What the Supreme Court Leak Means
Advocates for abortion see this political moment as an emergency. The real fight has only just begun.
As soon as Politico published Justice Samuel Alito’s draft opinion overturning Roe v. Wade, observers began to ask what outcome the leaker hoped to achieve. Did he hope to prompt a backlash that would prompt the Court to change course and uphold Roe? To energize Democrats before the midterms? To prompt the Senate to discard the filibuster and enact a federal law upholding abortion?
There is no need to suppose that the leaker had any aim in mind beyond violating, in the most flagrant manner possible, the Court’s quasi-sacred aura of authority. Doing so sends a powerful signal to other progressives. It indicates that this is an emergency situation in which old rules do not hold. It encourages others to proceed by any means necessary.
Rollback of the abortion regime will be treated like the election of Donald Trump: as a presumptively illegal and illegitimate act, an intolerable affront to the power of the professional-managerial class. Just as the Russiagate scheme sought to end Trump’s presidency before it began, abortion supporters will overstep boundaries and violate norms in order to secure their desired end. Ian Millhiser, a senior correspondent for Vox, tweeted, “Shout out to whoever the hero was within the Supreme Court who said ‘f–k it! Let’s burn this place down.’”
Aaron Sibarium of the Washington Free Beacon has extensively documented the growing radicalism of students at America’s top law schools. They have been trained in forms of activism that place desired outcome over due process, and inculcate contempt for legal procedures and professional norms. As they graduate and take roles at law firms, government bureaus, and high courts, their attitudes will remake our legal system. Their cynicism will spread—not only on the left, but on the right, which will not fail to notice how the system is changing.
One response to this state of affairs is to insist on the rule of law and due process to the exclusion of all else, in hopes that our society can be constituted on the basis of pure neutrality. This is naive. Legal procedures are never perfectly neutral. They are always shaped by the politics of those who wield them, and they are always arranged toward certain ends. That does not make them worthless. It simply means that they become hard to sustain in the face of grave social conflict. In every individual case, justice matters. So does procedural integrity. But due process and rule of law cannot substitute for the shared ends on which social peace depends.
Of course, reaching agreement on shared ends looks all but impossible. America is deeply divided by a culture war that is also a class war. As Christopher Lasch observed, abortion is “first and foremost a class issue.” It condenses far-ranging class differences into a single potent issue. Of Americans with an advanced degree, 72 percent regard abortion as “morally acceptable,” while only 33 percent of Americans with a high school diploma or less agree.
Members of the professional-managerial class draw their power from salaried employment and their possession of educational credentials. These things are also the source of their identity, the measure of their self-worth. Members of this class do not generally seek abortions, as they manage their reproduction in other ways, but they regard abortion as the indispensable backstop for and symbol of an order in which they never need sacrifice the education and employment on which their status depends. That is why they will go to great lengths to fight any reversal of the abortion regime.
Abortion opponents should pay close attention to the class realities that surround the abortion divide. If Roe is overturned, as now seems overwhelmingly likely, it will mark a victory for the conservative legal movement and Federalist Society, who many doubted were capable of such a feat. Yet it will only be the beginning of a longer process, involving the restriction of abortion at the state level and a push to have the unborn child’s constitutional right to life recognized nationally. Doing this will require discarding the libertarian conceits now prominent in the conservative legal movement. So long as the professional-managerial class dominates our political system, serious restrictions on abortion will be exceedingly difficult to achieve. Diminishing the power of that class is the only way to secure a future in which the rights of the unborn are reliably protected.