A decision of the Supreme Court, once made, nearly always stands. When the court rules about the meaning of the Constitution, it has lasting power to define the country. But words of a dissent are not always lost to history.
There is a tradition in the United States, Ruth Bader Ginsburg said in 2002, where eventually, over time, the greatest dissents become the law of the land. “That’s the dissenter’s hope: that they are writing not for today but for tomorrow.”
The dissent in Roe v. Wade in 1973 laid the foundation of its overturning nearly 50 years later, and with its reversal a new dissent emerged in Dobbs.
The three justices appointed by Democrats—Stephen Breyer, Elena Kagan, and Sonia Sotomayor—had written an unusually agonized opinion, and a warning. “After today, young women will come of age with fewer rights than their mothers and grandmothers had,” the dissenters wrote. “The majority accomplishes that result without so much as considering how women have relied on the right to choose or what it means to take that right away.”
They concluded with overt words of sadness, a rare seeping of emotion into the legal language of the court. “With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent.”
Six days into this new America, the first post-Roe justice took her oath of office for the Supreme Court. For the first time, there were four women on the court. And, for the first time, a Black woman. As she transformed the court, she also entered a court transformed, riven by polarization and mistrust, ruling over a divided nation.
Cameras flashed as Ketanji Brown Jackson took her seat at her Senate confirmation hearing, in the spring before the decision. The hearing made clear the new questions that would define her era.
As the questioning on the second day dragged into hour 13, Marsha Blackburn, the lone Republican woman on the committee, took the microphone. The senator, who famously preferred the title congressman during her earlier years in the House, had made her name through the antiabortion cause. She led one of the congressional committees that investigated Planned Parenthood in 2015, fanning the controversy with the audacious charge that the group was selling “baby body parts on demand.”
Judge Ketanji Brown Jackson’s confirmation hearing.
“I’m a pro-life woman,” Blackburn now explained, in her honeyed Tennessee twang, from the edge of a long U-shaped table. “I find it incredibly concerning that someone who is nominated to a position with life tenure on the Supreme Court holds such a hostile view toward a view that is held as a mainstream belief that every life is worth protecting.”
The Dobbs decision was coming soon, Blackburn said. There would be a new precedent. Would Jackson commit to following the court’s decision on Dobbs, should Roe no longer apply? It was the reverse of the standard question about Roe that Republicans had asked for decades. Now, Blackburn was asking whether Jackson would respect what her movement had spent so many decades working to achieve: the fall of federal abortion rights as a new precedent in American law.
The woman who would become the country’s first Black female justice responded by giving an upside-down—and yet the same—version of the answer used by Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. “Whatever the Supreme Court decides in Dobbs will be the precedent of the Supreme Court. It will be worthy of respect in the sense that it is the precedent.”
Blackburn pivoted to another question, one that was far more unusual. It was one that no one could remember ever being asked of a Supreme Court nominee. “Can you provide a definition for the word woman?” she asked.
Supreme Court Justice Ketanji Brown Jackson
Jackson paused. “Can I provide a definition? No. I can’t,” she responded. “You can’t?” asked Blackburn, her voice rising. “Not . . . not in this context,” Jackson responded. “I’m not a biologist.”
Blackburn pounced. She expressed concern about a transgender swimmer who won a collegiate swimming championship just days earlier. For conservatives, this was a gotcha moment, a way to stoke conservative outrage about transgender rights and show how far the country had strayed from traditional values. “The fact that you can’t give me a straight answer about something as fundamental as what a woman is, underscores the dangers of the kind of progressive education that we are hearing about,” Blackburn said. “It tells our girls that their voices don’t matter. . . I think it tells them that they are second-class citizens.”
Americans didn’t have a clear answer either. Searches of the word woman spiked after the exchange, leading Dictionary.com to select it as the word of the year for 2022. The word woman, so simple and common, was “inseparable from the story of 2022,” they wrote. Decades of political warfare happened over abortion and pregnancy, a nine-month period when women gave of their own bodies and blood to grow new beings. Yet the symbolism of Roe had been so much bigger than just the temporary phase of pregnancy. When the nation fought about abortion, it was debating the place of women in American life.
For nearly half a century, Roe was seen as a foundation of women’s freedoms in America. A pregnant woman could legally choose whether she wanted to bear a child. It was a ruling ushered in by a rapidly changing understanding of women’s place—economically, legally, and domestically—in the national project. When Roe was decided, women could not get a credit card in their own names, could not legally refuse sex to their husbands, lacked guarantees not to be fired if they became pregnant, and did not have legal protections against sexual harassment. There were no female senators, and the first female Supreme Court justice—Sandra Day O’Connor—would not be confirmed for another eight years.
The Dobbs decision effectively restored childbearing as an inescapable fate for pregnant women and girls in broad swaths of conservative America. Yet it could not turn back the clock. America was changing. And as Jackson’s presence on the congressional dais underscored so vividly, the societal changes since Roe were now “deeply rooted”—if not in American history, then certainly in the reality of the American present.
Dobbs was now the guiding force for the country’s laws. But the mass outrage that met the ruling showed that the country had not resolved the essential question intertwined with the long national battle over abortion: What rights is a woman owed?
In America, a nation that from its founding declared that all men were created equal, it was never in doubt that all white men had rights. But from the beginning, the place of women was always less certain, as Abigail Adams made clear to her husband in 1776 when he served in the Continental Congress to craft the foundation of this new nation: “I desire you would Remember the Ladies, and be more generous and favorable to them than your ancestors,” she wrote. “Remember, all men would be tyrants if they could.”
Generations later, even the most basic understanding of the role and rights of women in the American experiment, even the essence of what makes a woman herself, remained unresolved. The majority of justices in Dobbs, representing a minority of Americans, declared one answer. A minority of justices in Dobbs, representing a majority of Americans, had their own reply.
And on the final day of Jackson’s hearings, when the Republican senators returned to Blackburn’s line of questioning about womanhood, the soon-to-be newest justice offered an answer of her own. It cut through political lines. It did not wrestle with faith or race or ideology or the law. Instead, it spoke both to a woman’s sense of self-determination and the interdependent relationship that defined the abortion question for so many.
“I know I am a woman, I know Senator Blackburn is a woman,” she said, her voice strong. “And the woman I admire most in the world is in the room today. My mother.”
Adapted from The Fall of Roe: The Rise of a New America, by Elizabeth Dias and Lisa Lerer, published by Flatiron Books, an imprint of Macmillan Books. Copyright © 2024
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