foreword
What is history but a
fable agreed upon?
—Napoleon Bonaparte.
Introduction
October Term 2021 was a momentous one for the United States
Supreme Court. In a series of decisions, the Court overturned two long-standing
precedents guaranteeing the right to abortion,
expanded the scope of the Second Amendment,
and appeared to consign the Establishment Clause to the dustbin of history.
This Collection focuses on the methods by which the Court produced that first
overhaul: specifically, on the state-counting methodology employed in Dobbs
v. Jackson Women’s Health Organization. Perhaps to soften the blow of this
jurisprudential shift, the Court invoked some of its most lauded landmark
decisions—decisions that are well-known for conferring rights and incorporating
once-excluded constituencies into the polity. The Court’s nod to these earlier
decisions was no coincidence. Indeed, it was likely an effort to cast its
rights-stripping decision in Dobbs as a descendant of the earlier
decisions’ rights-conferring moves. In blunter terms, the Court invoked
history while undoing it, raising a key question: what does it mean for the
Court to “do history”? That is the core premise and question at the heart of
the four essays comprising this Collection.
To mark the end of 2022, one of the most consequential years
in the Court’s history, Chief Justice John Roberts issued his annual report on
the state of the federal judiciary. Yet, in that year-end report, the Chief
Justice did not advert to those decisions unsettling decades of constitutional
history—at least not explicitly. Instead, he invoked an entirely different
history. In reflecting on 2022, the Chief Justice conjured images of “Paratroopers
and Guardsmen on duty at Little Rock Central High School,” just a few months
after “nine African-American children—later known as the Little Rock Nine—had
bravely entered the building to go to the formerly all-white school.”
It was perhaps unsurprising that the Chief Justice adverted
to the Southern Manifesto, Massive Resistance, and public opposition to Brown
v. Board of Education,
the 1954 case in which the Court overturned Plessy v. Ferguson and its
principle of “separate but equal.”
In the years since it was decided, Brown has become so canonical and
accepted that it is frequently invoked by those at different points on the
ideological spectrum to underscore the righteousness and correctness of their
positions.
Case in point: in Dobbs, the 2022 case that overturned Roe v. Wadeand Planned Parenthood v. Casey,
the majority opinion also referenced Brown in what seemed to be a
conscious effort to align its decision laying waste to nearly fifty
years’ worth of abortion jurisprudence with the iconic decision that laid the
foundation for an integrated, multiracial society.
Without doubt, the Chief Justice’s invocation of the post-Brown
history of Massive Resistance was an effort to bring the Supreme Court and its
recent (and controversial) decisions in line with a nobler past. More
particularly, it was an effort to elaborate and entrench the narratives that Dobbs
was Brown’s juridical heir and the Roberts Court, like the Warren
Court before it, possessed the backbone and moral clarity to stand firm in the
face of public criticism of, and backlash against, its decisions. Further, the
reference to this searing episode of Warren Court history likely was intended
to dignify—and indemnify—the Roberts Court, while painting its critics as the
descendants of the lawless rabble who, a generation ago, resisted calls for
integration.
In his report, the Chief Justice referenced Wiley Branton,
the Arkansas lawyer who represented the Little Rock Nine (and who later served
as the Dean of Howard Law School),
and Thurgood Marshall, who successfully argued Brown before becoming the
first African American to sit on the high court.
But in the Chief Justice’s telling, the true hero of the story was the
lesser-known Judge Ronald N. Davies, the district court judge who, in August
1957, issued the order permitting the Little Rock Nine to matriculate at
Central High School.
Chief Justice Roberts’s deep admiration for Judge Davies is
evident. As the Chief Justice explains, in the face of Governor Orval Faubus’s
blatant defiance of Brown v. Board of Education and its demand for
integration, Davies “did not flinch.”
Firm in his constitutional duty, Davies would later observe that “[i]n an
organized society, there can be nothing but ultimate confusion and chaos if
court decrees are flaunted.”
In referencing Judge Davies and the Little Rock Nine, the
Chief Justice sought to link the stalwart judge who enforced Brown and
its integration mandate to the present-day judiciary—and more particularly, the
current Justices of the Supreme Court. Despite threats to his personal safety,
Davies was “uncowed” and “stuck up for the rule of law.”
Who better to serve as the template for recasting the public image of the
Roberts Court? Instead of “nine lawyers in robes” prioritizing their
preferences, Roberts emphasized that, like Davies, the Justices of the Roberts
Court were steadfast stewards of the Constitution who adhered to the law,
regardless of public reproach and pressure.
Despite these efforts to recast the Roberts Court Justices as
neutral interpreters of constitutional law, Chief Justice Roberts’s invocation
of Judge Davies also underscores, perhaps unwittingly, the judicial agency and
activism at the heart of landmark decisions like Brown and Dobbs.
Even as he lavished praise upon Davies, the Chief Justice only recited part of
the post-Brown history. As the historical record makes clear, for every
Judge Davies, there was also a Judge Harry J. Lemley, who, in June 1958, issued
a decision allowing the Little Rock School Board to suspend its plan for the
gradual integration of the public schools until January 1961.
