Saturday, December 2

Leaked draft opinion overturning Roe v. Wade shows Supreme Court out of touch with America

“And so the deed is done,” says Shakespeare’s MacBeth, his hands covered in blood, when he delivers to his wife the news that he has killed Duncan, opening the path to their ascent to the Scottish throne that they so desperately crave.

Last night, news broke of a different deed being done, the imminent termination of Roe v. Wade. It came via a leaked copy of Justice Samuel Alito’s draft majority opinion in the Supreme Court case, Dobbs v. Jackson Women’s Health Organization.

This was not the physical knifing of a king, but rather a dagger delivered to the heart of women’s reproductive freedom that a moderate Supreme Court assured some 50 years ago.

The Alito opinion is also a grave blow to the body of stare decisis. That is the near-sacred doctrine of American courts, repeatedly and cynically sworn to by nominees in confirmation hearings such as Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — all of whom apparently signed on with Alito to upend court precedent.

The principle is that judicial precedent ensures predictability and stability in society and is therefore not subject to reversal based on mere changes in who is wearing judicial robes. It allows citizens to rely on prior judicial decisions and plan their lives accordingly.

The leaked opinion does not disclose which justices will constitute the majority. But it is sure to include justices occupying seats stolen or jammed down the country’s throat by Mitch McConnell’s (R-Ky.) power-politics putsch weeks before the 2020 presidential election. That action disrespected the electorate, Senate custom, and indeed McConnell’s own practice four years earlier in blocking the nomination of Merrick Garland in an election year.

As in Shakespeare’s MacBeth, there is a new king on the throne, a new judicial majority activated by long-simmering ambition to preeminence and the Republican party’s ideological cause celebre.

Though the leaked opinion barely uses the word religion, like much of the anti-abortion movement, it clearly favors a set of sectarian beliefs, faith and doctrine.

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The opinion is written with the certainty of a crusader destroying an “infidel” in the name of his Lord. There are repeated references to abortion’s “brutality,” with homage to the “belief that abortion kills a human being,” and terminates “life or potential life.”

Make no mistake. That kind of language lays the groundwork for upholding a national ban on abortion, notwithstanding all the opinion’s tribute to states’ right to decide the issue for themselves.

All the rationalizing in the world cannot mask the reality that, as a University of Colorado study shows, mothers and mothers-to-be will die from this decision, some of them our sisters, daughters, spouses and partners. They will be human beings seeking only the basic right to control their lives and their bodies.

The Court seems intent on dragging American women back to days when they were relegated to second-class citizenship and reproductive imprisonment by their gender in a patriarchal society. The air hangs heavy today with the rasping sounds of inequality and diminution of freedom based on biology.

As the astute commentator Ron Brownstein has written, we are witnessing a replay of earlier moments in the Court’s history. He compares the present moment to the 1850s when the Court tried to block efforts to stop the spread of slavery and the 1930s when it tried to “derail” Franklin Delano Roosevelt’s New Deal agenda. In both those eras the Court “spoke for the forces most resistant to a changing America.”

In just that spirit, Justice Alito lays the groundwork for potentially eliminating other constitutionally “unenumerated rights” such as the right to travel, the right to vote, the right to marry a person of different race or of the same sex, and the right to privacy itself.

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Seeing through Alito’s empty insistence that the leaked opinion only pertains to cases about abortion, University of Texas constitutional law scholar Steve Vladeck got it right when he tweeted yesterday, “This is an earthquake — for what it portends for the future not only of Roe, but of all implied fundamental rights.”

And while Alito claims to be taking down Roe in the name of the voters and of judicial restraint, his claims of devotion to both ring hollow.

They come from a justice who has joined his conservative colleagues in a series of earlier decisions that have let loose a flood of dark money into American elections, eviscerated the Voting Rights Act, blessed partisan gerrymandering, and wreaked havoc on the foundations of democracy itself.

And for all Alito’s language honoring conservative principles of judicial restraint, there is one stubborn fact not easily circumvented: The limited issue before the Court in Dobbs is the constitutionality of Mississippi’s statute, which only bans abortions after 15 weeks of gestation. 

Judicial restraint includes adherence to a venerable precept of traditionally conservative jurisprudence which Alito’s opinion ignores. As Supreme Court Justice Louis Brandeis laid out long ago in Ashwander v. Tennessee Valley Authority: “The Court will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.”

Yet that is exactly what the Court has done in its rush to entirely overrule Roe, without regard to the Mississippi statute’s allowance of abortions up to 15 weeks.

We cannot close without noting a passage in the draft opinion suggesting that there is no great harm from a state’s sudden decision to end abortion rights because “reproductive planning could take virtually immediate account of” an abrupt legislative ban.

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In case Justice Alito hasn’t noticed, not all sexual activity is scheduled. Nor are pregnancies planned that are the result of rape, for which no exception is made in an increasing number of anti-choice bills around the country.

We should not be distracted by the rare leak of a draft Supreme Court decision. Unusual actions often occur in response to extreme events. And so it is with the bloody deed of killing Roe that appears to be on the horizon.

That more than 70 percent of Americans now favor protecting a woman’s right to choose suggests just how out of step overturning Roe will be.

In November, voters should let their Senators know that they will not stand idly by and accept rule by five or six people in black robes. But we need also to recognize that the effort to tame the Supreme Court’s radicalism and determination to impose its will on America may well involve what Brownstein calls a “decades long struggle.”

Those who believe in America have shown before that the task is worthy, and we are up to it.

Austin Sarat (@ljstprof) is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. The views expressed here do not represent Amherst College. He is the author of “Lethal Injection and the False Promise of Humane Execution.”

Dennis Aftergut is a former federal prosecutor, currently of counsel to Lawyers Defending American Democracy.

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