Alternative Futures

The Roberts Court, April 23, 2021 Seated from left to right: Justices Samuel A. Alito, Jr. and Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer and Sonia Sotomayor Standing from left to right: Justices Brett M. Kavanaugh, Elena Kagan, Neil M. Gorsuch, and Amy Coney Barrett. Photograph by Fred Schilling, Collection of the Supreme Court of the United States
News, not new though

I woke up this morning, turned over to pick up my phone and immediately opened the New York Times to this. I knew exactly what I was going to see, having spent the last week trawling through a bunch of websites–SCOTUSblog, POLITICO, and a ragtag collection of blogs and mini-blogs–for hints of when to expect an opinion in Dobbs. Reading between the lines, it was patently clear that today was going to be the day. I knew it, and said as much to anyone who would listen(not that it counts for much); a bunch of others knew it too: the (un)joke was that the Court would deliver the ruling Friday just in time for the Court’s Justices to jet out of DC and wait out the heat that was sure to come(it’s here, but surely not enough).

I can’t put my finger on what about the now-validated truth of this absurd logistical projection feels so doltish for the Supreme Court to actually orchestrate–It’s almost like they are begging not to be taken seriously. Maybe it is that it affirms a conception of the Court as a belligerent centre in America’s body politic–constructed precisely for moments like this, to elevate and legitimize undemocratic impulses that wouldn’t survive representative channels. I’ve spent hours hearing college professors for whom I have nothing but respect explain as much in seeking to rationalize the Court’s endurance as a minuscule council with power limited only by the self-control it’s members exercise (or in this case, fail to) under the veneer of legalese: stare decisis this, originalism that. All words that mean nothing to a citizenry that lives, and has to continue to live through, a landscape of rights and denials much more concrete than 213 pages of wordplay.

The Legal theater

Somehow the theatrics woven into the ruling struck me today, in a way that I couldn’t predict yesterday. Alito’s arrogance in demolishing a right held for a half-decade shines strong through what of it I’ve been able to get through so far. It makes for quick reading, given that I’ve had a month to read a not-so-different version of it. He didn’t take the time to reflect on the brash tone many noticed in his opinion. That too, adds to the theatrics for me: now it is an opinion, because we have a link that leads to the Supreme Court website instead of a POLITICO page. Thomas has been read to leave suggestions of more to come, in his assertion that this holding should bring to question other rights I have lived imagining to be central to American life: same-sex marriage, access to contraception. It was almost as if the Court decided to pull out all the stops–as though they were trying to send their most direct and unambiguous message to anyone who might be thinking about supporting or employing a progressive reproductive rights agenda: Don’t, because we’re not going to let you. All this while the Court is itself sending signals in other directions, with emphasis on a self-congratulatory role for themselves as a conduit and guarantor of equality. All the talk of returning this issue to the consideration of people’s assemblies, to lawmakers, is meant to communicate progress towards a more just world. We must all know this to be an absolute falsehood with legislative bodies that are anything but contemplative.

But inasmuch as I am filled with despair by a series of rulings delivered this week–it is now also, or soon will be, legal to bear arms in the public square across the country(Thomas AGAIN)–I am reminded that it’s certainly not time to surrender. I have to tell myself that this is just a really nuanced way to be kicking off a ‘to do’ list for life. I have no clue what I can do to make the world look more like I would want it–safer, more equal, with a constitution that protects its subjects rather than obscure frameworks–but the decisions handed down this week invigorate me to try and understand how.

I’m unfortunately becoming reconciled to the fact that this day was coming. For a while now I and many others have found ourselves thinking about how to achieve alternative delivery of the rights that Roe v. Wade guaranteed: broad and sweeping access to contraception and abortion care, legal frameworks protecting this access from intrusive private interests manifested in the state, a more aggressively integrative understanding of reproductive health and rights in our society that might substantively address questions of access for all people in all places at all times–at home, at work, at school and so on. I’ve seen the way that other countries have responded to and embraced these sorts of alternatives–and in so doing, have gotten their day in court(without really going). I’ve been reading about it online(obviously), where blogs and hypertext have changed how legal conversation happens to include more people than claimed experts. Yet the fact that all this–a globalized understanding of abortion access as a right intimately tied to privacy and liberty–has done nothing to stop the backwards march concretized today… that fact makes me feel a little different about it, about what needs to happen. I am fearful of what is to come. Angry. I feel motivated to act, to make something happen. Yet I am just as powerless as I was yesterday.

Radical alternatives aren’t so

I’m convinced that, in the landscape we find ourselves in, the option that will lead to success must be something we have not considered yet. I am convinced it is something we have refused to consider. Americans have voted Democrat, and Democrats have time and again failed to consider or understand the urgency of acting to preserve reproductive rights. Party leadership has put the issue on the back burner, time and again. And now that we find a whole swath of liberties threatened they do not hesitate to ask people to vote, fundraise, and use process to make a difference.


People have done exactly this for years! And yet it’s made no difference to how or where we’ve ended up. Sure there’s been a whole host of intermediary confounders–Ginsburg’s refusal to retire, a blocked Obama appointment by a Republican caucus that did not hesitate to make a u-turn and do exactly that which they claimed was improper in the same decade, and much much more. But these are things the political elite should have expected and worked to solve! Figuring this stuff out is their job. People have done theirs by voting and advocating, and politicians have failed to uphold their end of the bargain by instead prioritizing their own set of issues.

So we must imagine alternative pathways to making change. We must become as belligerent as the institutions we are working against. We must start thinking seriously about all the things we pooh-pooh: third party support, Court expansion, term limits, limited Court jurisdiction… whatever looks like it might make a difference! Public conversation spends too much time, I think, trying to be practical. Practically, I couldn’t have imagined this day, and yet here it is. Someone, a radical of sorts, must have thought it possible and worked to make it so. We too, must do the same.

Bold Alternatives

I have nothing to sell here other than a call to imagine. Imagine, and do so boldly. Imagine like one would do when at war for their own life: lawlessly, immediately, with no concern for legal and practical limits. If anything, it is time to fight the legal itself, time to fight the practical. We might instead find ourselves dying a practical death, stripped of liberties one by one. I would hope that whatever reaction you choose as commensurate in this time is as radical as the actions that have led us here. We will otherwise be bringing knives to a literal gunfight. That, I think, is how we all die.

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