“The theocratic movement to advance religiously based governance—the antithesis of genuine religious freedom—has installed as the law of the land the essentially unreasoned position advanced in Dobbs,” writes Laurence H. Tribe in the Review’s September 22 issue. His is a thorough indictment of the illogic, legal inconsistencies, and arrogance of the Supreme Court’s ruling to overturn Roe v. Wade. “This is unlikely,” he warns, “to be the final step on the treacherous path the Court has chosen.”
Tribe has been at the forefront of American legal scholarship for more than fifty years. In 1973, he wrote for the Harvard Law Review the principal legal defense of the Court’s decision in Roe. At Harvard Law School, he taught a generation of the nation’s major legal minds, including Barack Obama, Elena Kagan, Merrick Garland, and John Roberts. Now a professor emeritus, Tribe is still one of the nation’s busiest legal observers and commentators.
This week, we corresponded about the future of abortion rights in the United States, the influence of the Federalist Society, and the four-color theorem.
Daniel Drake: In “Deconstructing Dobbs,” you argue that Dobbs v. Jackson Women’s Health Organization is a legally unprecedented decision—that it does not build on any particularly rigorous set of legal theories or precedents—but you also note that it seems to rise out of a recent tradition of “decisions systematically eroding the…‘wall’ of separation between church and state.” You cite the decision in Kennedy v. Bremerton School District, but did other decisions or legal tendencies from the last few years telegraph how the majority came to overturn Roe?
Laurence Tribe: Tendencies from the last few years, more political than legal, certainly telegraphed to observers like me what the five justices led by Alito were going to do, even as Chief Justice Roberts kept resisting—in every area except voting rights and racial justice—decisions on grounds broader than strictly necessary because they would imperil the Court’s legitimacy. When the Supreme Court first agreed to hear the challenge to Mississippi’s fifteen-week abortion ban, the only question presented by the parties for review was a quite narrow one—whether all pre-viability prohibitions on elective abortions are unconstitutional—but the Court itself, indulging a practice that has become increasingly common, specifically directed the litigants to brief the broader question of whether Roe should be overruled in its entirety.
As soon as Amy Coney Barrett was confirmed, after the confirmations of Neil Gorsuch and Brett Kavanaugh, the fate of Roe, and of the many broad constitutional principles that converged in that decision, was effectively sealed—not because of any change in society or the culture or any shift in legal doctrine, but because of an increasingly evident tendency on the part of the justices to do whatever they could get away with as a majority. The legal and philosophical principles that converged in Roe v. Wade, and emanated from it in the years since, included principles of gender equality, personal privacy, bodily autonomy, and the separation of church and state. All of those principles came under attack from rightward-leaning jurists in ways that, while they did not legally support the overruling of Roe, made it clear that the underlying agendas of the judges in question would demand that Roe be ripped from the fabric of constitutional law.
When Court observers say in so many words that they saw Dobbs coming, they often invoke the Federalist Society and the work it has put into bringing the Court to this decision. From what I understand, the Federalist Society is perhaps not so interested in eroding the Establishment Clause, so what might their horse be in this race?
The Federalist Society orchestrated the campaign, for sure. The role of evangelical Christians, including evangelical Catholics, in the process of changing the composition of the judiciary was more opportunistic than logically driven. To win elections, the Reagan Republicans and those who came after Reagan found it extremely useful to appeal to evangelicals and to bring them together with those who championed “states’ rights”—and the racist connotations that slogan still carried for many—and a unitary executive, which ultimately meant the erosion, if not full dismantling, of the administrative state. The most convenient way to woo the evangelical voting bloc was to campaign to return religion to the public square and to treat freedom of religion as a sword and not just a shield (endorsing such policies as school prayer and religious exemptions from neutral laws) and to overrule the Supreme Court decision that had become emblematic of an anti-Catholic, and to some extent anti-Christian, position—Roe v. Wade.
Is there a coherent legal theory behind their decades-long push to overturn Roe, or what might they be working toward?
