Image by Ivy Sanders Schneider

The Temptation to Speculate

Alexandra Brodsky

I have a degree in psychoanalyzing Anthony Kennedy. When I was a law student, he was still the swing vote on major social issues, and therefore a topic of disproportionate interest around the school. And his opinions were, to put it technically, heavy on vibes. Behind the legal reasoning lay a worldview, a set of commitments somewhere between the ethical and the aesthetic, that I found harder to pin down than those of his colleagues. But maybe that was just me. In one meeting with a professor for whom I was allegedly researching abortion cases, I excitedly shared my conclusion: Justice Kennedy thinks women are moon goddesses. The professor was unimpressed. 

Then, of course, Justice Kennedy retired in 2018. He was replaced by Justice Kavanaugh, one of Trump’s three Supreme Court appointments who collectively shifted the Court rightward. Whatever I had gleaned about Kennedy’s views of gender, sexuality, and reproduction was officially useless, if it hadn’t always been. At that juncture, there was no use trying to delve into the psyches of the new justices when it came to abortion. That a new united conservative majority would overturn Roe v. Wade was inescapable from the moment Justice Ginsburg died, if not sooner. 

But now the dog has caught its tail. The concurrences in Dobbs v. Jackson Women’s Health Organization suggest the six conservative justices are now likely fractured as to what comes next in the policing of reproduction. Justice Kavanaugh sought to reassure readers that the Constitution would still limit the ability of the states — and the Court — to restrict abortion access in particularly draconian ways. By contrast, Justice Thomas invited his colleagues to treat Dobbs as a mere opening salvo, and to “reconsider all of this Court’s substantive due process precedents, including Griswold,” the case that recognized a married couple’s right to use contraception. In the coming years, the Court will be presented with a series of questions about what it means to live in post-Roe America. This next term, it may hold that the FDA’s approval of mifepristone, used in medication abortions, is illegitimate. Further down the line, the Court may permit the criminalization of people who cross state lines to seek abortions, as well as the abortion funds that make those trips possible. Perhaps the Court will hold that abortion violates fetuses’ constitutional rights. Perhaps it will allow states to ban IVF. I suspect there are at least a few votes for each of these positions, but I don’t know if there are five. I wonder if the justices do. 

I don’t wonder too intently, though. When one of my clients’ lawsuits makes its way into the Court’s pool of potential cases, it’s my job to figure out what arguments will convince the most justices. But apart from that, I’ve tried to resist the temptation to speculate, uselessly and from afar, about whose commitment to the Court’s legitimacy might still serve as a bulwark now that the dam has broken, or if any justice is invited to enough centrist D.C. cocktail parties for the possibility of ostracism to have a deterrent effect. I might encourage current students to spend less of their legal education than I did — not none of it, but less — obsessing about the inner lives of men they will never meet, and instead learn, say, how to get women out of jail.

Alexandra Brodsky is a lawyer and the author of Sexual Justice.