The Supreme Court's Radical Right Turn Is About Restoring Patriarchy, Plain and Simple

Yahoo

13-05-2025

This essay is excerpted and adapted from Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes, which was published by One Signal Publishers, an imprint of Simon & Schuster, on Tuesday.
When the Supreme Court overruled Roe v. Wade in the 2022 decision Dobbs v. Jackson Women's Health Organization, the dissenters warned that 'one result of today's decision is certain: the curtailment of women's rights, and of their status as free and equal citizens.' In the framework of the biggest hit film the following year, the Barbie movie, the decision to eliminate a woman's right to reproductive freedom was a Ken-surrection—a move to restore a patriarchy where men are on top.
Overruling Roe was just the opening salvo in this fight, which has raged ever since and only been exacerbated by Donald Trump's return to the White House.
The decision overruling Roe illustrates how the Supreme Court can make constitutional law worse through a cycle that merges feelings and politics with courts and law. The feeling behind the process that produced Dobbs was patriarchy. Those are now the vibes animating this area of law after Republicans turned assorted feelings about feminism and gender roles into a political strategy, and Republican justices channeled the big feelings about feminism and women's sexual liberation to hard launch a gender counterrevolution. Originalism was merely a vessel for Republicans' anti-feminist thoughts and prayers, but that ideology goes well beyond the jurisprudential methodology of originalism. Which means the law may as well.
As the feminist movement of the mid-1900s took off, so too did a strand of anti-feminist male grievance politics. After Congress passed the Equal Rights Amendment, the constitutional amendment that prohibits discrimination on the basis of sex, a countermovement pushed states not to ratify the measure. A young lawyer who worked in the Richard Nixon administration wrote a memo offering various objections to the ERA. That lawyer's name was William H. Rehnquist (the same William H. Rehnquist who Nixon would later nominate to the Supreme Court and Ronald Reagan would make chief justice of the United States). Rehnquist blasted the ERA's 'overtones of dislike and distaste for the traditional difference between men and women in the family unit' and warned that outlawing sex discrimination would cause 'the eventual elimination' and 'dissolution of the family.' Phyllis Schlafly, one of the principal organizers against the amendment, urged the country to reject the ERA on the ground that 'women's lib is a total assault on the role of the American woman as wife and mother and on the family as the basic unit of society.' She also accused feminists of 'promoting' 'day-care centers for babies instead of homes' (among other things).
The Republican Party decided to incorporate these feelings into a political strategy. They came up with more anodyne-sounding language to describe their anti-women's-liberation platform—a promise to restore 'traditional family values.' That led to an affinity between conservative religious voters, especially white evangelical voters, and the Republican Party. But the politics of gender hierarchy didn't exactly win over the ladies. While the Republican Party won over evangelical voters in the 1980s, they also lost women voters as women began to consistently prefer Democratic presidential candidates.
Republicans initially seemed almost surprised that women fled the party, and they struggled with how to respond (without having to embrace women's rights, of course). Nixon staffers acknowledged they had a 'woman problem,' and Reagan promised to appoint a woman to the Supreme Court to shore up Republicans' support among women voters.
But at some point, a fair number of Republicans started to view losing women as the inevitable and acceptable cost of their political strategy of male grievance. In 2021, then Republican Senate candidate and future vice president J.D. Vance derided Democrats as 'a bunch of childless cat ladies who are miserable.' When his remarks resurfaced during the 2024 presidential campaign, Vance said, 'Obviously it was a sarcastic comment. I've got nothing against cats.'
That same year, Republican congressional representative and future Republican nominee for attorney general Matt Gaetz boasted to the press about the GOP's strategy for replacing lost women voters with minority men voters: 'For every Karen we lose, there's a Julio and a Jamal ready to sign up for the MAGA movement.'
That ascendant 'separate sex roles are good actually!' worldview was already being funneled into the jurisprudential method known as originalism. Originalism took off at around the same time that the Republican Party decided to run against feminism and to embrace originalism as a way to do that. Reagan Attorney General Ed Meese said, in front of the entire American Bar Association, that a 'jurisprudence of original intention' was the way to challenge 'the radical egalitarianism and expansive civil libertarianism of the' Supreme Court that had recognized some measure of constitutional protections for women's sexual and bodily autonomy.
Originalism had (and still has) a natural symbiosis with a Republican Party that was looking to restore certain traditions such as gender roles related to the family. A key premise of originalism is that the Supreme Court has erred by departing from some righteous past that must be restored. (Patriarchy—the righteous past is patriarchy.)
