The Supreme Court’s draft opinion proposing to overturn Roe v. Wade brings to mind the Jewish telegram: “Start worrying. Letter follows.” The draft opinion, revoking a constitutional right that has existed for almost half a century, is bad enough. What the decision may portend, though, is even worse.
So many dire possibilities are suggested in Justice Alito’s draft that it requires a catalog to list them all. Early in the opinion Alito posits that supporters of the Roe decision had to show that the claim of a constitutional right to abortion had to be “rooted in our Nation’s history and tradition” and be “an essential component of what we have described as ‘ordered liberty.’”
Alito, who was born in 1950, traces a centuries long prohibition in common law in England and later legislative acts in America to show that abortion was considered a serious crime and was illegal. Not surprisingly, he finds that a putative constitutional right to abortion doesn’t meet the test. Never mind that the “right” to abortion had prevailed in the United States for almost fifty years, and several states had legalized abortion longer than that. That practice would seem to establish something of a modern-day tradition.
The draft opinion also takes on the doctrine of stare decisis, the doctrine that commands courts to give deference to precedent when circumstances are similar. Here is where things get troubling. The doctrine doesn’t insist that precedents can never be overturned, but rather when the Supreme Court determines that a precedent was in error. Alito writes that an erroneous decision can be “fixed” by amending the Constitution, “but our Constitution is notoriously hard to amend.” Then comes the other shoe. “Therefore, in appropriate circumstances we must be willing to reconsider and if necessary overrule constitutional decisions.”
Alito writes that Roe was erroneously decided. He cites three cases in which the Court overruled precedents, most famously Brown v. Board of Education (1954) which overturned the doctrine of separate-but-equal from the 1896 decision of Plessy v. Ferguson.
The difference here, however, is that the precedents he cites were overturned in order to establish rights for the plaintiffs. In overturning Roe, the Court would revoke a constitutional right women have enjoyed since Justice Alito was 22 years old.
It doesn’t take a great stretch of the imagination or a paranoid mentality to see how this line of reasoning could play out. The Court, in recent time, has already effectively gutted the Voting Rights Act of 1965 despite its having been renewed five times in following years. A conservative majority rolled back Congress’s authority under the Constitution’s commerce clause despite well-established precedent to the contrary dating back to the 1930s.
If precedent can be disregarded, we can’t assume that the Supreme Court will stop now. Controversial decisions upholding same-sex marriage and the Affordable Care Act could again come under scrutiny because of “erroneous” decisions by the Court. With a conservative super majority, the court can also take aim at several other controversial precedents. Laws making homosexual relations a crime may again be permissible. The court may be tolerant of attack on trans gender rights. And it’s not too much of a reach to wonder what would happen if a state decided to ban the sale of contraceptive devices, since some anti-abortion advocates are already discussing the matter.
So that’s another area of serious concern. Then there’s the question of how at least one—perhaps two—of the justices came to be confirmed. Neil Gorsuch received his appointment after Sen. Mitch McConnell, then the Senate majority leader, refused to hold a hearing on the appointment of Judge Merritt Garland to fill the seat vacated by the death of Justice Antonin Scalia in 2016. McConnell declared that because it was an election year, the American public should have an opportunity to decide who should appoint Scalia’s successor. Never mind that it was reported that McConnell said privately that if Hillary Clinton were elected, no one she appointed would be confirmed.
When Justice Ruth Bader Ginsburg died, during the 2020 election campaign, McConnell rushed to confirm Judge Amy Coney Barrett to replace her, and she was sworn in only 38 days before the election. Apparently, the American public no longer deserved the opportunity to weigh in on who Ginsburg’s replacement should be.
Emerson said, “a foolish consistency is the hobgoblin of little minds,” but asking for consistency in this instance doesn’t seem so foolish.
Then there’s the matter of sworn testimony in confirmation hearings. Alito, Kavanaugh and Gorsuch all testified under oath that Roe v. Wade was settled law that they had no intention of overturning. How can we square this draft decision with that testimony?
Since his appointment as Chief Justice, John Roberts has endeavored to maintain public respect for the Court and its decisions. He understands that without any means to enforce its decisions except the public’s respect for the Court’s authority, the Court’s opinions have little weight. Public trust, therefore, is essential for the Court to maintain its power.
Alito, however, seems to have a “Let them eat cake” attitude toward the public. He acknowledges in his draft that the Court needs to explain the principles behind its decision so that the public understands, but then glibly dismisses the idea that the Court should be swayed by public opinion, writing, “We cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work.”
The public already has justifiable concern about the integrity of the Court after McConnell’s hanky panky and published reports suggesting that Justice Clarence Thomas’s wife, Ginny, was a cheerleader for the January 6 effort to overturn the results of the 2020 election.
The Supreme Court is supposed to be the last barricade, the protector of democracy. Despite the protestations from sitting justices that the Court is non-partisan; we need to pay less attention to what the justices say and more to what they do.
One final thought: If the Supreme Court goes ahead with Alito’s opinion basically intact, the possibility of a silver lining presents itself. If Democratic candidates have the wit to campaign on the issue, and if voters—especially women—respond at the ballot box, we may yet see a better day.