Barry Goldwater and Kevin Phillips saw this moment coming decades ago. Iconic figures in the history of the modern conservative movement, they each warned of what lay in our future should conservative Christians come to dominate the Republican Party.
Goldwater — famous for his proclamation that “Extremism in defense of liberty is no vice!” as he accepted the Republican Party nomination for President in 1964 — was openly disdainful of evangelical leaders who sought to sink their claws into the GOP. “If and when these preachers get control of the [Republican] party, and they’re sure trying to do so,” he warned as Jerry Falwell’s Moral Majority began to flex its muscles during the early days of the Reagan Administration, “it’s going to be a terrible damn problem. Frankly, these people frighten me… these Christians believe they are acting in the name of God, so they can’t and won’t compromise.”
If anything, Kevin Phillips’ warning was more dire. A political advisor to Richard Nixon in 1968 and a principal architect of Nixon’s Southern Strategy — whereby the GOP traded its traditional support among Black Americans for the support of southern and working class white voters — Phillips was no innocent bystander to the evolution that Goldwater feared. Along with Lee Atwater, Grover Norquist, and Karl Rove, Phillips was the midwife of the modern Republican coalition that has for decades relied upon election day turnout among conservative Christians as its path to power.
In his 2005 book, American Theocracy, Phillips described how the growing power of social conservatives within the GOP had transformed the Party of Abraham Lincoln into a party increasingly controlled by base voters opposed to Darwinism, skeptical of science, and imbued with what he called “theocratic tendencies.” In the words of Columbia University history professor and then-Provost Alan Brinkley, in his New York Times book review at the time, American Theocracy presented “a nightmarish vision of ideological extremism, catastrophic fiscal irresponsibility, rampant greed, and dangerous shortsightedness.”
In other words, Phillips described the world that has emerged before our eyes.
As millions of Americans grapple with the implications of the Supreme Court overturning Roe v. Wade, it is important to consider the implications of Justice Samuel Alito’s draft opinion, which appears to have the support of a majority on the Court. While many have hailed the overturning of Roe as a victory for originalism — the theory of jurisprudence that the Constitution should be interpreted in a manner consistent with what was intended at the time — Alito’s stance is less originalist than it is theocratic.
While this assertion may seem hyperbolic to some — just more evidence of sour grapes by those who refuse, as Justice Clarence Thomas suggested last week, to accept outcomes that don’t go their way — this is not my assertion alone, but one that reflects the words of Samuel Alito’s one-time role model, Antonin Scalia.
The central objection of originalists to the Court’s ruling in Roe v. Wade, is that Roe confirms a liberty on Americans based on the “Due Process Clause” of the Fourteenth Amendment, notwithstanding the fact that the term “abortion” itself never appears in the Constitution. If a right, they argue, was not enumerated by the Founders, it must in turn fall to the jurisdiction of the states. Roe is not alone in its reliance on the Fourteenth Amendment, as that amendment — passed in 1868 as part of the package of amendments in the wake of the North’s victory in the Civil War — has been the basis of Supreme Court rulings dating back a century or more.
Liberties guaranteed by the federal government that Americans now enjoy based on Supreme Court rulings under the umbrella of the Fourteenth Amendment include same-sex marriage, interracial marriage, the use of pornography in the home, and the use of contraception. The Supreme Court confirmed all these rights despite the fact that none of them can be found by name in the Constitution. Even something seemingly as basic as the right of parents to choose to send their children to private schools came about through a ruling a century ago, when the Court extended the rights of Americans under the Due Process Clause to recognize personal civil liberties.
Yet Alito bends over backwards to assure readers of his draft opinion that none of these rights that Americans take for granted are under threat, should Roe be overturned. Quite the contrary. Far from being an originalist attack on liberties that are nowhere to be found in the Constitution, his attack on Roe is purely reflective of his own moral view of the universe. Roe is unique, he tells us, because abortion is unique. And abortion is unique, in the words of evangelical commentator David French, “because abortion involves harm to a non-consenting party, the ‘potential life’ it destroys.”
“None of the other decisions cited by Roe and Casey,” Samuel Alito states in his opinion, referring to those other Supreme Court rulings that rely on the Fourteenth Amendment to confer freedoms not specifically identified in the Constitution, “involved the critical moral question posed by abortion. They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in anyway.”
Thus has he threaded the needle. Roe is sui generis because it involves a critical moral question.
This, however, is not true. A number of the other Fourteenth Amendment cases involved vexing moral issues; some at the time of the ruling, others still today. Surely, same-sex marriage and interracial marriage were viewed by opponents as critical moral questions at the time the Court ruled; and, at least with respect to same-sex marriage, a segment of Americans still hold that view.