If Judge Davies “did not flinch” in the face of popular
demands to resist integration, then Judge Lemley was acutely aware of public
opposition to Brown and its integration mandate. As he recounted in his
opinion, in the wake of the Little Rock Nine’s matriculation, circumstances at
Central High School had become increasingly tense.
In addition to the continued presence of federal troops—itself a disruptive
presence—there had also been “repeated incidents of more or less serious
violence directed against the Negro students and their property,”
“numerous bomb threats,”
“a number of nuisance fires started inside the school,”
the “desecration of school property,”
and “the circulation of cards, leaflets and circulars designed to intensify
opposition to integration.”
The situation had become so fraught that W. P. Ivey, a long-time math teacher
at Central High, “testified that the presence of the Negro students created a
tension on the part of both students and teachers that was noticeable every
day, and that this tension impaired his ability to teach and the receptivity of
his students.”
To be sure, Judge Lemley explained, these incidents and the
tensions they produced “did not stem from mere lawlessness” or “any malevolent
desire.”
“Rather, the source of the trouble was the deep seated popular opposition in
Little Rock to the principle of integration, which, as is known, runs counter
to the pattern of southern life which has existed for over three hundred
years.”
Further amplifying the tension was “the conviction,” shared by many in Little
Rock, “that the Brown decisions do not truly represent the law.”
Reading the Supreme Court’s decision in Brown II to
require that integration proceed “in an ‘effective manner,’”
Judge Lemley reasoned that “a transition which impairs or disrupts educational
programs and standards, and which will continue to do so, is not in the public
interest, but, on the other hand, inflicts irreparable harm upon all of the
students concerned, regardless of race.”
With this in mind, Lemley decreed that “the personal and immediate interests of
the Negro students affected, must yield temporarily to the larger interests of
both races” in the effective operation of the school system.
Irrespective of the Supreme Court’s edicts on the question, in Lemley’s eyes,
popular unrest meant that integration could—and should—be deferred to another
day.
The Supreme Court, however, disagreed, roundly rejecting
Judge Lemley’s logic in Cooper v. Aaron.
There, the Court made clear that its interpretations of the Constitution are
“the supreme law of the land,” with “binding effect on the States.”
It is unfortunate that the Chief Justice’s account of the
post-Brown landscape did not sweep so broadly as to include Judge
Lemley, Cooper v. Aaron, and the Court’s emphatic rebuke of Southern
resistance to Brown. Indeed, the contrast between Judge Davies and Judge
Lemley is illuminating. In the face of public pressure, Davies stayed the
constitutional course and insisted on fidelity to Brown and the rule of
law. Lemley interpreted the law and his judicial duty differently, focusing on
the Court’s decree that integration be accomplished in an “effective manner.”
As he saw it, fidelity to the rule of law did not require pushing forward, but
rather, applying the brakes.
The contrast between Judge Davies and Judge Lemley
underscores an important dynamic for judges and the project of judging with an
eye on—and toward—history. These two jurists are proof that judges—and by extension,
justices—are not merely umpires calling “balls and strikes.”
In issuing decisions on pivotal issues (and more anodyne fare), judges exercise
agency and judgment. In doing so, they may themselves serve as instruments of,
or impediments to, change.
Likewise, a judge’s invocation of, and reliance on, history
is not an objective endeavor but rather an exercise of agency and judgment.
Chief Justice Roberts’s decision to align his Court—and Dobbs—with Judge
Davies and Brown was a choice. Judge Lemley and Cooper v.
Aaron are proof that there were other judicial exemplars, and a more
fulsome history, that could have informed the Chief Justice’s account of the
post-Brown milieu—indeed, one that more accurately parallels the Roberts
Court’s regressive behavior in Dobbs. But the specter of Lemley and Cooper
undoubtedly would have detracted from the Chief Justice’s twin efforts to
counter the popular view of Dobbs as flouting stare decisis principles,
and to recast the members of his Court as faithful stewards of the rule of law.
This is all to say that history is hardly a passive endeavor.
The individual may exert agency as to how she is remembered. Indeed, an
appeal to favorable history—and the neglect of less favorable history—is, by
itself, an attempt to shape one’s place in the historical record. Through the
invocation of certain narratives, the individual may take a role in shaping how
future generations remember and judge her and the events in which she is
participating. Our understanding of our collective past and founding truths can
be recast and shaped into new narratives that tell new stories about who we
were, as well as who we are—and who we want to be. In this regard, the Chief
Justice’s appeal to Brown and its surrounding history is not simply a recounting
of a history in which judges were courageous and righteous; it is also an
attempt to imbue Dobbs—a decision steeped in controversy and
critique—with the same patina of legitimacy and righteousness that attends Brown.
And critically, in “doing history,” certain moments may be embellished and
emphasized, while others are overlooked and ignored. In this way, “doing
history” is not just the retelling of a past; it can be a remaking of
that past—and our place in it.
This account of history as active and malleable is as evident
in the Dobbs majority opinion as it is in the Chief Justice’s 2022
year-end report. In both, the authors go to extraordinary lengths to cloak
their actions in the mantle of Brown and the Warren Court’s sober,
resolute commitment to judicial integrity and the rule of law. The rub, of
course, is that the Roberts Court is donning Warren Court drag to drag
the Warren Court—that is, to dismantle the progressive gains that the Warren
Court set in motion in 1954.
