A Jurisprudence of Doubt
The majority opinion in the 1992 Supreme Court case, Planned Parenthood v. Casey, which reaffirmed Roe v. Wade, begins with this memorable line: “Liberty finds no refuge in a jurisprudence of doubt.”
On my reading, the authors of the opinion—Kennedy, O’Connor, and Souter—were attempting, through a bizarre lyrical anthropomorphization, to convey the idea that an individual’s rights suffer when the laws that are intended to secure and protect them are vague, unclear, or subject to change. In other words, liberty does not flourish—and one cannot really be said to have it—when it is an open question whether they’ll be able to rely on these rights when they need them most.
I’ve been thinking about the idea of a jurisprudence of doubt a lot lately—even before the Supreme Court shamelessly overturned Roe, though clearly this news gave me occasion to think even more about it. Most of my thoughts on this have led me to toward a still-somewhat-inchoate theory of American politics over the next few decades.
The dominant model of American conservative politics—more specifically, of conservative policy change or, more commonly, prevention—seems to rely primarily on actions taken (or not) by two particular groups: Republican state legislatures and the Supreme Court.
(It’s true, obviously, that the U.S. Congress can enact legislation—indeed, it will obviously do so to great effect if (let’s be honest: when) the Republicans win back the House and Senate, alongside the election of President DeSantis in 2024. But conservatives have not much fretted their losses in these bodies for a few reasons. In fact, we’re witnessing perhaps the largest conservative swing in recent memory while the Democrats hold majorities in the House and Senate, with a Democrat in the White House, which helps underscore my point.)
The conservatives’ focus is primarily on gaining supermajorities in red states and loading up the court (by any means necessary) with young, evangelical, Federalist Society loyalists.
Why? Well, first, at the state level, majorities can enact pretty much whatever legislation they want. Judicial precedent is not much of an obstacle: the Supreme Court will inevitably decide in favor of their brethren, citing a tendentious reading of the “literal word” of the Constitution, or flatly ignoring precedent, or demonstrating absolutely no shame at their shocking bias toward Christian evangelism. Republican majorities at the state level are easily maintained as well: among other things, the majority tends to gerrymander, deliberately diluting the effects of blue cities, and generating massively disproportionate conservative majorities that are solidified for decades. Their state courts don’t tend to overturn these new maps; the Supreme Court won’t either. A state can therefore become blue nationally—even if that’s barely more than symbolic—while remaining red locally for a generation (cf. Georgia).
Second, the Federalist Society loyalists who make up the Supreme Court majority will systematically rule in favor of these states’ rights to make essentially whatever laws they want, citing the 10th Amendment and the privilege it affords to states to write their own laws. The foundational cases that ostensibly secured certain rights for all Americans by virtue of unfortunately-too-clever-by-half readings of the Constitution are at risk whenever a state legislature seeks to enact a state law that conflicts with them. And, of course, with lifetime appointments, we are beholden to their views for several decades at least—and, indeed, with the precedents they set, we’re likely to see their views become more and more radical.
Returning for a second to the national level: Yes, Congress can pass legislation, the President can sign it, etc. etc. But there are two major problems. First, a few bafflingly naive (and/or cynical) Senators (Manchin, Sinema, and probably a few Republicans) seem to think the filibuster is an intrinsically valuable feature of the institution of the Senate. This is obviously bananas—not merely as a historical point, but also because, as we know, the Senate massively favors sparsely populated rural states to the enormous disadvantage of larger-population states (North and South Dakota combined represent roughly as many people as reside just in the borough of Manhattan; and yet each Dakota has 2 senators, and the entire state of New York has only 2). Accordingly, the Democrats’ ability to get a supermajority in the Senate is all but impossible. The institution itself favors conservatism as an ideology. As a result, the ability to effect change through federal laws is heavily limited—to say nothing of the inevitable striking-down from SCOTUS of any meaningful legislation that would be passed.
The natural takeaway from all of this is: “Wow, this is going to be bad. We’re stuck with this awful brand of American evangelical conservatism for the rest of our lives. It’s too late to undo it, and the effects of this series of awful events will only continue to get more dire.” Unfortunately, I think all of this is true; however, that’s not quite the point I want to make here.
Rather, I keep coming back to the jurisprudence of doubt idea.
It’s not merely that things are bad. It’s that the approach taken by conservatives in this country is increasingly to uproot some of our most cherished rights—the kinds of rights around which we base some of the most important decisions of our lives. Some of these are rights that people will cite, at least in the abstract, when self-reporting their love of country.
