2 years ago
If the draft majority opinion by Justice Samuel Alito disclosed by POLITICO Monday night is any guide, the constitutional right to abortion has only a few days or weeks left to go. The most conservative majority of the Supreme Court that was, already a decade ago, arguably the “most conservative in modern history” has singled out Roe for excoriation and oblivion. But what marked out Roe to this fate, and not many other decisions? It is not the reasons provided in the draft Alito opinion: The explanation for Roe’s demise is to be found not in law, per se, but in the court’s entanglement in our pernicious moment of partisan hyperpolarization and the Republican Party’s inextricable link to anti-abortion politics.
Chief Justice John Roberts has acknowledged the document is authentic, and its style certainly suggests it is indeed by Alito. So, how does his rationale for overturning Roe stack up as a justification for a large, and likely convulsive, change in American society? The reasons flagged by the draft opinion fall painfully short. In fact, their profound weakness highlights precisely why Roe and abortion rights have been singled out. Go down the list of contentious legal questions, and it quickly becomes clear that conservatives do not follow Alito’s approach anywhere else besides Roe.
For instance, the draft majority opinion spills a good deal of ink on the history of abortion regulation in England and the United States (skimming over, as it does it, the considerable periods in which abortion was left to the free choice of women). But precisely this kind of appeal to a history of close regulation can be made in respect to the Second Amendment right to bear arms. As the legal scholars Reva Siegel and Joseph Blocher documented in extensive detail, there is a “centuries” old tradition of common law rules regulating weapons, especially when they are carried into the public sphere. This has not stopped the conservative justices from creating a novel individual right to bear arms and extending that right against both the federal and the state governments.
Next, the Alito opinion spends a good deal of energy shellacking the reasoning of Justice Harry Blackmun’s 1972 opinion in Roe v. Wade. The opinion, says Alito, is “hard to defend” and “egregiously wrong.” But by the very standards that Alito himself brings to bear, there are many opinions that are so “egregiously wrong” that they should be chucked out. And yet they awake nary a peek from our most conservative of courts.
To see this, it is helpful to see why Alito says Roe is wrong. The core of Alito’s argument is the idea that the Roe Court defined the “liberty” protected by the 14th Amendment at too high, and too abstract, a level of generality. It is, in other words, unanchored from the text of the Constitution. But let’s say we took seriously the idea that the court should avoid readings of the Constitution pitched at too high a level of generality, and not anchored in the text of the Constitution. What else would have to go?
The first thing to go would be the Roberts Court’s rulings on the so-called removal power of the president to oust agency heads, which has been used to attack the regulatory state. Next to go would be the court’s rulings that an ambient, unwritten principle of “state sovereign immunity” precludes all sorts of damages claims against the federal government. This despite the fact no such principle is mentioned in the Constitution. Ironically, Alito himself authored one such opinion almost exactly a decade ago. And third, consider all of the court’s campaign finance opinions: They interpret the word “speech” in the First Amendment at a highly abstract level to sweep in not just speaking but spending — a sleight of hand that would have seemed absurd in 1791.
Is the Supreme Court about to throw out its campaign finance jurisprudence, its special solicitude for the government’s purse, or raw presidential power? Don’t get your hopes up.
There’s more, but it’s embarrassing in its meagerness. Abortion, Alito says by way of example, is just different from other fundamental rights — including the right to marry and the right against involuntary sterilization — because it raises a “critical moral question.” The suggestion here is that miscegenation laws and state eugenics programs raise no “critical” moral issue. This is worse than absurd; it’s morally obscene.
The reasons Alito himself gives, in short, for singling out Roe cannot explain the decision to overrule that case. All apply equally to opinions that Alito and colleagues have embraced and enforced with vigor.
So what then is going on? The answer is embarrassingly clear. When Alito cautions against the injection of the justices’ own “ardent views” into the law, he skips over a fateful step. The problem with Roe and the draft Dobbs opinion alike is not that they are tainted with the tincture of the justices’ own views. Of course they are: Just notice Alito’s loaded pejorative talk of “abortionists” if you were doubtful on this score.
No, the problem is that the sole explanation for the disparate anger and disdain targeted at Roe is that that right to abortion has been the ardent target of key factions within the Republican Party for years. And the untimely death of Justice Ruth Bader Ginsburg allowed former President Donald Trump to deploy judicial appointments to deliver Roe’s execution notice in late 2020. When Justice Sonia Sotomayor pointed this out at oral argument in Dobbs, she was only stating what every single participant in the confirmation battles of the last several years well understood, and only the willfully blind could deny.
Indeed, what is striking about the modern Supreme Court is not so much that its members have “ardent views” but that those views reflect the immediate priorities of the Republican Party. Abortion, of course, is central to key religious elements of the Republican coalition, and thus an election issue of singular importance. But to make my point, a non-abortion example may be helpful: Until the Obama presidency, there was broad agreement among both liberal and conservative justices over the idea that courts should generally give federal regulatory agencies a great deal of leeway. But in 2016, the Republican National Committee included in its platform item an attack on such deference. In short order, the legal historian Craig Green has demonstrated, the attack was taken up by conservative think tanks, and then by conservative justices. On this issue, as on abortion, the arguments professed as law have nakedly partisan origins.
The tight linkage between the Republican Party and the conservative faction of the Court is not distinctive to these issues. But it is without precedent in recent American history. Political elites have long sought to appoint fellow travelers to the bench. But the present moment is fundamentally different because of the extraordinary combination of once-in-a-century partisan polarization with the unprecedented growth of an ecosystem of Republican interest groups and academics that have the justices’ ear.
Ironically, one of the reasons that Alito gives for killing Roe is that it had “damaging consequences.” Although the reader is left to guess what Alito thinks he’s talking about here, the very same can and will be said of this Dobbs opinion: It will serve as a proof text that this is no longer the Roberts Court; it serves quite another master.
English (US)