So, with these inversions in mind, what does it mean for nine
unelected lawyers to do—or make—history in the context of interpreting
constitutional text and divining constitutional rights? How should the past
shape our understanding of what rights and privileges are available in our
present moment? What role does history play in shaping the public’s perception
of a decision—and of the deciding Court? This Collection presents a rich
opportunity to interrogate what it means to invoke history—to use history—as
a basis for understanding the nature of rights, the identity of rightsholders
in a diverse and pluralistic nation, and the Court itself.
This Foreword proceeds as follows: Part I canvasses the four
contributions to this Collection. As I detail, these essays consider the Dobbs
Court’s use of history, and more importantly, locate the Court’s
state-counting methodology in a broader jurisprudential and political
landscape. In Parts II and III, I elaborate on some of the themes that surfaced
in the Collection’s essays. Specifically, in Part II, I discuss how members of
the Roberts Court have cobbled together various histories to advance the view
that the effort to expand reproductive rights in the United States is underlaid
by a eugenic desire to thwart and limit reproduction among racial minorities.
In Part III, I show how this invented history may underwrite a contemporary
drive to enshrine the principle of fetal personhood in constitutional law.
Taken together, these developments suggest how the Dobbs Court’s
selective use of history goes beyond curbing access to abortion—it may lay the
foundation for a reappraisal of the courts’ role in protecting minority
interests, including an interest in the fetus as a distinct, rights-bearing
entity.
I. history and the roberts court
The four contributions to this Collection all coalesce around
a central theme: that the Roberts Court, for all of its bleating about
neutrality and objectivity, has deployed history—and in particular, the method
of counting state-level statutes to divine the existence of historical or
traditional practices—in a manner that yields certain outcomes. The genius of
this outcome-driven approach is that the appeal to history is viewed as an
objective enterprise, insulating the Court from criticism that it is
outcome-driven. But notably, the history on which a majority of the Court has
relied in some of its most consequential decisions does not tell the whole
story—it is selective and instrumental.
The Court’s disposition of Dobbs v. Jackson Women’s Health
Organization epitomizesthis seemingly neutral, but deeply weighted, approach to
the past. In Dobbs, the Court overruled nearly fifty years’ worth of
precedent on the view that a right to abortion was neither constitutionally
enumerated nor rooted in the history and traditions of the United States.
The appeal to history in Dobbs was purposeful. In an effort to “guard
against the natural human tendency to confuse what that [Fourteenth] Amendment
protects with our own ardent views about the liberty that Americans should
enjoy,” the Dobbs majority turned to history for an “impersonal” account
of the Fourteenth Amendment and its guarantees.
On this telling, the majority’s “history-and-tradition” methodology was
critical for presenting the resulting decision as objective, restrained, and
consistent with the Court’s role in preserving for the people a crucial
decision-making role in our democracy.
In her essay, The History of Neutrality: Dobbs and
the Social-Movement Politics of History and Tradition, Professor Mary Ziegler challenges
this view of history as yielding ostensibly neutral outcomes. Indeed, as
Ziegler explains, the history-and-tradition approach that Dobbs exemplifies
is, by itself, a methodological choice to prioritize certain accounts over
others—not a “neutral” one as is so frequently claimed.
In Dobbs, the majority deployed a “unitary” approach that insisted “that
tradition is (and should be) unchangeable and rooted in the Judeo-Christian
values that were argued to animate the nation’s founding.”
In adopting this approach, the Dobbs majority disregarded the
“pluralist” model of history and tradition exemplified in Justice John Marshall
Harlan II’s dissent in Poe v. Ullman.
The pluralist approach, Ziegler argues, arose as part of social movement
contestation over individual rights—and sexual and reproductive rights, in
particular—in the 1950s and 1960s.
Rather than demanding a fixed and static approach to history, as the unitary
approach did, the pluralist approach was fluid, “insist[ing] that history and
tradition served as a key constraint on the courts while acknowledging that the
meaning of tradition changed over time.”
Ziegler makes clear that historical methodologies are
various—they are both contested and contestable. And as the 1980s dawned, the
unitary approach, with its static account of Founding values, flourished in the
hothouse of the emerging conservative legal movement and its antipathy for
Warren Court-era progressivism.
Rebranded under the banner of “originalism,” the unitary approach to history
and constitutional interpretation was billed as the method most likely to
restrain “activist” judges and yield “neutral” outcomes.
However, as Ziegler observes, the unitary approach was also most likely to
yield the substantive outcomes that conservatives sought.
Ziegler’s account of the tensions between the unitary and
pluralist approaches is powerful—and points to a critical insight. There is no
single “history” on which the Court—or any other decision-making body—can rely.
Because a multitude of methods exist and are available to be deployed, no
single historical approach can claim to get it right—that is, no single
approach can actually “do” history objectively in the service of neutral
principles. As Ziegler demonstrates in her assessment of the conservative
embrace of the unitary approach, in a world of competing histories and historical
methodologies, the decision to settle on a single history and methodology is
necessarily a choice underwritten by a particular set of values.
