The problem with Roe, Casey, and Dobbs is that we all keep pretending the Constitution matters
It depends on what the meaning of the word "is" is
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So it turns out all the multiverse stuff is real. Every time any decision gets made or a photon gets bored, some quantum something happens and a new universe is spun off. There are effectively infinite universes in our multiverse, accounting for all possible realities. Some of them are surprisingly different from ours, but some of them are unnervingly similar.
Lucky you, you took the right mind expanding drug and now your consciousness has found its way to a multiversal betting arena. A fourth dimensional being named Xuunca (who can straight up manifest the currencies of Earth but still gambles just for the fucking thrill of it) wants to bet against you on the outcome of controversial US Supreme Court cases all across the multiverse. Pick whatever outcome you want! Xuunca no care how you bet! Xuunca just want the action! You’re pretty sure he’s making fun of you and all of humanity with the caveman impression.
You look through the books and find two universes that are exactly like the one we’re in now, with only a few relatively minor differences (minor compared to aliens invading Earth or our sun going supernova). They diverge in that in the first universe, Hillary Clinton was elected president in 2016 and reelected in 2020. In the second universe, Donald Trump was still elected president in 2016 but was also reelected in 2020. But then — infinite universes are infinitely weird — they converge again. In February 2021 all nine justices on the Supreme Court fell ill and died. Fearing electoral chaos and never one to miss a ripe opportunity for getting their way, the president in each universe nominated 9 replacements and they were quickly confirmed. Other than that, those universes are the same as ours, and Dobbs v. Jackson Women’s Health Organization was argued in December 2021 and the final opinion will be issued in June 2022.
Will be issued. It also turns out that time doesn’t exist, and from your astral frame of reference the opinion hasn’t been issued yet. Once you place your bet you and Xuunca can walk into the future, see what happened, and settle up. The question behind this thought experiment is:
How much real cash would you be prepared to bet that you could predict the outcome of Dobbs in each of those universes?
I’m personally fairly risk averse when it comes to gambling, so if these are the only two universes I can bet on then I wouldn’t take out an extra mortgage or risk absolute financial devastation. But I’d bet my entire savings account that in the Clinton universe Roe and Casey are upheld, and in the Trump universe Roe and Casey are overruled.
But there are infinite universes, and there are infinitely many just like those two, with only the minor tweak that different justices were appointed in each one. Many different courts, many different individual people on them, but all of them were appointed by either Clinton or Trump.
If I can bet across more than just the original two? If I can spread the risk by betting against 10 of each? I don’t see any way I can lose. Now I am mortgaging my house, throwing in my emergency fund, taking out the personal loans I keep getting junk mail about, soliciting investments from family and friends, and adding everything I forgot to put into retirement when I was younger (oops).
In each of these universes, the Constitution and existing case law is exactly the same. Only the members of the court are different. But I suspect that the majority of Americans would make these bets confidently.
Lawyers practice one of the most generally hated professions, somewhere just behind dentists and politicians. But a root canal ultimately makes you feel better, while politicians are still mostly lawyers. They’re the people who will pursue any class action lawsuit that makes them millions while the company settles with positive ROI and without admitting wrongdoing. They’re the people who will find any loophole or ambiguity or technicality in a law or contract or oral agreement or handshake, just to get their way.
But then they get appointed a Supreme Court Justice and suddenly they’re respected again.
I might characterize the polarization and tribalism facing our country today as our collectively having a troubled relationship with opinions.
An opinion can only be wrong according to another opinion. And they can’t be factually wrong; if they’re factually wrong they are not opinions but errantly held beliefs. And while some beliefs are based in verifiable fact, other things we call beliefs must be taken on faith. Those beliefs look a lot like opinions.
I think on culture war issues a lot of us have confused opinion, fact, justified belief, and belief taken on faith. Maybe instead of STEM we should be more focused on teaching epistemology. Everyone should learn to code separate justified belief from opinion.
It gets worse.
A definition of a word is only not an opinion when there is near unanimous agreement on it. And even when you think there is near unanimous agreement, there are always interpretations you didn’t mean. This is why works that want to reduce ambiguity (like legal, mathematical, and philosophical texts) take pains to define the terms they use up front. The ambiguity inherent in language is a lot more fun when discussing whether a hot dog is a sandwich or a taco than it is when defining person, woman, racist, or may not deprive of liberty without due process.