Originalism directs decisionmakers to ask what the Constitution meant when it was ratified or amended (in the 1700s or 1800s). That outsources the content of our fundamental laws, including what rights we have, to a group of people who were probably more sympathetic than the modern electorate to Republicans' platform of gender traditionalism—the white men (Kens) who drafted and ratified the Constitution and many of its amendments. The court's decision overruling Roe illustrates this well. Dobbs declared there was no constitutional right to decide to have an abortion because 'until the latter part of the 20th century, there was no support in American law for a constitutional right to an abortion.' Never mind that women couldn't fully participated in civic society or electoral politics until the latter part of the 20th century. For the majority in Dobbs, it didn't seem to be a bug that their jurisprudential method ignored women. If anything, it may have been a feature, since the Republican justices didn't have to consider the views of the hysterical women who wanted to control their bodies, their lives, and their futures. The majority could instead consult a group that was more sympathetic to the whole 'traditional family values' thing—the dudes (Kens) who ran things in the 1700s and 1800s. It's eerily and conveniently similar to the stated preference of the 2024 Republican nominee for governor in North Carolina, who said, in 2020, that he'd like to 'go back to the America where women couldn't vote because that was when the Republican Party had a better reputation.'
Ladies and gentlemen (but mostly for the gentlemen, because patriarchy) … originalism! To this day, originalism fits the Republican Party's political project: It kind of parrots the party's 2016, 2020, and 2024 slogan 'Make America Great Again,' which, like originalism, promises a return to the way things were. (Patriarchy—that's the way things were.)
It's important to see the ideology, not just the methodology, that's at work here, in the political party that brought us Dobbs—because the ideology will push the law in ways that go well beyond the methodology. The Trump administration pulled funding for research to protect pregnant women from domestic violence, labeling it a 'DEI' initiative. They slashed funding for family planning programs. They fired the Navy's first female chief, creating an all-male corps of four-star generals and admiral leadership positions. They fired the first woman to serve as Commandant of the Coast Guard and issued a statement disparaging her leadership and 'excessive focus' on DEI policies. The Department of Education rescinded the guidance that indicated name, image, and likeness payments to student athletes should be equal between men and women. The administration has disrupted and destabilized federal funding for rape crisis centers and removed funding opportunities from the website for the federal office on violence against women. They even tried to blame the deadly plane crash at Washington National Airport on 'DEI policies,' which they seemingly used to refer to the mere presence of women (and racial minorities) in important federal jobs.
The ideology is, as ever, about subordinating women and elevating men—it is excluding women's voices, and women themselves, from public life. They are sending the message that women are unfit for political leadership and many aspects of civic life.
Because that was the ideology at work in Dobbs, the implications for the law go well beyond those matters in which the justices might invoke originalism. This term, the court is hearing a major case involving women's health care, Medina v. Planned Parenthood of South Atlantic.
The decision arises out of states' attempts to 'defund Planned Parenthood'—in this case, to bar Planned Parenthood from participating in the Medicaid program (which supplies health insurance to various needy populations). Removing Planned Parenthood jeopardizes women's health care because Planned Parenthood is often the health care provider for indigent and needy populations. In some areas, particularly rural ones, Planned Parenthood is the only health care provider for women.
The question in Medina is whether federal law—the Medicaid Act, and the general civil rights statute, Section 1983, allow private individuals (either patients or providers) to sue and challenge a state's exclusion of Planned Parenthood from Medicaid. Originalism is nowhere in the case, since the matter turns on the interpretation of federal statutes rather than the Constitution. But the ideology behind the originalism in Dobbs is.
Cases in the lower federal courts underscore the same. Federal courts have heard, or are hearing, challenges to states' exclusion of contraception from the Title X family planning program—another matter that has nothing to do with originalism. A district court in Texas is still sitting on a group of Republican-led states' challenge to mifepristone, one of the two drugs in the medication abortion protocol. In that case, the states are arguing that suppressing teen birth rates injures them, as if teenage girls' true calling is to serve as baby incubators for the states.
When the Supreme Court overruled Roe v. Wade, Justice Samuel Alito's majority opinion insisted that no other rights would fall. The statement was ridiculous at the time, and has aged even worse over the last three years. The Republican justices' transformation of the law, and the political movement they are part of, was never just about 'abortion.' They are about women's place in the law, and the country.