While last year saw support for gay marriage (protected by the Court in its 2015 decision in Obergefell v. Hodges) hit the 70% mark, as recently as 2008 the two major contenders for the Democratic presidential nomination each opposed same-sex marriage; and opposition among Republicans was widespread. According to Gallup, last year marked the first time support for gay marriage among Republicans reached 50%, while a quarter of the country continues to believe same-sex marriage should be illegal. A number of states continue to have laws banning same-sex marriage on the books, notwithstanding the Court ruling in Obergefell, with Republican legislatures repeatedly declining to remove them.
Perhaps most notably, contraception remains a critical moral question for many. In 1965, in its ruling in Griswold v. Connecticut, where the Court affirmed the right of couples to use contraceptives, a majority of the Court found that a right to privacy could be inferred from various constitutional amendments, even though a right to privacy is never specifically mentioned in the Constitution itself.
Three years after the Court ruling in Griswold, Pope Paul VI published a papal encyclical declaring that it is “intrinsically wrong to use contraception to prevent new human beings from coming into existence.” That encyclical, which reflects exactly Samuel Alito’s concern over “potential life” remains Church doctrine to this day. Furthermore, according to data from the Guttmacher Institute, while contraception and abortion are equally common among people of all faiths, each is opposed on moral grounds by a quarter to a third of the public.
Alito’s stance — picking and choosing his way through the Fourteenth Amendment and falling on protecting “potential life” as his rationale is not conservative jurisprudence. Or at least to a lay observer, it appears to be a far cry from originalism as it is explained by Antonin Scalia in his dissent in Planned Parenthood v. Casey, which Alito chooses to reference in his draft opinion.
In that dissent, Scalia specifically rejected the entitlement of justices to impose their moral judgments, which Alito embraces. “I reach that conclusion,” Scalia explained in Casey, as to why abortion was not a protected liberty, “not because of anything so exalted as my views concerning the ‘concept of existence, of meaning, of the universe, and of the mystery of human life.’ Rather, I reach it for the same reason I reach the conclusion that bigamy is not constitutionally protected because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed.”
Perhaps Alito simply lacks the courage of his convictions. Perhaps, as badly as he wants to overturn Roe, Alito fears the outcry that would — and should — ensue if the Court were to do as Scalia’s originalism would dictate, and set the dominos in motion for a series of cases aiming to overturn rights Americans now enjoy to, including the use of contraception, gay marriage, interracial marriage, and on down the list.
Or perhaps Alito’s timidity is a strategic ruse, because he understands that a full assault on all of those rights Americans now take for granted would play into John Roberts’ hands, as the Chief Justice seeks to build a majority for a more circumscribed affirmation of the Mississippi law that is the focus of Dobbs v. Jackson Women’s Health, in a manner that would fall short of the complete reversal of Roe that Alito so badly seeks.
Most likely, this is just Samuel Alito with the gloves off. He has made clear over his years on the Court, the direction in which he wants the Court to head. To frame him as simply an originalist is to ignore his determination to use the power of the Court to redress the injustices that he believes people of faith in America face at the hands of an aggressive secularism across society and culture, where, in his words, those who “cling to traditional views on marriage are labeled as bigots.” Religious liberty, as he has framed it, is about whether “society will be inclusive enough to tolerate people with unpopular beliefs.”
And that is indeed a fair question… perhaps the defining question. It is the reason, one imagines, that Scalia emphasized that his stance in his dissent in Casey was not about his personal religious convictions, but rather sticking to the letter of the law. “Critical moral questions,” to use Alito’s words in his draft opinion, inherently cut both ways. But Alito’s concern for religious liberty is only about those whose views on “critical moral questions” mirror his own.
Having established an entitlement of “potential life” for protection under the law in Dobbs, it is inconceivable that a Court majority with Alito at its head will be satisfied with delegating decisions regarding abortion to the states. Extending his moral judgment to its logical conclusion, it is only a matter of time before that new majority foresakes any remaining pretense of originalism and finds that abortion — permitted by states in the wake of the overturning of Roe — violates newly-found constitutional rights of the unborn.
This is the moment that Barry Goldwater and Kevin Phillips warned against. As a justice on the highest court in a liberal democracy, Samuel Alito is supposed to be able to look past his own exalted views of the mystery of human life. Unfortunately, he is not. Coming in the wake of the January 6th insurrection, the emergence of a majority on the Court with the inclination and power to embrace Alito’s theocratic doctrine of jurisprudence looms to be just the next step in our country’s unraveling.
Follow David Paul on Twitter @dpaul. He is working on a book, with a working title of “FedExit! To Save Our Democracy, It’s Time to Let Alabama Be Alabama and Set California Free.”
Artwork by Joe Dworetzky. Follow him on Twitter @joedworetzky or Instagram at @joefaces.