In an act of masochism over the weekend, I read the series of short commentaries in the latest New York Review of Books about the impending overturning of Roe v. Wade. Particularly aggravating, as Sherrilyn Ifill, long-time head of the NAACP Legal Defense and Education Fund, pointed out, was Justice Alito's blithe (and obviously insincere) assurance that women have political power, so all the end of Roe would mean is that they could now assert it, once the abortion issue is properly returned to the states.
As Ifill observed, it will be especially difficult for Black women in the South to do so, since most are Democrats living in GOP-controlled states. And it's simply galling for Alito to write a paean to voting in light of the Court's 2013 decision to substantially weaken the 1965 Voting Rights Act (VRA). Ifill recounts how, in the aftermath of that travesty of a ruling, GOP legislatures across the country have passed a steady stream of voter suppression laws. Indeed, as various civil rights groups have brought challenges to such laws, Alito himself has been at the forefront of the Court's rejection of many of those challenges, by imposing newly restrictive tests on whether the VRA itself is an appropriate vehicle for scrutinizing the new voting restrictions.
Leaving the particulars of voting rights and Roe aside, there's a deeper offense in all this. For decades now, conservatives have been lambasting liberal "judicial activism" and insisting that sound and proper legal interpretation requires judicial restraint, fealty to "original intent" and "strict construction" of the hallowed text of the Constitution. To a remarkable degree, this language became commonly accepted parlance for describing competing judicial philosophies, thereby repeating what, in essence, were one side’s political talking points.
“Originalism," “Strict construction" and "legislating from the bench" are meant to connote the propriety of a narrow reading of the constitution, deferring to the presumptive wishes and intentions of the framers themselves. "Judicial activism" – an epithet commonly associated with liberal jurisprudence, cues concerns about liberal judges creating rights where none ought to exist, in the context of an overly permissive culture. From the conservative point of view, notorious in this regard is the right to privacy, the foundation for the Roe decision, a product of the 1965 Griswold decision, in which a right to privacy was inferred from "penumbras formed by emanations…" of the first, fourth and fifth amendments, rather than an explicit mention in the constitution itself. In other words, since the word “privacy” itself doesn’t appear, there can’t be a constitutional right to it.
We have no comparable epithet for judges who show hostility to congressional regulatory authority. But, isn't that judicial activism – an assertion of judicial supremacy over our democratically elected congress, the most directly democratic federal institution we have? Indeed, judicial supremacy over the other branches of government - which *no* serious scholar of the constitution or American history would claim is what the founders wanted - is evermore clearly emerging as the animating doctrine of the current Court majority.
And, what strictly construed rights is the court protecting when it overturns Congress' regulatory authority? The rights of large private interests? If the word "privacy" doesn't appear in the constitution, where does the language supporting the rights of corporations (the basis of the Court’s 2010 Citizens United ruling), which didn't even exist in the legal form that we now apprehend them?
In sum, Originalism and judicial restraint are bunk. Despite their professed fealty to originalism, textualism and judicial restraint, conservative Justices have generally shown no compunction in tossing out laws they don’t like, or reading into them meanings the laws’ authors plainly did not intend. For decades, scholars of the Court have made clear that judges rule largely based on their personal preferences and predilections. That’s not unique to conservatives, of course. Liberals do it, too. But it has been particularly true of the judges who have most insisted they do otherwise. And in a way that has simply not been true for liberal judges, conservative jurists’ legal approach has been packaged within a philosophical brand that their records clearly contradict. Indeed, what’s most predictable about Conservative justices is that they will rule in favor of corporate interests and against the rights of traditionally disfavored groups. In other words, they're just faithfully executing the conservative agenda.
The impending overturning of Roe will be the culmination of a highly successful, multi-pronged political project, stretching back decades, to groom and place reliably right-wing judges in position to upend rights and overturn laws that were intended to make the United States a fairer and more egalitarian society. Originalism, textualism and other shibboleths of conservative judicial rhetoric have nothing to do with that project, except insofar as they helped cloak its obvious political goals.