In her Collection contribution, The History of History and
Tradition: The Roots of Dobbs’s Method (and Originalism) in the
Defense of Segregation, Professor Reva B. Siegel focuses on
the Court’s efforts to align itself and the Dobbs decision with Brown
v. Board of Education. As Siegel explains, the majority’s many nods to Brown
is a legitimating exercise designed to insulate the Dobbs Court—and
its overruling of Roe and Casey—from internal and external
scrutiny.
Nevertheless, the majority’s embrace of Brown is
deeply problematic. As Siegel explains, in its zeal to invoke Brown to
legitimate Dobbs, the Dobbs majority relied on the very methods
that were once employed to oppose Brown.
In particular, Siegel points to Justice Alito’s ostensibly objective method of
counting state statutes prohibiting abortion to support the majority’s
conclusion that the abortion right was not deeply rooted in the history and
traditions of this country.
This “state-counting” method, Siegel maintains, recalls both Briggs v.
Elliott, a 1951 case in which a three-judge panel of the Eastern District
of South Carolina credited the state’s authority to maintain segregated public
schools,
and the Southern Manifesto, in which Southern Senators tallied the number of
Reconstruction-era statutes permitting racial segregation to undermine and
resist Brown’s integration mandate.
Although “state-counting” ultimately proved unsuccessful in halting the march
toward integration, Siegel notes that then-Justice William Rehnquist later
repurposed state-counting in his dissent in Roe, seeding the ground for
the Dobbs Court’s later use of this method.
As Siegel explains, the state-counting method was a means of
using the past to legitimate policy preferences that were falling out of favor
in the present. By counting state laws that blessed segregation or prohibited
abortion, those opposed to integration and abortion rights could give their
policy preferences the veneer of neutrality.
But state-counting—and the originalist impulse from which it springs—is hardly
objective, as its adherents claim.
Instead, under this approach, historical sources are selectively recruited to
ventriloquize particular policy choices. On this account, “an assertedly
value-neutral method—like state counting in 1868—can serve, not to constrain,
but to express and conceal the interpreter’s values.”
Aaron Tang’s Collection contribution, Lessons from Lawrence:
How “History” Gave Us Dobbs—And How History Can Help Overrule It, also considers the state-counting method used in Dobbs—this time in the context of Lawrence v.
Texas, where the Court rejected the state-counting methodology as a means
of determining the scope and substance of substantive due process rights.
Tang begins by observing, as he has previously, that the Dobbs Court
applied state-counting poorly, misstating the precise number of states that had
complete prohibitions on abortion at the time of the Fourteenth Amendment’s
ratification, and ignoring the role that quickening played in the historic
regulation of abortion.
Crucially, the Dobbs majority neglected the history of nonenforcement of
abortion laws,
as well as the fact that many nineteenth-century Americans understood—and
defended—a woman’s right to terminate a pregnancy.
Writing with an eye on the future—and a future Court—Tang optimistically
predicts that these historical errors could, in time, furnish grounds for
overruling Dobbs.
It has happened before. As Tang explains, the Court’s 2003
decision in Lawrence v. Texas
makes clear exactly how this might occur. In 1986, the Court, in Bowers
v. Hardwick,
upheld a Georgia sodomy statute.
In doing so, the Bowers Court, like the Dobbs Court, relied on a
static, “unitary” approach to history and tradition, tallying the number of
state-level laws, from the colonial period to the present, that criminalized homosexual
sodomy.
But the Bowers Court made crucial errors—it failed to appreciate that
“not a single one of the criminal sodomy laws” on which it relied targeted
homosexuality qua homosexuality and it did not acknowledge “that the
vast majority of the laws went unenforced.”
Seventeen years later, the Court, in Lawrence, would point to these
historical errors as grounds for overruling Bowers.
Moreover, as Tang notes, the Lawrence Court went even further,
jettisoning the unitary history-and-tradition test in favor of a more pluralist
approach to fundamental rights that ratified core values of dignity, equality,
and human flourishing.
In Tang’s telling, Lawrence offers important lessons
for the future overturning of Dobbs. Not only is Dobbs’s account
of history subject to the same criticisms that felled Bowers, Lawrence’s
prioritization of the constitutional values of liberty and equality over
history alone signals a jurisprudential approach that is both a rebuke to and a
remedy for Dobbs. Indeed, pointing to the Dobbs Court’s
dismissive treatment of equality arguments, Tang argues that when a future
Court overrules Dobbs, it should correct Dobbs’s dismissive
treatment of equal protection by rooting its decision in principles of
equality, as much as liberty.
Equality’s possibilities also loom large in Professor Cary
Franklin’s Collection essay, History and Tradition’s Equality Problem.
As Franklin observes, the Court’s history-and-tradition approach stubbornly
refuses to take account of the Equal Protection Clause. The refusal to consider equal
protection, as much as the Court’s interest in history and tradition, leads
inexorably to certain outcomes. After all, as Franklin notes, equality is a
poison pill to the Court’s favored history-and-tradition methodology for the
simple reason that the Equal Protection Clause was “designed to be
forward-looking, to put an end to the oppressive practices of the past and to
effectuate a new promise of equal citizenship.”
