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Know Your Enemy
Know Your Enemy

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How They Did It: Overturning Roe, Pt. 1 (w/ the 5-4 podcast)

On May 5, Politico published a leaked draft of the majority opinion in Dobbs v. Jackson Women's Health, written by Justice Samuel Alito, that would overturn Roe v. Wade. How did we get here? In the first of three episodes dedicated to answering that question, Matt and Sam talk to Peter, Rhiannon, and Michael of the 5-4 Podcast about the conservative legal movement's role and the right's use of the courts in achieving their aims. What were the main arguments in the leaded Dobbs decision, and where did these ideas come from? How important was opposition to abortion rights to the development of originalism and organizations like the Federalist Society? What function has the Federalist Society served in the conservative takeover of the Supreme Court? Also discussed in this episode: the relationship between radical, violent anti-abortion groups and the broader anti-abortion legal movement, the narrower victories the right won against abortion rights along the way, and what might come next from an emboldened conservative movement with the Supreme Court on their side.

Sources:

Josh Gerstein and Alexander Ward, "Supreme Court Has Voted to Overturn Abortion Rights, Draft Opinion Shows," Politico, May 5, 2022

5-4 Podcast, "Dobbs v. Jackson Women's Health: The End of Roe," May 4, 2022

5-4 Podcast, "The Return of the Rise and Fall of Roe v. Wade, Pt. 1," January 4, 2022

"The Return of the Rise and Fall of Roe v. Wade, Pt. 2," January 4, 2022

Know Your Enemy (w/ 5-4's Rhiannon), "The Texas Bounty Hunter Bill," September 30, 2021

Amanda Hollis-Brusky, Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution (Oxford University Press, 2019)

Ilyse Hogue and Ellie Langford, The Lie That Binds (Strong Arm Press, 2020)

Joshua C. Wilson, The Street Politics of Abortion: Speech, Violence, America's Culture Wars (Stanford University Press, 2013)

How They Did It: Overturning Roe, Pt. 1 (w/ the 5-4 podcast)

Comments

When you say "militant mass movements in the streets," are you calling for what that sounds like -- armed conflict?

TheRick

Yea, I kinda have this same question. Do conservatives just have an intuition about organizing people who like to control others? Was it easier to spin into a human rights issue that people would get passionate about?

bene

If Alito came out and said "Look we all know we've been trying to do this for 50 years and we promised our base, so we're just going to drone-strike Roe with no larger consequences ok, no backsies" I would have so much respect for the man.

Mark K

Maybe I missed it, but I need a better explanation of why the Federalist Society et al. seized on banning abortion as an important goal so soon after Roe. I confess to being convinced by Sen. Whitehouse's analysis (in his lecture to Barrett at her confirmation) about what "they" really want: 1. ending government regulation of private industry 2. limiting the ability of civil juries to exact damages 3. voter suppression 4. preserve dark money in elections This make sense to me because the real goals of "capital" are ##s 1. and 2., and ##s 3. and 4. are how you get there. From a 2022 vantage point, I can see how it makes sense to adopt positions that will recruit gun nuts, religious fanatics, and racists to your side in spite of their actual economic interests, but how do you see that path in 1973?

Adam Blistein

With the way things are going, you guys may need to do another depression episode because everything is so thoroughly demoralizing

Tim Combes

I generally agree with everything that was said, however I disagree with the idea that legislation should not be passed. Again, everything that was said is probably true, but part of the issues of why SCOTUS has taken on the position that is has is because Congress has not done it's job. I am for any ideas to change the judiciary-pack the court etc. but there is a view out there that the courts in this country have taken on out-sized importance and there needs to be a way to limit the courts' power. I would not expect the guests to take this view, but exploring ways to minimize the courts influence needs to be thought of as well.

Jennifer Reft

Q drop

DC

Spencer Lamm

Great episode! What has been so frustrating about all of this is the lame responses to the radical opinions of the Roberts Court. Roberts himself has been deft in charting a course that moves the ball forward in a radical conservative direction without setting off a backlash. The MSM media with its devotion to neutrality has played into this strategy. Roberts' conservative buddies were never happy with Roberts' "death by a thousand cuts" strategy and now that they no longer need him they seem poised to go all in on the conservative agenda. By more explicitly revealing their nakedly political agenda hopefully there will be a severe backlash.

History Chick

I think you sort of answered your own question. Conservatism is a movement with coherent goals, while the left spectrum from liberals to socialists have different, and often opposing goals. The left cannot count liberals as consistent allies, and historically many have sided with conservatives when push came to shove. Nancy Pelosi would never side with Bernie, let alone anyone more authentically radical. Then there's the larger problem of having effectively already lost to a foe far more ruthless and with a far greater command of the state than the left ever had even at the height of our power in the 1960s. We don't have decades to create the institutions necessary to combat the right on their own terms. A "pattern of thinking that is deeply frustrating" to borrow your words, is assuming that the left has the time, space, capacity and will to copy the right's project. We need to accept that a significant number of institutions are gone, and that the stakes are too high to continue pining for them. We need to learn to fight on different terrain: namely, with militant mass movements in the streets.

Caroline J

Word

Dan Anderson

Listening to this, I was struck at how the hosts & guests engaged in a pattern of thinking I've seen before on the left that I find deeply frustrating. In discussing how the right built to the overturning of Roe, they complain about how the Democratic party today won't take radical stances. They then spend quite some time talking about the amount of outside-party work that was done to bring the Republican party around to its current state. It's like, the GOP didn't just magically radicalize on abortion. It took a huge amount of work: the mobilization of religious conservatives as a voting bloc, the building of the Federalist society, etc etc. It was--quite literally--a half-century project! And as usual, this all just gets kind of ignored when leftists complain about Democrats. What are the lefty groups that are trying to build power outside the party? The DSA is kind of a joke at this point. I'd actually love it if Sam and Matt did a Know your Friends episode on this subject. Who is actually out there organizing for power outside of the Democratic party, with the goal of moving the party?

Jeff

Hell yes!

Allen

When your favorite podcasts collaborate, you know shit is getting real.

Michael


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