Thursday, December 02, 2021

The Company They Keep

Joseph Fishkin

Like many others, I was somewhat surprised to hear, in the oral argument in Dobbs, what sounded like perhaps five votes for going ahead and officially overruling Roe. The surprise was that there seemed to be less support than expected for the approach many of us anticipated from the Roberts Court: eviscerating abortion rights in some subtler way, with a sufficient amount of obfuscatory nodding toward precedent that news headlines could read “moderates uphold Roe,” and it would take a lawyer to understand or explain exactly why, despite such headlines, nobody could get an abortion in Mississippi anymore. From a purely political perspective, the latter approach has obvious advantages in terms of reducing public backlash against the Court, and has become a hallmark of the Roberts Court.

At oral argument it sounded like Chief Justice Roberts remained interested in that latter approach. But he needs one more vote, and the five other Republican Justices sounded like they were inclined toward the straight “we are overruling” style of overruling. Many caveats are in order. A lot can change between oral argument and decision. And indeed if one wanted to be really cynical, after the Justices’ performances at oral argument, a decision along the subtler lines Roberts seemed alone in favoring yesterday would even more effectively generate those confused headlines reporting erroneously that the center has held, and Roe is “not overruled.” However, let’s suppose the five Justices do what they sounded inclined to do at oral argument: the straight overruling. To me the interesting question is: Why would they do this exactly? Why incur greater backlash unnecessarily, when you can achieve the same substantive result without it?

In my view the most likely answer has to do with why a book called The Company They Keep, by Lawrence Baum and Neal Devins, is so important for understanding the current Supreme Court. The Republican Justices no longer spend their time with a community of other lawyers and judges of all political stripes. Instead they live in a relatively tight discursive community of Fed Soc and Fed Soc-adjacent conservative Republicans. In this narrower world, if you are a Supreme Court Justice, deciding a towering case that will define a substantial part of your personal legacy, you probably do not want to be on the side of moderation and compromise—even faux moderation and compromise. There is no legacy in that. You want to be with Thomas, and soak up the applause of your comrades-in-arms, even as most of the American public finds your performance appalling, partisan, and lawless. When you no longer spend your time talking with the general legal elite, but instead spend most of your time within a special, even-more-elite Fed Soc cadre, you probably want to be on the right side of the big stories your friends tell. Within that discursive community, the talk has moved in such a radical direction that instead of no more David Souters, the talk is now of no more John Robertses. (It is as though, instead of asking Justice Breyer to retire, progressives were saying “No more Breyers”!). Needless to say, ensconcing yourself in this sort of hyperpartisan circle may have a deleterious effect on your ability to anticipate how your words and actions will be received outside of that circle—particularly once those actions begin to cause harrowing stories to emerge from the regions of the country without access to safe abortion.

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