On this account, even if a Court concluded, as it did in Dobbs,
that America’s history and traditions do not support a right to abortion, it
could not resuscitate that history if doing so would offend principles of equal
protection.
Even in the face of a million nineteenth-century laws prohibiting abortion, the
Court would have to grapple with the Equal Protection Clause and a
constitutional mandate that refused to credit policy choices that are rooted in
impermissible, identity-based stereotypes.
As Franklin and others note,
the Dobbs majority gave equal protection short shrift, dismissing it as
“squarely foreclosed by our precedents.”
According to Franklin, the Court’s perfunctory treatment of equality suggests
that “significant constitutional determinations concerning equality may be made
invisibly or implicitly, with little or no analysis or justification.”
This disregard of equality, in tandem with the Dobbs majority’s slavish
adherence to history and tradition, offers the Court an avenue “to silently gut
or dismantle equal protection doctrine.”
As Franklin observes, many of the cases in which the Court
has deployed the history-and-tradition approach are not equal-protection cases.
Nevertheless, in those cases, the Court deploys its preferred
history-and-tradition methodology to vindicate its particular vision of
equality and equal protection—and a particular understanding of the
constituencies in need of judicial solicitude.
Taken together, these four essays strip Dobbs down to
its bones, revealing the deliberately outcome-driven architecture that
scaffolds its holding. As these four essays make clear, the Dobbs Court’s
decision to overrule Roe and Casey was not the manifestation of
objective historical directives. Rather, it was a choice—a choice that
was careful, considered, and cloaked in distracting appeals to classic symbols
of comfort, legitimacy, and the rule of law. This intentionality underscores
what it means to make history: to make is not to identify, but to shape,
create, name, and claim.
II. beyond brown and plessy: the
court’s appeals to racialized history
Several other aspects of the Dobbs decision reflect
the Court’s calculated choices about which histories to elevate and which
histories to suppress in the effort to present specific policy choices as
neutral—and foreordained. As several of the essays in this Collection note,
part of the Dobbs Court’s strategy for legitimizing the overruling of Roe
and Casey involved linking Roe and the abortion right to Brown
and its denunciation of Plessy’s misguided endorsement of separate
but equal.
But critically, the Dobbs Court’s calculated use of
history goes beyond merely reframing Roe as Plessy’s heir and Dobbs
as Brown’s. In an unassuming footnote, the Dobbs majority
credits the view—long husbanded by Justice Thomas—that
abortion has been deployed as a vehicle of deracination and genocide. As Justice Alito explains, a series
of amicus briefs filed in Dobbs argued that those favoring “liberal
access to abortion . . . . have been motivated by a
desire to suppress the size of the African American population.”
According to Alito, empirical evidence supported the view of abortion as racial
genocide: “it is beyond dispute that Roe has had that demographic
effect.”
After all, “[a] highly disproportionate percentage of aborted fetuses are
Black.”
In noting the concordance between race and abortion, Justice
Alito cites Justice Thomas’s separate opinion in 2019’s Box v. Planned
Parenthood of Indiana & Kentucky,
which featured a challenge to an Indiana law that prohibited abortion if
undertaken for reasons of race or sex selection or because of the diagnosis of
a fetal anomaly.
Critically, Thomas’s Box concurrence also focused on history—or at least
what purported to be history. In his Box concurrence, Thomas asserted
that “[t]he foundations for legalizing abortion in America were laid during the
early 20th-century birth-control movement,” which “developed alongside the
American eugenics movement.”
According to Thomas, reproductive-rights pioneer Margaret Sanger partnered with
the eugenics movement, endorsing contraception as an effective method of
population control.
And critically, the shared interest in optimizing the size and quality of the
population was, Thomas maintains, laced with racial animus. Sanger, he noted,
“campaigned for birth control in black communities”—deliberately siting
birth-control clinics in Black neighborhoods, like Harlem, in order to target
Black reproduction.
The effort to link abortion to the history of the eugenics
movement and the prospect of racialized genocide is deeply meaningful as an
exercise in making history. If the comparison to Plessy served to cast Roe
as a misguided decision that was rightly overruled, then the imbrication of
abortion, eugenics, and racialized genocide further elaborates the comparison
by intimating that legalized abortion has injured the Black community in similar
ways as the horrors of Jim Crow. Reframed as a technology of eugenics, abortion
is recast as a method of deracination—akin
to Nazi Germany’s decimation of the European Jewish population.
In this vein, the Dobbs Court’s decision to rescind the constitutional
right to abortion that Roe recognized is not a regressive assault on
gender equality.
Instead, by resort to this invented history, itis recast as a
progressive vindication of racial justice and the Court’s role in protecting
“discrete and insular minorities.”
As I have elsewhere argued, the history that Justice Thomas
sketched—and that Justice Alito cites in footnote forty-one of Dobbs—is
selective and incomplete.
As an initial matter, Thomas blithely conflated the history of the
birth-control movement and contraception with the history of abortion, although
the two are quite different.
Meaningfully, neither the eugenics movement nor Margaret Sanger advocated
abortion.
