TThe fact that he had leaked a draft of a Supreme Court opinion resolving Roe V. Wade was shocking. However, it should have not been surprising given the nature of the draft. Since 1973 Roe has been an ardent goal for the Republican party. This was reiterated in the Republican party’s presidential platform in each election. Roe’s demise should have been anticipated with a strong Republican majority of 6-3 in the Court.
But people were still surprised. Roe was able to survive other Republican majorities, which is part of why people were surprised. Planned Parenthood, which confirmed the central holdings of Roe in 1992 was decided by an eight-member Court. Roe Court was dominated by a Republican 5-4 majority.
Today’s world is very different from it was thirty or fifty years ago. The preferences of the President are more consistent than ever for Justices. 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 has a long and rich past, but the Supreme Court is able to take away rights. After the Reconstruction Amendments, which were the biggest expansion in constitutional rights, this is perhaps the best example.
The Reconstruction Congress, which was established after the Civil War to transform American society with three important amendments that would create a new nation. Slavery was banned by the Thirteenth Amendment. The Fourteenth Amendment gave birthright citizenship to all formerly enslaved persons. These new citizens were granted equal rights and liberty to guard them from being oppressed by the States. The Bill of Rights protected individuals only against the federal government, just like the majority of 1787 Constitution. Fifteenth Amendment prohibits racial discrimination in regard to voting rights. Each of the amendments granted Congress the power to make laws to enforce them. The two men sought together to create America a multiracial democracy.
It worked—for a while. Integrated schools and police officers were operated by the reconstructed south governments. The South’s reformed divorce laws were followed by social services that could not have been provided before.
However, not all were willing to embrace the new society. Some whites felt resentful that the government was supporting Blacks. It made them feel like insiders. They were sceptical of Blacks sharing their services, as they considered them equals. But they refused to submit violently.
To keep them on track, the U.S. Army had to step in. Eventually the South lost its will to be a military occupation. Federal troops took over their oversight in order to resolve the dispute of the election of 1876. Redemption followed. Many violent coups by paramilitary white supremacist organizations led to the Whites regaining control. The rights guaranteed by the Reconstruction Amendments were quickly lost.
However, the Supreme Court was not helpful. 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.) The Court was confronted by massive, systemic violations to the Fifteenth Amendment. “[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.”
That was the end of it all. Nearly a century later, Civil Rights fought for the fulfillment of the Reconstruction promises. Congress passed more anti-discrimination legislation and the Voting Rights Act in 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.
Things changed dramatically after Ronald Reagan’s election in 1980. 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.
Federalism is the preference for state power in constitutional law. This era of constitutional law was often called New Federalism by constitutional scholars. People rarely favor state authority without knowing what it will be used for. Recent years have shown that the Supreme Court has been more open to states on certain issues. Congress has the ability to enact broad regulations of the economy. The Affordable Care act was upheld by Supreme Court. 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’s about undoing all the achievements made by equality movements in the last century and half, since the close 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.)
Even the Court’s current phrases and decisions echo the past. 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. It is a violation of the natural order that equality advocates are trying to achieve. This is the purpose of affirmative action’s attack, as well as Roe’s decision to overturn it. They want to go back to 1787, not 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. Now I’m here, and that question mark will disappear. So is the fig leaf of states’ rights. We are now living in the Second Redemption, a constitutional era.
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