A Critic in the Court

“We can only do our job,” Justice Samuel Alito wrote in his draft opinion for Dobbs v. Jackson Women’s Health Organization, “which is to interpret the law.” “These claims to neutrality and humility should make you nauseous and irate,” writes Liza Batkin in “Deceit in Plain Sight,” her contribution to the Review’s symposium about the future of abortion in America. As she elaborated:

while claiming fidelity to the constitutional text, the majority’s draft is steeped in unexplained views about the importance of protecting fetuses at all stages of development—views that do not come from the Constitution but have traditionally been the purview of conservative and religious antiabortion advocates.

Batkin is now a lawyer, focused on civil rights law and, as she told me over e-mail, “working on lawsuits and class actions against the NYPD, the New York State Police, and the Department of Corrections.” She was for a time an editorial staffer at the Review, a former philosophy major who wrote about art films, Louise Erdrich, prestige television, and Ottessa Moshfegh. We corresponded this week about the similarities of legal and cultural writing, close-reading Justice Alito, and taking the fight for Roe out of the courts.

Daniel Drake: How did you come to writing about the law? I knew you first as an editor and writer on cultural matters, but you took a decisive turn toward justice. What inspired that change?

Liza Batkin: I started thinking about the law at the Review, actually, when I realized how much I liked working on pieces by Jeremy Waldron, David Cole, Jed Rakoff, and others. This writing, at its best, is rigorous and revealing and explains the invisible rules that govern our lives. Outrage with the criminal legal system was what sent me to law school, but somewhere in the back of my mind I also fantasized about knowing enough to be able to write about something so meaningful and opaque.

Reviewing art and literature, I’ve often felt like a wet blanket, explaining why an enjoyable show or book is, in fact, flawed. (This probably says more about the limits of my approach to criticism than anything else!) But writing about the law changes the object. I like the challenge of looking closely at opinions or doctrines that many people would find very boring or dense and trying to show their stakes and logic without ruffling the feathers of legal experts. It’s also just nice to be trying something new. I can really feel the effort of learning how to write in a different way.

“Deceit in Plain Sight” uses a kind of close reading to get at the implications, or meanings, of Justice Alito’s draft opinion. How do you think the genres of criticism and legal writing inform or relate to each other?

Close reading is certainly important to both. As a perverse illustration, you can read the terrible Florida opinion striking down the CDC mask mandate, which spends about ten pages parsing a statute’s use of the word “sanitation” (and concludes, rather metaphysically, that the word means “changing, not preserving, the status of an object or area by cleaning”). Legal writing and criticism both toggle between sustained attention to individual words and a broader view: at a book or opinion as a whole, an author’s body of work or a judge’s body of opinions, a line of predecessors or a line of precedent.

But reason and logic, which sustain legal writing, can only get you so far in criticism. After sifting through a novel’s inconsistencies, you also need to account for the way it lands, the mood it creates, how it manages to leave you nostalgic or weepy or soothed. There isn’t much of this in legal analysis, for obvious reasons, though it’s fun to think about what that would look like.

Your question also makes me curious about another connection. The justices on the Supreme Court and the scholars and writers who study it ask us to read legal opinions the way Barthes read books: without peeking behind the page at the author’s identity. Much legal writing doesn’t spend a lot of time on the opinion-writer’s past or religion or their spouse’s conspiracy theories. There are good reasons for this, but I do think it requires a suspension of disbelief that can sometimes make for evasive or gullible thinking. If you read a novel by a Catholic author with a strong anti-abortion message, for instance, you might be tempted to draw a connection between the writer and the work, but for the most part we’ve chosen to take justices at their word when they say they’re not influenced by their own beliefs.

What are the legal implications of the insinuating footnotes and references to “unborn human beings” you identify in Alito’s draft opinion? As written, the ruling purports not to weigh in on the legality of abortion per se, but does the use of citations to (nonbinding) dissenting opinions from conservative justices, or the general tone of deference to the right’s understanding of abortion, carry any weight for how the ruling could be interpreted or applied?

Just by overruling Roe, the anticipated Dobbs decision will lead to a flurry of activity: states with anti-abortion laws on the books will set out to enforce them, others will pass new laws, still others might make their laws more restrictive. There may be efforts to pass a federal ban. Without a constitutional right to abortion, this will all be fair game. But if you interpret the opinion as giving moral weight to the protection of fetuses starting with conception, then it doesn’t just allow conservatives to do all these things. It also gives their mission a sheen of righteousness.

As for its tone, the whole draft reads like a victory dance, the quotes from dissenting Republican-appointed justices like freshly installed portraits in a new president’s Oval Office. You can almost see the Court’s majority rolling out a welcome mat for conservative advocates.

What might the next steps for pro-choice legal activists be? It would seem litigating the matter in the courts is counterproductive at this point, so how might they engage the issue in the legislatures? Or are there still judicial avenues available?

I have the same question! The best I can do is point to some things I’ve been reading. These pieces show how, without a constitutional right to abortion, people fighting against the enforcement of bans and restrictions will have to bone up on other laws and protections: state and federal health statutes, laws governing federal mail, even religious freedom. And while that fight goes on in the courts, people and politicians in states where abortion is legal should step in by funding travel for people in states where it isn’t and reinscribing protections for abortions at home.

Can you recommend any legal scholars and writers you’ve been enjoying lately, or whom you have found to be informative or helpful at this moment?

For Court analysis, I try to listen every week to the podcast Strict Scrutiny, hosted by three law professors, which I especially like for its summary of some of the lower-profile, more technical decisions that wouldn’t typically grip me. I also read the great Linda Greenhouse, of course, and Elie Mystal, who avoids the sanctimony of a lot of Court writing. But some of my favorite pieces about legal issues aren’t written by lawyers. I loved Jelani Cobb’s profile of Derrick Bell, for instance, and essentially everything that Rachel Aviv writes, which somehow manages to make piercing points about legal systems and presumptions while focusing on people and the lives they lead.