An early advocate of “voluntary motherhood,”
Sanger decried abortion as “the abnormal, often dangerous, surgical operation,”
insisting that ready access to contraception would better facilitate women’s
ability to choose motherhood on their own terms.
For its part, the eugenics movement’s efforts were focused on
optimizing the white race through coercive sterilization, miscegenation bans,
and restrictive immigration policies.
Its interests in racial engineering did not extend to abortion, and its
activities were largely focused on rooting out “defective” whites and
preventing the “mongrelization” of the white race, not on coercing unwitting
Black communities to exercise reproductive freedom.
Justice Thomas’s narrative overlooks these unhelpful facts
(which are readily accessible) while also ignoring the Black community’s agency
in seeking broader access to contraception. As Professor Dorothy Roberts notes,
“Black women were interested in spacing their children and Black leaders
understood the importance of family-planning services to the health of the
Black community,” which, then as now, faced startlingly high rates of maternal
and infant mortality.
Eager to secure the Black community’s economic stability, W.E.B. Du Bois
publicly endorsed birth control as a means of vesting Black women with the
ability to choose “motherhood at [their] own discretion.”
And these are not the only histories that Justice Thomas
elides in the effort to forge a new history in which abortion is a tool of
eugenics and Roe is a vehicle of racial injustice. In conflating the
history of the birth-control movement with the history of abortion, Thomas
neglects the degree to which the nineteenth-century campaign to criminalize
abortion was underwritten by its own elements of racial injustice. As scholars
have noted, nativism and white supremacy animated the push to criminalize
abortion in the nineteenth century. Falling birthrates among native-born
white women, coupled with rising birthrates among immigrant and nonwhite
populations “fuel[ed] concerns that the nation was on the precipice of a
massive demographic reordering.”
The criminalization of abortion proceeded amidst fears that “these demographic
changes would radically alter the nation’s character (and reduce the political
power of native-born whites),” and in the hope that such measures would
“deter[] native-born white women from terminating pregnancies.”
Drawing comparisons to contemporary “Replacement Theory” (and confounding
Thomas’s selective history), Reva Siegel and Duncan Hosie have shown that the
effort to criminalize abortion was part of a broader effort to ensure that
America remained a white nation.
Yet this inconvenient history, which makes clear the nativist and white
supremacist impulses that undergirded nineteenth-century abortion restrictions,
is utterly absent in Thomas’s cobbled-together narrative.
Nevertheless, despite its obvious omissions and flaws,
Justice Thomas’s association of abortion with eugenics is powerful. For years,
women’s rights advocates have made the case that reproductive freedom was
essential for women’s equality.
More recently, reproductive justice advocates have expanded this frame to show
how limits on abortion and contraception not only implicate gender equality,
but race and class equality as well.
Taken together, these efforts forged a new social meaning for reproductive
rights—one in which more liberal access to abortion (and contraception) were
part of an intersectional appeal to gender, race, and class equality.
But Justice Thomas’s thin history, which the Dobbs
majority seemingly incorporates by reference, turns this logic on its head. If
the reproductive-justice movement, in tandem with the reproductive-rights
movement, argues that restrictions on abortion are not just about gender
injustice but also about race and class injustice, then the association of
abortion with eugenics counters these intersectional justice claims by
insisting that the real injustice is abortion’s decimation of
communities of color.
In this regard, Thomas’s Box concurrence and the Dobbs majority
opinion remade history in an effort to transform the social meaning of abortion
once again.
And critically, this use of history is also an attempt to
reshape our understanding of jurisprudence and the Court’s obligation to follow
precedent. Justice Thomas’s abortion and genocide narrative is powerful in many
respects, but it is perhaps most effective in bolstering the view that Roe
and Casey were illegitimate decisions that were not entitled to stare
decisis deference. That is, by associating abortion with racial genocide,
Thomas constructs an argument that paints Roe and Casey with the
brush of racial animus.
On this account, in addition to concerns about its poor reasoning and misguided
identification of a fundamental right, Roe is suspect—and ripe for
overruling—because it is rooted in racism.
And critically, this racially remedial logic has underwritten departures from
precedent in the past.
In October Term 2019, in Ramos v. Louisiana,
the Court overruled a 1972 precedent in part because an earlier Court failed to
appreciate the challenged policy’s white supremacist underpinnings. In this regard, the broader interest in racial justice—and remedying the
racial injustices wrought by earlier generations—bolstered the case for
overturning Roe and withdrawing the abortion right.
In the end, of course, the decision to scuttle Roe and
Casey did not explicitly rest on claims of irredeemable racial animus,
but rather on another contestable historical account: the flawed state-counting
method that the essays in this Collection discuss at length.
But even though it is not the crux of the Dobbs Court’s
reasoning, Justices Alito and Thomas’s efforts to paint abortion and its
history with the brush of racism are deeply meaningful. Through its marshaling
of a contested—and contestable—history linking abortion and eugenics, footnote
forty-one of Dobbs cultivates the view that abortion has genocidal
potential, conjuring images of Nazi concentration camps and other efforts to
eradicate minority groups.
Viewed through this incendiary lens, not only is the social
meaning of abortion transformed, but also the social meaning of abortion restrictions.
