“[N]o one should be confident that this majority is done with its work.” – Justice Breyer, writing for the minority in Dobbs v. Jackson Women’s Health Organization
This week, I was supposed to close out Pride month by writing about the very real costs of marriage and divorce and the distinct challenges faced by same-sex couples in family planning, unwinding relationships, and navigating life and love’s various uncertainties.
I spoke to several experts in financial planning about challenges faced by the LGBTQ+ community including financial planning for couples with significant age discrepancies, about why married gay men often maintain separate finances, why Lesbian couples are more likely to poole their assets, and why lesbian marriages account for more than 3/4 of same sex divorces (note: it’s not because they pool their assets).
And while the financial needs of same-sex couples and the real cost of love for all of us deserves more than a cursory mention – and I promise, we will give these important topics the time and attention they deserve – this week some stuff went down in the Supreme Court and we need to talk about it.
WARNING: This week’s post is longer than usual as we are covering a multi-decade history behind the effort to roll back Constitutional protections. So, if you want to come along, strap in and enjoy.
Ok, so what happened?
Last week, the highest court in the land reversed 50 years of progress, rolled back a previously granted constitutional right for the first time ever, and the minority justices warned that this may just be the tip of the iceberg.
For more than 50 years, Roe v. Wade, the constitutional guaranteed right to seek an abortion has been the law of the land. For just as long, the hard right, pro-life movement has been organizing, fundraising, and voting to change that. In 2016, historically pro-choice President Donald Trump won over the Evangelical vote largely because he explicitly promised to appoint Justices to the Supreme Court who would overturn Roe v. Wade and outlaw abortion.
Last week, in the Dobbs opinion, the Supreme Court made good on Trump’s campaign promise to appoint Justices that would overturn Roe and abortion became immediately illegal in 26 states and put abortion access in jeopardy in several more. Justice Thomas’s concurring opinion in Dobbs goes further than just abortion and explicitly calls into question “substantive due process,” the legal foundation under which the right to privacy was expanded to protect access to contraception, same-sex marriage, and interracial marriage.
The result of overturning Roe and the potential for further reversals of other Constitutional guarantees not only threatens to erase the progress of the past 50 years, but also carries significant economic ramifications for our already fragile economy.
What does this mean for the economy?
In the words of President Biden, “[t]his is an extreme and dangerous path the court is now taking us on.” Rolling back constitutional guarantees granted using substantive due process is not only morally wrong, it also comes with significant, devastating economic consequences.
In fact, there is a strong economic case for abortion services (illlustrated). State-level abortion restrictions cost state economies an estimated $105 billion every year in lost wages related to reduced participation in the labor force and increasing turnover and time off from work among women ages 15 to 44 years. Banning abortion is also likely to increase mortality rates, particularly among BIPOC women, and further stress an already-fragile social safety net that cannot fully fund our foster care system.
If the women forced to carry a child to term manage to survive giving birth (the U.S. has the highest maternal mortality rates of any developed country), they must then somehow cover the cost of raising a child, an estimated $230,000 on average, according to the Department of Agriculture.
It should come as no surprise then that women who do not have access to abortion services and forced to carry a child to term are four times more likely to face extreme economic hardship five years later, according to the UCSF Turnaway Study. Women who were turned away from abortion also had lower credit scores, higher debt, and more negative, public financial records including bankruptcy and evictions.
In fact, the economic consequences are so significant that last year,154 economists wrote an amicus brief submitted to the Supreme Court arguing that there is “a substantial body of well-developed and credible research that shows that abortion legalization and access in the United States has had — and continues to have — a significant effect on birth rates as well as broad downstream social and economic effects, including on women’s educational attainment and job opportunities.” Even U.S. Tresury Secretary Yellen testified that eliminating abortion rights would have a “very damaging” effect on economy.
Regardless of your politics, the numbers are clear – restricting abortion access is bad business.
How did this happen?
The effort to overturn Roe has been in the works for decades. The right-wing conservative movement has long invested in grooming an ideological judicial bench and now, that investment is finally paying dividends with very real costs to the country’s moral leadership and economic well being.
Back in 2017, I was working for the U.S. Senate Judiciary Committee. We were preparing for Neal Gorsuch’s confirmation hearing. My job was to help explain who Judge Gorsuch was and how soon-to-be Justice Gorsuch was likely to rule on important cases that would come before the highest court in the land.