And without even getting too wild, it’s reasonable to say that some of what we believe to be justified beliefs are closer to opinions. Different studies will have different sources of funding, different powers, different populations, different effect sizes, different statistical analyses, and different outcomes; thus different researchers will weigh each factor differently and arrive at different conclusions. More mundanely, when two people recollect a conversation there are two versions of the truth but whatever the objective reality was has ceased to exist. And some facts are perception dependent. Whatever wavelengths of light were actually reflected into the lens, the photo showed either a white and gold dress or a blue and black dress. Again, plenty of fun examples, but it’s all much less fun when your job or verdict depends on eyewitness testimony or the subjective perception of fact.
Reality is by consensus. The opinions that gain enough support to become definitions, the definitions that influence thoughts, the thoughts that allow us to agree on facts: these are the waters of the epistemological sea we swim in. But even after cutting a canal, when a continent divides an ocean we consider them different oceans.
I am not so old, but I am not so young. A few decades ago political disagreements might have caused a row at our dinner table every now and then, but they didn’t seem to cause such lasting enmity. Our differences in opinion have become differences in reality. I’m not telling you anything you don’t know.
Not all opinions are equally valid. Some opinions are morally repugnant. But although I can say that with confidence, although I can phrase those sentences as if they were fact, they remain my opinions. You may feel that all opinions are equally valid, that having opinions happens naturally and mimetically, and an automatic and natural process can’t be invalid. You may feel no opinions are morally repugnant absolutely, that it depends on historical and cultural context.
A ruling is issued in a document called an Opinion, but it is not, prima facie, the same sort of opinion as what flavor of ice cream you like best. We rather think that an Opinion is an interpretation of the law, based on a diligent study of the cases that came before it in something analogous to a deductive process. We believe most judges, the ones who believe in fairness and impartiality, will come to similar opinions on what the law says. But that’s only true when the case law is the most emotionally salient point. The rest of the time, an Opinion really is more like what flavor of ice cream one prefers. Or more precisely, what flavor of ice cream a significant number of us prefer.
The 1995 essay The Myth of the Rule of Law by John Hasnas is a longish read at 36 pages, but worth your time. It includes an instructive quiz on what may be the simplest part of the First Amendment, and an illustrative example of two politically opposed law students who become judges. I don’t fully endorse Mr. Hasnas’ proposed libertarian solution, but I think his analysis is accurate.
His analysis is in two primary thrusts. First, the law is merely a slowly and incrementally evolving lagging indicator of general social mores. In other words, it is just an opinion, and the more-or-less consensus or status quo one. Second, the myth that it is impartial, fair, and logical serves the purpose of reinforcing the existing political power structure.
When looking back through our history — slavery, segregation, women’s suffrage — Mr. Hasnas’ first point that the law reflects social mores is so far from surprising as to almost feel banal. And yet even then we miss some of the point of it. The 13th Amendment couldn’t have been ratified in 1850. Brown v. Board of Education of Topeka would have had a different result in 1900. The 19th Amendment wouldn’t have been ratified in 1900 either.
And we miss the point of it almost entirely when we get closer to the present. Roe v. Wade would have had a different result in 1950, or 1960, or maybe even 1965. Society had to change first.
We believe our judiciary protects the rights of minorities from the oppression of the majority. To quote middle school civics, the rights of the majority, like popular speech, do not require judicial protection. The majority simply pass laws to give an air of impartialness to what they were doing already; to codify their opinions as if they were more like natural law. And the judiciary does protect the rights of minorities, to an extent. But the boundaries of that extent are defined by two things. First, the judiciary and the executive enforcement must believe in the value of protecting the minority, which means the minority must be large enough to wield real power. Second, the oppressing majority must not be so large that their power is overwhelming.
In other words, if taken to the streets it would be bloody. Ninety-nine against one is not bloody. Seventy against thirty usually has the same outcome, but it hurts. And the elaboration is only hypothetical. Usually the street fight comes first.
That’s a corollary of Mr. Hasnas’ second point. When the myth of the rule of law feels closer to a fairy tale than a cogent cosmology, the existing power structure dissolves. The law is seen for what it is: an a posteriori justification for the opinions of the wielders of power. With the establishment unshielded by a false belief in fairness, a countervailing power can be unleashed against it. Then society can change.
I didn’t predict Trump would win in 2016, and I suffered some version of the emotional drop a lot of liberal America felt that winter. But I don’t think I was as surprised as my family who took a “Mission Accomplished”-like Election Day photograph to commemorate voting for the first woman president. Rather than feeling abject surprise instead I remembered that around 2010 or 2011 I drove past the largest protest I’d seen yet in the city I then lived in. When I looked it up, I found out it was a Tea Party rally. That city is near the bottom of the 100 most populous areas in the US, yet the rally was several times as large as an anti-war rally in New York City that I’d seen in 2006.