In a world in which abortion is a tool of deracination, abortion restrictions
assume new import. Rather than being viewed as limits on women’s intersectional
liberty and equality, abortion restrictions are recast as antidiscrimination
measures designed to prevent the most egregious form of racial injustice:
genocide.
The effort to remake the meaning of abortion restrictions—and
indirectly, the overruling of Roe and Casey, which would have
subjected such restrictions to more searching judicial review—aligns with the Dobbs
Court’s cooptation of Brown’s history. In much the same way the majority
sought to reframe the overruling of Roe and Casey as akin to the Brown
Court’s disavowal of Plessy, footnote forty-one aligns the abortion
restrictions that will surely follow in Dobbs’s wake as necessary
tools of racial justice.
III. history and the vindication of the rights of
(new) discrete and insular minorities
The majority’s invocation of the thin history linking
abortion to eugenics serves to provide an additional justification for the Dobbs
decision, recasting it—and the abortion restrictions that will inevitably
flow from it—as acts of racial justice. But racial justice for whom? As this
Part argues, the effort to associate abortion with the eugenics movement goes
beyond simply reshaping the social meaning of abortion. It may also undergird
an effort to enshrine the fetus as a rights-bearing minority for purposes of
constitutional and statutory law.
Although footnote forty-one notes the disproportionate rates
of abortion among Black women, it is likely that Black women and the Black
community are not the only—or even the intended—beneficiaries of abortion
restrictions’ antidiscrimination potential. Under footnote forty-one’s logic,
abortion restrictions, in the long-term, prevent the deracination of vulnerable
minority communities. But in the short-term, they protect another vulnerable
entity: the fetus.
In other words, the account of abortion as genocide is not only an effort to
recast abortion restrictions as an element of racial justice; it is also an
effort to identify the fetus as an entity in need of judicial
protection. Viewed in this light, the Dobbs Court’s deployment of this
selective and incomplete history serves a particular purpose. To cast abortion
restrictions as antidiscrimination measures suggests, however implicitly, that
the fetus is an entity subject to discriminatory actions and in need of
state protection.
In this way, footnote forty-one and the argument it undergirds gesture toward
fetal personhood—the view that the fetus is a person imbued with rights that
the Constitution protects.
Since Dobbs was decided, fetal personhood rhetoric has
proliferated. In a much-discussed ruling in a challenge to the Food and Drug
Administration’s 2000 approval of mifepristone, the first drug in the two-drug
medication abortion protocol, a federal trial judge deployed the vernacular of
fetal personhood repeatedly, referring to fetuses as “unborn humans,” “babies,”
and “children.”
In a recent oral argument before the Florida Supreme Court concerning a
proposed ballot initiative that would enshrine protections for reproductive
freedom in the state constitution, the court’s Chief Justice repeatedly
questioned the advocates as to whether the Florida Constitution recognized the
fetus as a person.
The logic of his questions was evident: If the fetus was a person for purposes
of state law, then the proposed ballot initiative, and its protections for
reproductive rights, was an impermissible modification of the fetus’s rights
under Florida law.
Finally, in a widely discussed decision, the Alabama Supreme Court embraced the
logic of fetal personhood in determining that the state’s wrongful death
statute could be deployed in circumstances involving the destruction of
cryogenically preserved embryos, which the court referred to as “extrauterine
children.”
Critically, these gestures toward fetal personhood may signal
another, perhaps more concerning development. In nodding toward fetal personhood,
the Dobbs majority frames fetuses as a minority group in
need of judicial protection.
In so doing, the Dobbs majority does not simply credit the view that the
fetus is a rights-bearing individual—it underwrites the fetus’s equality relative
to other rights-bearing individuals.
There is no principle more central to the logic of equal
protection than the rights of minorities. In another consequential
footnote—footnote four of United States v. Carolene Products Co.—the
Court sketched a hierarchy of claims that would trigger heightened judicial
scrutiny and protection.
As footnote four explained, more searching judicial scrutiny was warranted in
circumstances where government actions implicated fundamental rights, impaired
the political process, or intruded upon the rights of “discrete and insular
minorities.”Years later, in his seminal work, Democracy and Distrust: A Theory of
Judicial Review, constitutional theorist John Hart Ely would elaborate the
question of the Court’s obligations to preserve the pathways of political
participation and to protect politically vulnerable minorities.
In his defense of the Warren Court and its decisions dismantling segregation
and enfranchising racial minorities, Ely gestured to United States v.
Carolene Products footnote four to argue that judicial review was not
countermajoritarian, as some claimed, but rather, democracy-enhancing
when it operated to perfect the political process and facilitate the
participation of “discrete and insular minorities” who required the Court’s
interventions to protect their interests from the vicissitudes of majoritarian
politics.
The logic of Democracy and Distrust shadows the
Court’s disposition of Dobbs. As the Dobbs majority explains, Roe—and
later Casey—conjured a fundamental right out of whole cloth, depriving
the people of the opportunity to deliberate and decide the abortion question
for themselves. On this telling, Dobbs does no more than return a
fraught and divisive issue “to the people and their elected representatives.”
