. “[R]elief from a great political wrong,” it said, had to come from “the legislative and political department of the government of the United States.”
Eventually that relief did come. Almost a hundred years later, the Civil Rights movement fought to fulfil the promises of Reconstruction. Congress enacted more anti-discrimination laws and, crucially, the Voting Rights Act of 1965. For a brief period—the time historians now call the Second Reconstruction—the Court worked with Congress to make a more just and equal society.
But starting around 1980, with the election of Ronald Reagan, things took a new turn. The 1980 Republican platform lamented that “government power has grown unchecked” under Democratic administrations and promised freedom from its “pervasive and heavy-handed intrusion.” “Republicans,” it continued, “pledge to continue and redouble our efforts to return power to the state and local governments.” Reagan’s four Supreme Court appointments fulfilled the pledge, making the Court more suspicious of federal authority and more receptive to claims of states’ rights.
In constitutional law, a preference for state authority is called federalism, and constitutional scholars typically called this era the New Federalism. But people seldom favor state authority in the abstract, without some idea of what that power will be used for. In recent years, the issues on which the Supreme Court favors the states have become clearer. Congress can still enact broad laws to regulate the economy: the Supreme Court upheld the Affordable Care Act. But it cannot protect the right to vote against racial discrimination—in a series of decisions, the Supreme Court eviscerated the Voting Rights Act. It cannot use its powers under the Fourteenth Amendment to protect individuals against discrimination by states—in a different series of decisions, the Court struck down federal anti-discrimination laws and the Violence Against Women Act.
The selective and carefully targeted nature of the judicial pushback against Congress shows that what is happening now is not really about states’ rights any more than the Civil War was. It is about rolling back the gains that equality movements made in the century and a half since the end of the first Reconstruction. (If you doubt this, watch how quickly abortion opponents drop the appeal to states’ rights in favor of a national ban.)
The decisions and even the phrases of the current Court echo those of an earlier era. Striking down an attempt to integrate schools, John Roberts pronounced that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Endorsing a challenge to the Voting Rights Act, Antonin Scalia criticized the law as a “racial entitlement.” Blacks must cease to be the special favorites of the law. Attempts to promote equality are an affront to the natural order of things. That is what the attack on affirmative action is about, and it is what a decision overturning Roe would be about, too. The time they want to return to is not 1787 but 1876.
I’ve taught constitutional law for twenty years now, and for twenty years the last section of my syllabus has been called “The New Federalism.” For the past ten, I’ve put a question mark at the end of that phrase because I haven’t been sure what’s really going on. But now I am, and the question mark is going away. So is the fig leaf of states’ rights. The constitutional era we live in now is getting the name it deserves: the Second Redemption.
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