This meant combing through then-Judge Gorsuch’s opinions as a Federal judge and interviewing witnesses to understand what was at stake with Justice Gorsuch’s appointment.
There was a general sense among progressive leaders, particularly in the reproductive rights space, that Justice Gorsuch’s confirmation would put the right to privacy – particularly as it relates to bodily autonomy – in jeopardy.
Fast forward five years and two more conservative justices on the bench and here we are.
But, before we go further – a brief recap of U.S. Civics:
Who is SCOTUS?
SCOTUS is an acronym for the Supreme Court of The United States – one of three branches of the U.S. government.
After a hard-fought war to liberate the new world from the British Monarchy, the Founding Fathers were wary of centralizing power into the hands of one single person, or branch of government. Think of them as O.O.G. decentralization enthusiasts and “separation of powers” as the best alternative to centralized power.
Under this system of “checks and balances,” powers were distributed among the three branches: executive, legislative, and judicial. The Executive branch, led by the President and Commander-in-Chief, responsible for executing the law. The Legislative branch (a.k.a. Congress), is responsible for making the laws and also has the “power of the purse,” which gives them significant control over government budgets and expenditures. Finally, the Judicial branch, which used to be known as the “least dangerous branch,” was tasked with interpreting the laws passed by Congress and enforced by the Executive branch. Essentially, SCOTUS is the final arbiter of what is Constitutional.
What is the Doctrine of Stare Decisis?
Historically, Supreme Court Justices have been very smart, academic-types who understood that they couldn’t just go willy-nilly deciding cases based on a whim or a feeling. The doctrine of Stare Decisis (literally “to stand by things decided” in Latin) holds that once a court has ruled on an issue it becomes precedent – established law of the land – and other courts should align their decisions on similar issues and “follow precedent.”
Essentially, it means that once a court decides an issue, the matter is settled case law and cannot be re-litigated. When precedent is set by the Supreme Court, “the highest court in the land,” it is settled law and can only be reversed by the Supreme Court itself. While it is rare for the Supreme Court to reverse itself and refuse to follow the doctrine of Stare Decisis, there have been a few times throughout history where the Court reversed a previous decision and overturned established precedent. For example, in Brown v. Board of Education (1954), the Supreme Court overturned its own precedent set in Plessy v. Ferguson (1896), which upheld the constitutionality of “separate, but equal facilities” based on race. So, again, while these reversals do happen, they’re quite rare.
How was Dobbs different from SCOTUS’s other decisions last week?
Last week, the Supreme Court issued three controversial rulings expanding gun rights in the U.S., eroding the already fragile separation of church and state, and overturning abortion rights, but SCOTUS only reversed itself on one matter – abortion access.
This was already a big deal in itself, but Justice Clarence Thomas took it one step further. The Court’s most conservative Justice, wrote a concurring (agreeing) opinion to join the 6-3 majority vote. Despite the majority’s attempts to constrain the Dobbs ruling only to abortion, Thomas’ concurrence went even further explicitly declaring that, “[i]n future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” For those of you playing along at home, these are the cases that extend the right to privacy to cover access to contraception, sodomy, and same-sex marriage, respectively.
Okay, so what is Substantive Due Process?
Substantive Due Process is a legal reasoning approach that has been used by the Supreme Court (and lower courts) to evaluate the constitutionality of challenged laws and extend certain non-enumerated (not explicitly guaranteed) constitutional rights under the Due Process Clauses of the 5th and 14th Amendments. The Amendments explicitly “prohibit the federal and state governments,” respectively, from depriving any person of “life, liberty, or property, without due process of law.” The doctrine of Substantive Due Process extends protection of the right to privacy under the Due Process clauses to protect unenumerated (implied) rights that aren’t explicitly written in the text of the constitution, but are covered by the broad guarantee of the right to privacy, like the right to access abortion services, for example.
Justice Thomas is an originalist, constitutionalist which essentially means if the exact words aren’t literally written in the text, then the Constitution does not guarantee or protect those rights. While the “right to privacy” is literally written in both the 5th and 14th amendments, the Founding Fathers declined to enumerate those “rights” or explain what was or was not covered under the Constitution’s broad guarantee of the right to privacy. Using Substantive Due Process, previous Courts have held that “right of privacy” covers the right to access contraception (Griswold), the right to same-sex marriage (Obergefell), and until last week, the right to seek an abortion (Roe). Thomas doesn’t like substantive due process and has been actively opposed to granting any non-enumerated rights not explicitly guaranteed in the Constitution.
