For the Balkinization 20th Anniversary Symposium
Khiara M. Bridges
The November issue of the Harvard Law Review is always dedicated to the Supreme Court’s most recently concluded Term. I had the honor of writing the Foreword to the November 2022 issue of the Review. The October 2021 Term included cases that touched on some of the most politically salient issues in the U.S. today, including climate change, the place of religion in public life, guns, and abortion rights. One part of my Foreword is an investigation into the role of race in two of the Court’s biggest cases last Term—New York State Rifle and Pistol Association v. Bruen, in which the Court interpreted the Second Amendment to protect a very broad right to bear and carry arms, and Dobbs v. Jackson Women’s Health Organization, in which the Court overturned Roe v. Wade and returned the question of abortion’s legality to the states.
The Foreword analyzes the way that race operated in those cases. It argues that although neither case is about race—and although the Court did not have to talk about race to adjudicate the constitutional question before it—the Court deployed race in the service of its preferred policy outcome. To be precise, the Court framed its decisions in both cases as ones that would be work to undo racial hierarchy and racial subordination. In essence, the Court positioned itself as a champion of racial justice.
Justice Thomas’s majority opinion
in Bruen continues a narrative about the relationship between gun rights
and black liberation that began in District of Columbia v. Heller and
continued in McDonald v. City of Chicago. In this narrative, gun rights
and gun possession are essential to black freedom. The Bruen majority
opinion describes recently emancipated black people who “had ‘procured great
numbers of old army muskets and revolvers, particularly in Texas,’ and
‘employed them to protect themselves’ with ‘vigor and audacity.’” It recounted
the stories of black people who considered it essential to possess firearms if
they were to participate in politics: these folks “nearly all sle[pt] upon
their arms at night, and carr[ied] concealed weapons during the day.” It
related that at the end of the Civil War, there had been an “outpouring of
discussion of the [right to keep and bear arms] in Congress and in public
discourse, as people debated whether and how to secure constitutional rights
for newly free slaves.” As I argue in the Foreword, “[t]he opinion can be read
to argue that the reason for this ‘outpouring of discussion’ is that the public
back then understood, as the majority wisely understood today, that black
people need guns to be truly free and equal in America.”
In this way, Bruen deploys
race in a way that locates the Court as one that is invested in black people’s
wellbeing. Positioned as such, those who would try to prevent black people from
possessing firearms—like New York State and its restrictive licensing regime,
as well as other liberal proponents of gun control measures—figure as the
parties who are responsible for black people’s subordination. The Democratic
Party becomes the biggest threat that black people face—its policy goals a
program of racial oppression. Simultaneously, the Republican Party, and the
Court that does its bidding, become the antiracists.
The Dobbs majority opinion
contains similar rhetorical moves, with the Court deploying race, albeit more subtly,
to add legitimacy to its preferred outcome. The most telling indication that
the Court aims to frame its decision to overturn Roe as one that is in
the service of racial justice is the majority opinion’s approving citation of
Justice Thomas’s concurring opinion in Box v. Planned Parenthood.
Thomas’s opinion in Box, which proposes that the higher rates of
abortion among black people today provide demonstrable proof that abortion is a
technique of black genocide, ignores the myriad reasons behind black people’s more
frequent turn to abortion care—reasons that sound in poverty, lack of access to
contraception and reproductive healthcare, and interpersonal violence. Thomas’s
opinion completely ignores the structural vulnerability that has left black
people with significantly higher rates of abortion than their nonblack
counterparts. Instead, in Justice Thomas’s rendering, those rates evidence a
genocidal plot to decimate the black race. It is as simple as that. If abortion
rights and access have been used as tools to annihilate black people, then the
criminalization of abortion, which the reversal of Roe would permit, is in
the service of black health and wellbeing.
Justice Alito’s majority opinion in
Dobbs continues Justice Thomas’s figuration of the relationship between race
and abortion. In a footnote, the opinion observes that several amicus briefs have
argued that “some such supporters [of abortion rights] have been motivated by a
desire to suppress the size of the African-American population.” The majority
opinion responds to this claim by stating, “And it is beyond dispute that Roe
has had that demographic effect. A highly disproportionate percentage of
aborted fetuses are Black.” As I write in the Foreword, “In refusing to discuss
the myriad reasons for black people’s higher abortion rates — even though that
information was available to the Court in other amicus briefs — the majority
opinion implicitly endorsed the ‘abortion is black genocide’ argument. It
implied that the argument is worth mentioning as valid. It implied that the
argument is not worth dismissing out of hand as propaganda.”
Further, included in the majority opinion’s
partial itemization of legitimate interests that the reversal of Roe allows
states to pursue when passing abortion restrictions and regulations is the
governmental interest in “prevent[ing] discrimination on the basis of race.” Here,
the majority proposes that it is legitimate for the state to believe that black
people’s higher abortion rates are a function of eugenicists and agents of
genocide duping black people into abortion care. As I write in the Foreword,
“Dobbs establishes that far from being a fantasy of conservative ideologues or
a narrative that political actors tell to try to secure black people’s
opposition to abortion, it is legitimate to think that black people have higher
rates of abortion in part because genocidal actors are out to get them.” In
this way, Dobbs proposes that the reversal of Roe is in black
people’s best interest. The Roberts Court—and the Republican Party whose
platform the Court works to install as the law of the land—figure as the true
champions of racial justice.
What does this allow us to predict about the decisions that the Court will issue in future Terms? It permits us to foresee that the Court will not be satisfied with staying silent on race when it is possible to do so. (Again, the Court could have reached its holdings in Bruen and Dobbs without saying a word about race and racism.) Instead, we can predict that the Court will frame its decisions—whether they concern First Amendment rights or the administrative state—as in furtherance of racial equality and racial justice. But, this may be unsurprising. The Court has all but abandoned the pretense that it is an apolitical body—guided by logic and reason, bound by precedent, above the fray of politics. We might have expected that it would come to be concerned with the political acceptability of its decisions.
Khiara M. Bridges is a professor of law at UC Berkeley
School of Law. Her email address is khiara.m.bridges@berkeley.edu.