An Age of Repoliticization
Justice Alito wants a Supreme Court set apart from the mudslinging of American politics. How’s that going?
Today marks the first anniversary of Chief Justice John Roberts’s direction of Marshal Gail Curley to investigate the staff of the Supreme Court of the United States. Last year yesterday, on May 2, 2022, Politico published a draft opinion of the Dobbs majority decision that would reverse 1973’s Roe. The leak was the worst violation of norms in the institution’s history.
The investigation of the leak “has to date been unable to identify a person responsible by a preponderance of the evidence,” according to a statement from the Court released in January. In the interim between the leak and then, pro-abortion zealots engaged in blatant intimidation tactics and terrorism, and the conservative majority of justices overturned Roe anyway. There was an assassination attempt made on Justice Brett Kavanaugh—who we should recall had already been slandered as a rapist to prevent this very decision—and there was and continues to be widespread discussion of the Supreme Court as an “illegitimate” institution.
All this presents a striking repersonalization and repoliticization of a branch of government and feature of American republicanism long idealized as above partisanship or the ugly realities of electoral politics. That trend has brought hostile media scrutiny to Justice Clarence Thomas; it is evident also in an unusually frank interview with Justice Samuel Alito, the author of the Dobbs decision, in the Wall Street Journal. At least one conservative justice, it seems, has begun to accept that they do not have a choice in the matter—the Court and the persons who make it up have been forced into the sphere of public opinion.
Alito told the Journal that he thinks he knows who the leaker was, but agrees with the marshal that there is insufficient evidence to name the person or persons. His primary concern seems to be the standing of the Court itself, a plea for a return to its normal function as something sacred, set apart from all the mudslinging of American politics. “It’s one thing to say the court is wrong; it’s another thing to say it’s an illegitimate institution,” Alito said. “You could say the same thing about Congress and the president…. When you say that they’re illegitimate, any of the three branches of government, you’re really striking at something that’s essential to self-government.”
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With all due respect to the justice, who shows in the clarity and carefulness of his remarks why he sits on the Supreme Court, he appears to be under a grave misapprehension about where we find ourselves in the march of progress. Alito has done his country a great service by rightly demonstrating that Roe and Casey are bad decisions, “egregiously wrong,” as he put it to the WSJ. But that judgment is made within the frame of a constitutional order that derives its public legitimacy from its function as a tool, a neutral technology, for arriving at certain ends. The ends are contested, but the legal structure and procedures are taken as normative, a shared mechanical device for the playing of a game called politics. Outrage at the Dobbs draft leak, at protests outside justices’ homes, at the questioning of the Court’s status as legitimate—that is to say, as neutral, or at least depoliticized—comes from these norms.
But liberalism has left this mechanistic legal account of itself behind precisely in embracing the act under question. Abortion-on-demand incorporates a regrounding of political legitimacy, for—crowning the sexual revolution enabled by chemical birth control—it seems to promise a new account of justice. The scales of equality before the law are replaced with bio-technological equity; no longer will men and women face different consequences for the same choice. A woman’s “right to choose” and a bit of medical murder make plausible the claims that the differences between human beings can be eliminated, that divergences in outcome must be the result of active discrimination, and, eventually, that a woman need not be a woman, nor a man a man.
The era of biopolitics extends the principle of neutrality that had undergirded the liberal political order from the law to human beings as human beings. Modernity had presented man and woman first as natural creatures, with natural differences and natural ends, and sought in a new political science—legal technology—neutrality to their ends supernatural. With industrialization it then extended that neutrality to the social order, reducing men and women to homo economicus, and then with total war reduced peoples to “humanity.” The abortion regime completed that logic, and in doing so supplanted the proceduralism that produced and sustained institutions like the U.S. Supreme Court. In the sacrifice of an infant boy or girl, politics has again become very personal, indeed.