I very much doubt there is anything that could plausibly be called a “coherent legal theory.” What there has been is a politically convenient combination of techniques that sound legal and methodologies that borrow legal terminology to support a political (and increasingly partisan) program. This is pursued in the name of restoring fidelity to the Constitution’s original meaning, but it has the effect of making ours a less democratic, less inclusive, less gender-neutral, more homophobic, more misogynistic, more authoritarian, and more corporate-friendly and wealth-empowering polity. (I could try to put that in less provocative and more anodyne terms, but that would dilute my meaning in the pursuit of broader credibility, something I have increasingly little interest in now that I feel ever freer to speak my mind without worrying about political fallout.)
In your essay you argue, quoting John Rawls, that a woman’s right over her bodily autonomy can only be overridden by “countervailing social interests grounded…in secular ‘ways of reasoning acceptable to all’ and resting on ‘a common knowledge and understanding of the world.’” What might such social interests be?
One such interest might be to combat invidious discrimination against people with disabilities of various kinds by restricting abortions that are motivated by eugenic considerations—abortions of fetuses predicted to develop into less than “perfect” babies by prevailing social standards or, worse still, by the standards of those atop the current class hierarchy.
What steps do you think legal activists or pro-abortion activists can take to reclaim their rights in light of Dobbs? You mention expanding the Court to thirteen justices. Are there other reforms you have considered in light of the dangerous turn the Court has taken?
The most important, immediate step is to do what the citizens of Kansas did, seeking by popular referenda or otherwise to make state constitutions protect bodily integrity and the rights of women and sexual minorities. Next will be the effort to enact a national legislative codification of Roe v. Wade and to do all we can to protect such legislation from invalidation by the right-wing Supreme Court. Only then would I turn to such steeply uphill measures as expanding the Court from its current size of nine to the more reasonable size of thirteen, essentially “unpacking” it without disturbing the positions of the justices who were appointed by tactics of dubious legitimacy.
In an interview with The New Yorker in May, you said that you draw the line at “defy[ing] particular decisions of the Court”—that rule of law is a necessary standard to maintain, above other considerations. But you elaborate that there comes a point where the danger posed by mass disobedience and the illegitimacy of the Court converges with the danger posed by an authoritarian Court. What conditions would indicate to you that that point has been reached, or is approaching?
I can’t currently envision any conditions that would lead me to support outright defiance of judicial decrees so long as we have a functioning government that is short of a full-blown dictatorship and have not descended into a Hobbesian state of utter chaos. In Mussolini’s Italy or Hitler’s Germany, defying court orders would surely have been morally justifiable and indeed morally required. But, despite the outrageous calls by Donald Trump and some of his crazed supporters for violence in response to his seemingly impending indictment, I don’t think we’re anywhere near a situation in which that kind of lawlessness might be theoretically justifiable. I hope never to see such a situation in this country and don’t presently imagine I will.
Other than Moore v. Harper, what other significant cases do you see coming in the next term?
There are many, but I would single out Merrill v. Milligan, a case from Alabama in which the Supreme Court will have the majority it has been moving toward to essentially finish the project of gutting the 1965 Voting Rights Act. This interview probably isn’t a good place for me to elaborate, but I would point your readers toward a wonderful article by Linda Greenhouse in The Atlantic for October 2022, “John Roberts’s Long Game,” in which she argues that the Chief Justice’s position, “essentially, is that any effort to eradicate racial discrimination, is itself racial discrimination,” a Kafkaesque distortion of the Reconstruction Amendments if ever there was one.
Have you kept up with mathematics, either seriously or as an avocation, since your college days? What kind of math interested or continues to interest you?
I’ve given up any effort to keep up with the astonishingly rapid evolution of abstract mathematics and mathematical logic, with whole new fields of mathematics emerging from (sometimes impenetrable to me) proofs of previously unproven conjectures like Andrew Wiles’s remarkable but not especially elegant proof of Fermat’s last theorem, or Kenneth Appel’s and Wolfgang Haken’s amazing proof of the almost as famous four-color theorem, but I remain interested in, and intrigued to the point of awe by, aspects of algebraic topology and algebraic number theory, as well as modal logic and other subsets of meta-mathematics.
In a future life, I would love to try pursuing mathematics, and perhaps cosmology and some aspects of theoretical physics, rather than law. It’s just not possible in one lifetime to study it all. Another thing I would love to delve into more deeply is American history, and indeed the history of the world. What a magnificent planet this is! What an astonishing galaxy! What an awe-inspiring universe!