Losing these rights is, of course, incalculably bad. But an underappreciated point, I think, is that even if, say, Obergefell isn’t ultimately overturned, contraception is still legally obtainable, etc., it is nevertheless true—truer, I think, than it had been even just a few years ago—that our ability to look forward and rely upon the security of these rights is now severely limited. In other words, in addition to all the myriad horrific first-order effects that will inevitably follow from overturning Roe, we also have to grapple with the fact that doubt is now broadly cast upon all of our rights. Precedent is no security; the most common-sense reading of the Constitution is no security; living in a liberal state is no security; having a Democrat in the White House is no security.
Americans are losing rights; but we’re losing a lot more than that. We’re losing the security that enshrining rights is supposed to provide. Liberty finds no refuge in a jurisprudence of doubt. We have entered a period where, in addition to being less free by virtue of losing the rights afforded by Roe, we’ve also lost the freedom associated with having a foundational set of principles on which to base our lives.
This is all, in some sense, obvious: laws are overturned all the time, new laws change limiting old ones, etc. But I think, as the justices writing in Casey did, that there are certain laws that are just more impactful than others—ones that have a greater ability to curtail the freedom associated with predictable, secure laws. And I think this is unfortunately where we’re at now, and where we’re likely to go in the coming years.
(Incidentally, if you’re a freedom-loving conservative, you should see this as a major problem! Your ‘team’ is ‘winning’, yes; but the abstract values you base your ideology on, and presumably care most about, are eroding rapidly.)
By the way, a predictable knock-on effect of all of this is that we’re going to see a massive boom in state-specific rights for things that have previously seemed much more foundational (and under the purview of the federal government). It’s already this way with abortion, and has been for a while; but it’s surely going to get more and more complex, affecting things like voting, criminal justice, education, and so on. Of course, “states’ rights” has been a rallying cry of the right for as long as the country has existed, and so this, too, is not all that new. But I think the shift I’ve been speaking of here is going to produce an ever-increasing Balkanization of the country, leaving us with states—perhaps even bordering states—with such dramatically different laws, rights, principles, and values, such that it will be a worthwhile question to ask: in what sense is the U.S. really meaningfully “united” at all?
If I’m being honest, I’m pretty fatalistic about all of this, and I don’t have any advice about how to make things better. In fact, the point I’ve tried to make here will likely only deepen the despair, I’m afraid. So I can’t conclude with any positive upshots. Voting, unfortunately, won’t help. (But not voting can still hurt.) Maybe mutual aid, collective organizing, and other grassroots movements will soften the effects somewhat. But I’m afraid institutional problems cannot be solved or made much better by small-scale collectivizing.
(These recommendations have nothing much to do with the grim picture painted above, and so might seem a bit random or awkward. But whatever.)
I’m sorry, fellow lefties (all of whom hated it), but I really got a lot from this piece about how the situation in San Francisco has gotten so bad. I’ve engaged a fair bit with the criticism of this piece, but I’ve found it all pretty tendentious, straw-manny, and overall just sort of poorly reasoned. Overall, I think this piece highlights for me a lot of the reasons why hardcore leftism is in for a world of hurt if things keep going the way they’ve been going. And I think it highlights some blind spots that people on the left have to contemporary realpolitik.
I watched The Alpinist on a flight recently (it’s also on Netflix) , and I was super impressed. (If you’ve seen Free Solo: it’s like that, but even more bonkers. Alex Honnold literally says “You think what I did was nuts? Get a load of this guy!”) Great story, really captivating. I just don’t get why people do this stuff.
I’ve been really digging this podcast I just discovered called Normal Gossip. The host invites on a friend/fellow podcaster/whoever and tells them a piece of juicy gossip about people neither the guest nor the audience knows. It sounds like a waste of time, maybe, but it’s riveting. The gossip is pretty good, but nothing like criminal or unbelievably scandalous. It is, as the title suggests, normal gossip. It’s fun.
You should know this by now, but Everything Everywhere All At Once was phenomenal. I’m not sure if it’s still playing in theaters, but you should see it at your earliest opportunity. (It’s been a while since my last newsletter, so I apologize for the late rec.)
I’ve been spending an inordinate amount of time lately thinking about lines (i.e. queues) as a moral and political issue. If I see you in person sometime, ask me about it, and I promise to talk your ear off for as long as you’ll let me about why it’s so fascinating. There’s lots of great stuff on it, but this recent piece articulates some basic questions that I’ve been mulling.
Some music I’ve been really into lately: “Glow On” by Turnstile; “Mr Morale and the Big Steppers” by Kendrick Lamar; “Long Time Coming” by Sierra Ferrell; “Renewal” by Billy Strings; and basically all the country covers Alex Melton does on his YouTube page.
Thanks for reading, everyone.