Fighting Their Court From Below

Try to gain some insight into the size of the court organism and how, to some extent, it remains in a state of suspension, and that even if you alter something in one place you’ll draw the ground out from under your feet and might fall—whereas if an enormous organism like the court is disrupted in any one place, it finds it easy to provide a substitute for itself somewhere else.

Franz Kafka, The Trial 


At the Monday August 1st, Atlanta City Council meeting, Atlanta DSA members joined reproductive justice organizations to defend the right to abortion and the creation of a city abortion fund.

The Supreme Court’s last term ended with a batch of extreme right-wing opinions. The Roberts Court has lurched sharply to the right, but the Supreme Court’s fidelity to conservative elites is nothing new. Of all the counter-majoritarian mechanisms in our constitutional system (Senate, Electoral College, etc.), none has protected the minority of the opulent as reliably as the Supreme Court has. The only way to protect our rights is through mass mobilization outside of the legal system. 

With some success, American radicals have often tried to reform constitutional law through formal procedures. Radical influence on the Constitution peaked in the 1860s, when abolitionist visionaries ratified a trilogy of constitutional amendments aimed at dismantling the hegemony of the Slave Power in the South. These provisions promised to abolish forced labor and create the world’s premiere multiracial democracy. But the Supreme Court almost immediately began narrowing the reach of these new constitutional commands. After the 1890s, conservative justices became even more ambitious, using the 14th Amendment to stop progressive reforms. In the text of a promise that freed slaves would enjoy equal citizenship and legal recourse, the far-right Court of the early 1900s saw a broad freedom of contract that superseded labor regulations. Instead of protecting the most vulnerable American workers, the 14th Amendment became a constitutional bar against efforts to improve workplace conditions.   

So, by 1912, the Socialist Party understood how dangerous the Court was. The Party’s platform called for the “abolition of the power usurped by the Supreme Court of the United States to pass upon the constitutionality of the legislation enacted by Congress.” And, for that matter: “Abolition of all federal district courts and the United States circuit court of appeals” and the “immediate curbing of the power of the courts to issue injunctions.” The Socialist Party advanced these measures because the working class was “exposed to poisonous conditions,” which were “walled around with court decisions, injunctions and unjust laws [ . . . ] for the benefit of the controlling oligarchy of wealth.” 

The 1912 proposals seem unthinkable now, when politicians gasp at the mere mention of court reform. But the platform as a whole was wildly successful in the long run. It demanded a weekend, an 8-hour workday, and a minimum wage. It demanded a ban on child labor and “a non-contributary system of old age pensions.” It demanded a progressive income tax, universal suffrage, and the creation of a Department of Labor and a Department of Education. Socialists then built on those gains to urge further expansions of civil and economic rights. The socialist ideals of 1912 were fast becoming the federal policies of the 1960s. What happened to that stuff about weakening federal courts?

The simple answer is that some judges had learned to use their powers for good. Instead of striking down labor laws, courts struck down laws that harmed unions and workers. Instead of issuing injunctions against labor actions, many courts used injunctions to facilitate racial integration. In the 1960s and early 1970s, working people gained a wide array of unfamiliar constitutional rights — including the right to abort an unwanted pregnancy.

Then, for almost 50 years, the Supreme Court chipped away at those gains. Gradually, the landmark cases of the 1960s and early 1970s became almost meaningless as the Court fashioned exceptions and loopholes. All the while, the Court was lauded for its commitment to neutrally applying precedent, because Roe and Casey were still off-limits. The abortion issue was settled, and it became unfashionable for liberals to ridicule the Court. 

For decades, progressive lawyers have invested unthinkable resources in the preservation of Roe v. Wade — and, for that matter, judicial review. Even now, liberal lawyers feel compelled to explain why they oppose court-packing and other reforms. The progressive imagination has been confined to the preservation of Nixon-era legal precedents. Now, it should be clearer than ever how little the Supreme Court’s caselaw can offer our movement. 

Dobbs certainly imperils gay rights, contraception, and other privacy rights that have grown out of the 14th Amendment. But the demise of Roe and Casey signals a much larger attack on the most humane elements of American law. Elite lawyers know how to get rid of precedents without explicitly overruling any cases; it would be easy for this Court to impede abortions without provoking so much backlash. So, I think it’s important to ask: Why was Roe overruled? Was its nominal survival so painful for these justices that they had to toss it out? Was it keeping them up at night? Did they feel bound by some kind of promise they had made to powerful conservatives? 

Those explanations don’t make any sense for people with life tenure. I think the only sensible rationale is that these justices want the conservative legal movement to proceed to other issues. They want the pro-life millionaires and activists to divert their energy and resources to other things. And when those massive forces move on, nothing will be safe. The demise of Roe v. Wade is meant to encourage broader legal challenges to the political order that took hold after the New Deal. Of course, it would be wise to expand the Court, hold a constitutional convention, and pass a federal reproductive rights law. But we should be prepared to reconceptualize the law’s role in our lives. What if judges refuse to acknowledge our rights? What if our state legislators won’t either? Nor our members of Congress? Can we enforce our own rights? 

Here in Georgia, abortion is now severely restricted. But pregnant people should fight for the right to choose, even while the law is wrong. Our legal system is becoming more selective in its commitments to our rights. Now it falls to us to protect reproductive rights without the comforts of constitutional guardrails. As beneficial as Roe has been, it was never anything revolutionary: it protected a right to purchase a service, beyond the reach of majoritarian government. Reproductive justice can be reimagined on the basis of workers’ liberation and the fight for universal health care, rather than privacy and alienation. Our aspirations can’t be confined to the Nixon-era musings of legal elites. 

While we still don’t know how the enforcement of Georgia’s new restrictive measures will play out, it’s on us educate ourselves and our communities on how to safely self-manage abortions, protect ourselves from surveillance and criminalization, and continue supporting the clinics and abortion funds providing reproductive care. It’s also on us to fight back; we can’t accept these restrictive measures imposed on us by the extremist right-wing as the new normal. Where we can, we must pressure local governments to decriminalize abortion, fund abortion care and travel, and educate the community on their rights. We must fight back against right-wing minoritarian rule and continue pushing for universal health care and bodily autonomy for women, non-binary, and trans folks.

 This Monday – following a coordinated push from reproductive justice orgs like Amplify Georgia and Feminist Women’s Health Center, and on-the-ground community outreach by Atlanta DSA – the Atlanta City Council passed a $300,000 abortion fund resolution. This fund will be allocated towards Access Reproductive Care (ARC) Southeast, a nonprofit which funds abortion care and out-of-state travel for those without the means to pay. This unprecedented resolution marks the first of many likely to come nationwide, and represents one small way we can begin to fight back to defend our rights. 

With this small victory under our belt, we must push forward, and continue to work in coalition with others defending reproductive autonomy. With DSA chapters all over the country coordinating their own local campaigns to expand abortion access and curb criminalization, there is plenty of opportunity to push for similar resolutions to municipalities and counties across Metro-Atlanta. So what’s next? Become a part of the fightjoin DSA and participate in one of our upcoming abortion rights actions. Alone, we are helpless in the face of these right-wing attacks – but together, we can and will win health care and democracy for all.