Curiously, for a decision that is utterly preoccupied with
promoting democracy and democratic engagement, the Dobbs majority
opinion spends little time pondering Democracy and Distrust and Ely’s
views of judicial review as a democracy-enhancing enterprise.
Instead, the Dobbs majority focuses its attention on one of Ely’s
earlier works, the 1974 Yale Law Journal article, The Wages of Crying
Wolf: A Comment on Roe v. Wade. Indeed, in its first pages, the Dobbs
majority specifically notes that in his “memorable and brutal” essay, Ely
decried Roe as “‘not constitutional law’ at all and g[iving] ‘almost no
sense of an obligation to try to be.’”
But the majority’s interest in Wages likely goes
beyond Ely’s account of Roe as “a very bad decision,”
and instead may speak to a latent interest in refashioning the fetus as a
minority in need of judicial protection and solicitude. In Wages, Ely
critiqued Roe’s prioritization of the pregnant woman’s rights and
interests above those of the fetus.
In a telling passage, Ely conceded that women frequently lacked political
power: “Compared with men, very few women sit in our
legislatures . . . .”
But, Ely noted, women’s political powerlessness paled in comparison to another
entity’s vulnerability. According to Ely, “no fetuses sit in our legislatures.”
Viewed through this lens, the unstated connections between
the Dobbs majority’s invocation of Ely’s The Wages of Crying Wolf
and the “abortion as genocide narrative” become more legible. In canvassing the
history of scholarly critiques of Roe, and highlighting Ely’s critique,
the Dobbs majority lays the foundation for rebranding the fetus as a
minority—and remaking our understanding of Roe and its place in
constitutional law. If judicial review is intended to, among other
things, protect “discrete and insular minorities” who are powerless to press
their interests in majoritarian processes, then Roe’s vindication of the
pregnant woman’s rights left the fetus utterly bereft of judicial protection.
In this regard, Roe was doubly problematic. It not only deprived the
people of the opportunity to decide a contentious issue for themselves,
but it also ran roughshod over the interests of the fetus, a politically
powerless minority.
In this regard, the selective history of the abortion as
genocide, like the Dobbs majority’s invocation of Brown, recalls
the Chief Justice’s invocation of Massive Resistance. Just as the appeal to Brown
and Massive Resistance served to cloak the Court in the mantle of Warren
Court progressivism, the cobbled-together history of abortion and eugenics
seeks to rebrand opposition to abortion as a species of racial justice and
fidelity to underserved minorities more broadly. But critically, this “made”
history may serve other purposes—beyond simply reframing how the public sees
the Court and how the Court sees itself. Instead, in making this new history of
abortion as eugenics, the Court and its members also are remaking our
understanding of constitutional equality, racial justice, and the identities of
those “discrete and insular minorities” whom the Court is obliged to protect.
Conclusion
So, what does it mean for the Supreme Court to “do” history?
As the four essays in this Collection suggest, for the Court, “doing” history
is a dynamic enterprise—one in which the Justices may emphasize certain facts
and accounts, while completely occluding others. In this regard, “doing”
history is often tantamount to “making” history. The Court frequently invokes
the past as a means of recasting the present in terms that will be more
palatable to the public—and future publics.
But the invocation of history goes beyond insulating the
Court’s decisions from public critique, whether in the present or the future.
It is also about the Court creating an image of itself and advancing a
normative project under the banner of that remade image.
It is often said that history is written by the victors,
suggesting that while history is rooted in a collection of objective facts,
those facts are subject to interpretation by those who have the power and
position to craft the narrative. In his 1996 dissent in Romer v. Evans,
Justice Scalia echoed this point, famously observing that “[w]hen the Court
takes sides in the culture wars, it tends to be with the knights rather than
the villeins—and more specifically with the
Templars . . . .”
On this telling, the Court’s account of its own work tends to frame that work
as heroic, righting wrongs and vindicating important collective values.
Nowhere is this impulse more evident than in the Court’s
presentation of its work in Dobbs. From the majority’s reliance on
history to present its decision as neutral, objective, and in the service of
racial justice and democratic engagement, to the Chief Justice’s efforts to
align his Court with Judge Davies and the noble pursuit of the rule of law,
history is a lens through which the Court may refract and reshape its own
image—for itself, the public, and its future jurisprudence.
Frederick I. and Grace Stokes Professor of Law, New York
University School of Law. Many thanks to Reva Siegel for helping to organize
this Collection, and to the editors of the Yale Law Journal for editing
and publishing these essays. The insights and impressions conveyed in this Foreword
reflect in large part helpful conversations that occurred at the American
Society for Legal History’s annual meeting where I, alongside Professors Cary
Franklin, Reva Siegel, Aaron Tang, and Mary Ziegler, took part in a
wide-ranging discussion moderated by Professor Jack Balkin. I am grateful to my
fellow panelists, our moderator, and all of the conference participants for
their helpful comments and critiques. Additionally, Deborah Archer, Brittany
Farr, Daniel Harawa, Leah Litman, Serena Mayeri, Caitlin Millat, Doug NeJaime,
Reva Siegel, Kate Shaw, and Karen Tani provided helpful feedback on earlier
drafts. I’m indebted to the student editors of the Yale Law Journal for
outstanding editorial assistance. All errors are my own.