After the election, I realized I missed the point of those memories. It wasn’t that our society was prioritizing the wrong things, or that progress on social issues was being reverted, or that demagoguery was rising. Those things may or may not be true, but the important point was this: the Tea Party had a lot of support.
And then in 2016, Trump received about 63 million votes.
From a certain point of view, I didn’t care that he lost the popular vote, or that he was a few percentage points behind Clinton. The relative numbers didn’t matter when the absolute ones were so large. Sixty. Three. Million.
As friends and family and social media and the news went in circles about the Electoral College and the two party system and what Trump said you could do to women when you’re famous and what Trump said about the kinds of people Mexico was sending over, I thought: I don’t think it’s very likely 63 million voters are that sexist or racist. I didn’t have the language for it then, but I didn’t really think structural sexism or racism were explanatory either. I wondered out loud how we could better understand Trump’s popularity from a more charitable point of view of his voters; even if only slightly more charitable than calling them deplorable. I thought it was a mild request, but I found it to be exceedingly unpopular in the months after the election.
And then in 2020, after everything that happened in those four years, Trump received 74 million votes.
Numbers often need viewed relatively to make full sense of them. A country’s GDP per capita tells you something different than its absolute number. But sometimes the relative numbers just plain hide information. Look at the exit polls for the 2020 presidential election results on Wikipedia through the lens of absolute numbers.
The story is that white voters went predominantly for Trump, except for about 42 million of them. Women voted for Biden, except for 33 million of them. I’ve always heard that more educated people are liberal, except 8.6 million voters with post graduate degrees went for Trump. About 3 million LGBT identifying people voted for Trump. Black voters broke overwhelmingly for Biden, except for about 2.4 million of them.
I know the exit polls aren’t perfect, and there are plus-or-minus some number of percentage points that change the math. But pick any subgroup you want and you will find large numbers of people who voted in a way you did not expect, and that’s true no matter what your expectation was. The narratives we place on our society are far more simplistic than appropriate, because even when demographics are predictive at more than 90% rates you still have literally millions of voters who defy them.
The narrative I’ve come to believe starts straightforwardly: The issues facing us today are complex, and as people we hold a range of opinions on them... But then it turns to what I’m constantly surprised to see found heretical: and, as opinions, most of them have some basis and deserve to be considered valid.
I don’t base that on the range of opinions on any particular controversial topic. My analysis is rather that even though people behave in ways I don’t understand and believe things I don’t believe, when they number in the scores of millions I generally believe that they’re not acting in malice but are instead making the best and most moral decisions they know how to make, which is no different than what I do.
But then you read a 2017 poll that says 1 in 10 Americans think neo-Nazi views are okay to hold, so maybe my whole viewpoint here is terrible. Or maybe that only reinforces the general rule: no easy narrative accurately describes reality, not even the ones I’m building up.
In an angry political argument I once asserted that my positions were morally superior to my interlocutor’s. Not by defending the moral basis of my beliefs, but just out of fatigue and frustration, literally and nearly verbatim: I am morally superior to you. I meant it sincerely, and in that moment I couldn’t find any better way to communicate my thoughts and feelings. But I am haunted by embarrassment.
I think that person supports policies that disproportionately and unfairly harm specific groups of people. I think that person’s beliefs are backward, that they hold back and morally harm society. I think that person’s understanding of material reality does not take into account all of the relevant evidence.
But they can say the exact same things about me.
To the extent objective reality exists on any particular topic, one of us is probably more right than the other; maybe substantially so. Obviously I think I am, or I wouldn’t hold the beliefs I do. This is not an argument for bothsidesism around the veracity or supportability of beliefs, except perhaps for those that are pure opinion. It is mainly a recognition that I was missing something important.
I think that person came to their beliefs through the same mechanisms I came to mine. I’ve gotten almost all of my information through secondary sources, whether newspapers or news programs or documentaries or Wikipedia. I doubt the average climate change believer has actually read more peer reviewed research papers than the average climate change denier. When I query friends and colleagues the most commonly read number is zero. While I believe that eventually I could prove the assertion that climate scientists overwhelmingly believe climate change is real and man made, I don’t believe it because I counted the scientists up myself.
I also think that person came to their beliefs earnestly and with both thought and compassion. It’s hard to reconcile what I find to be morally wrong beliefs with a sense of compassion, or what I find to be intellectually stunted beliefs with rational thought. But that only shows bias’s impact on my own empathy and my own reasoning ability.
I need the humility to know my verifiable beliefs might yet be wrong. And to co-opt (with tongue in cheek) a phrase from a past liberal zeitgeist, if my background has allowed me to have more correct beliefs I may need to check my epistemological privilege. And then, most difficult of all: in matters of opinion I need to remember that my belief that I am right carries no more weight than anyone else’s.