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The Court’s staunchest advocates of unchecked federal power now complain that the majority placed no limits on Congress’s right to regulate abortion.
A mericans searching for evidence that the Supreme Court’s illegitimate half century of interference in American abortion policy has had an incorrigibly corrupting effect on the integrity and coherence of our judicial system need look no further than this line from the dissent in Dobbs, which, in a crowded field of contributions, jumped out at me for the sheer extravagance of its cynicism:
Most threatening of all, no language in today’s decision stops the Federal Government from prohibiting abortions nationwide, once again from the moment of conception and without exceptions for rape or incest.
Can the dissenters be serious?
Exactly what sort of “language in today’s decision” would Justices Breyer, Sotomayor, and Kagan have liked to see? What could have occasioned the majority’s adding such language? And how could it have been included without setting a broader constitutional precedent that, in any other circumstance, the trio would have strenuously opposed? I understand that the dissenters are worried about the practical effects of overturning Roe. But if the Dobbs majority had, indeed, decided preemptively that the federal government was barred from “prohibiting abortions nationwide,” it would have undone decades of progressive-led expansions of the commerce clause and the necessary-and-proper clause at a single stroke, and made the stare decisis complaints that have been advanced by the dissenters look like a walk in the park. Is that really what they wanted?
The dissenters are, of course, correct to deduce that if there is no right to abortion in the Constitution — which was the only holding in Dobbs — then the federal government is not explicitly prohibited from regulating or banning abortion. But that a given federal action is not explicitly prohibited does not, under our constitutional order, mean that the federal government necessarily enjoys the power to take that action in the first place. As it is written, the Constitution grants the federal government only a handful of enumerated powers, which are limited yet further by the Bill of Rights. In Federalist No. 45, James Madison neatly explained the model:
The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.
Unfortunately, this presumption has eroded over time, to the point at which the federal government now presumes almost unlimited power, and accepts checks on its authority only via the Bill of Rights, the equal-protection clause, or whatever a transient majority on the Court contends might be contained within the free-candy machine that is the “substantive due process” doctrine. Naturally, that erosion did not happen on its own: It was achieved over time through the deliberate and sustained efforts not of the Federalist Society, but of the Democratic Party and the judges it has repeatedly put on the bench.
Which is to say that, if, in a few years’ time, Congress tries either to ban or to preempt abortion on a national basis, it will not be relying upon a conservative case for federal power, but on a series of enumerated-powers-doctrine–exploding precedents that began during the New Deal, and that have been defended ruthlessly since that time by the institutional American Left. Insofar as they have upheld or expanded those precedents whenever possible, Breyer, Sotomayor, and Kagan are a key part of that Left. That, in the course of a relentless broadside in favor of stare decisis, those judges had the gall to complain that the majority in Dobbs enclosed “no language” that circumscribes the unconfined federal role that they have spent their entire careers sustaining is nothing short of astonishing.
Back in 2005, the Supreme Court had occasion to reconsider the holding in Wickard v. Filburn, a 1942 case that held that the federal government had the power to regulate how much wheat an individual could grow on his own land for his own consumption. Even in such cases as an “appellee’s activity be local and though it may not be regarded as commerce,” the Court had ruled in Wickard, “it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as ‘direct’ or ‘indirect.’”
On paper, the plaintiff in the vehicle for reconsidering that ruling, Gonzales v. Raich, was a far more sympathetic figure to progressives than the plaintiff in Wickard, Roscoe Filburn. She was a Californian named Angel Raich, and she had been growing cannabis at home, for personal medicinal consumption. But none of that mattered: Terrified by the prospect of weakening the federal government in other areas, and unable to conceive of a comprehensible way to distinguish between commercial and non-commercial activities, a majority on the Court — including Justice Breyer — upheld Wickard, and confirmed in the process that, even in such cases as the “intrastate, noncommercial cultivation and possession of cannabis for personal medical purposes as recommended by a patient’s physician pursuant to valid California state law” is at stake, the federal government is empowered to intervene on the grounds that the superintendence of Raich’s behavior represents “an essential part of the larger regulatory scheme.”
Dissenting, Justice Clarence Thomas wrote that:
This [decision] makes a mockery of Madison’s assurance to the people of New York that the “powers delegated” to the Federal Government are “few and defined,” while those of the States are “numerous and indefinite.”
There is no doubt that, if asked again, Thomas would reiterate this view. And there is no doubt that, if he did so from within a majority in a different case, the dissenters in Dobbs — the same people who now complain that Dobbs does not contain a broad curtailment of federal authority to regulate abortion post-Roe — would immediately cry foul. Pushed to despair by the way the Court’s abortion jurisprudence had corrupted so many of its other endeavors, Justice Scalia often talked about the “abortion distortion” — and this is a perfect example of it. Nothing that the Court has examined in the 80 years since Wickard has been sufficient to convince its living constitutionalists that their unchecked conception of the commerce clause is “threatening,” but abortion hits the docket in a way they dislike, and, all of a sudden, they are aflutter with the spirit of 1789.
How grotesque.