What does this have to do with the long-game?
The effort to overturn Roe v. Wade has been in the works for decades. The one-two punch of political gerrymandering and stacking the courts is proving to be an effective long-term investment in judicial reform by conservative activists.
In 2018, I was working for the U.S. Senate Committee on Homeland Security and Governmental Affairs and I was responsible for oversight over preparation for the U.S. Census. The Decennial Census – the requirement to count the entire U.S. population every ten years is also mandated in the constitution. The decennial census results are used for numerous public and private, research and business purposes. They are also used for redistricting – the process of drawing political districts. In 1964, the Supreme Court held that equal protection requires that state legislative districts should be comprised of “roughly equal populations,” if possible (Reynolds v. Sims). So, every ten years after the U.S. decennial census, states redraw their congressional legislative district maps in some very creative ways to limit or maintain political control through geographical boundaries – this process is called gerrymandering.
Twelve years ago, Republican operatives realized that they had an opportunity in the 2010 midterm elections to essentially “buy” control of state legislatures for pennies on the dollar in political fundraising terms. For a step-by-step explanation of the execution, check out the Planet Money Episode: REDMAP. You can still visit the REDMAP website here.
2) Stacking the Courts
While gaining control of state legislatures was instrumental in changing the political maps and make-up of congressional districts across the country, the decades-long effort to remake the judiciary is the lynchpin and the investment that is currently paying dividends.
In 2016, Trump, who was pro-life before he became a candidate for President, needed help finding these Judges. Enter Leonard Leo, the Co-Chairman of the Federalist Society. Before he was Trump’s Judicial advisor, Leo was a founding member of the Federalist Society, a clerk for the U.S. Court of Appeals in D.C., and a friend and counselor to Clarence Thomas.
After two decades of working to grow and develop a roster of conservative judicial candidates, the Republican party was thrown into chaos when Donald Trump stormed onto the political scene and won the Republican nomination for President. In an effort to win over the Evangelical vote, Trump promised to appoint pro-life judges to the Supreme Court who would work to overturn Roe v. Wade. and he’s devoted his entire career to getting conservatives appointed to the country’s most powerful courts. Gorsuch, Kavanaugh, and Coney-Barrett were all on Leo’s list along with a growing number of young conservative leaders that were members of the Federalist Society – many of whom were being groomed to rise in the ranks of the conservative movement.
When President Obama left office after eight years, there were 105 vacancies in federal judgeships, including one Supreme Court seat that Republicans held open for nine months after the death of Justice Scalia. By the time Trump left office after just one term, he had appointed more than 200 judges to the federal bench, many of whom were recommended by Leo.
Leo,Trump, Senate Majority Leader Mitch McConnell, and other Senate Republicans worked to stack the courts, especially the appeals courts – with young, conservative ideological judges. Many of Trump’s nominees were rated “unqualified” by the American Bar Association – a non-partisan professional organization. Nearly all were eventually confirmed.
Okay, so now what?
Writing for the minority in Dobbs, Justice Breyer cautioned that the Majority’s opinion is just the beginning. For Leo, the multi-decade long effort to build a roster of conservatives and stack the courts wasn’t a gamble – it was an investment. And, if Justice Breyer is correct, Leo’s investment will continue to pay dividends for decades to come and at a very real cost.
The long-term implications of Leo’s efforts have yet to be realized. This is the first time in the Court’s history that a Constitutional right has been taken away from the people. An act that is very much against the public sentiment.
Shortly after a draft of the majority opinion in Dobbs was released earlier this spring, a Gallup poll found that that the percentage of Americans that identified as “pro-choice” jumped six points to 55% compared with a reported range of 45-50% from ten years ago.
Additional research found that, a full 61% of Americans didn’t want Roe to be overturned; 57% of U.S. adults, including nearly all Democrats and a majority of independents, say the decision to overturn Roe was mostly based on politics rather than the law; and 58% of Americans say they have little or no trust in the U.S. Supreme Court.
Leo may have successfully stacked the courts, but he didn’t count for changing public sentiment. So far, it looks like Leo’s long-term investment is paying off, but the real test of his investment and public sentiment will be in November.