Alito wants a fight and seems likely to have one
Alito obviously doesn’t care.
For years, on abortion, the conservative majority on the Supreme Court was divided by jugglers and brawlers. The jugglers, led by Chief Justice John Roberts, attempted to balance competing principles – a desire to revisit deer at the margins while respecting precedents and trying to preserve the mystique of oracular detachment on which, according to him, the legitimacy of the court depends.
The brawlers, led in this case by Alito, say to hell with that.
His draft opinion on Dobbs v. Jackson Women’s Health Organization — the case has not yet entered the national shorthand, What do you think of Dobbs?, but probably soon – has 98 pages of arguments and quotes. But its essence can be summed up in three words: Go for it.
Let’s stop pretending, he writes in spiky, vehement words he’s evidently been honing in his mind for decades, that wildly opposing views on the morality of abortion can or should be resolved through the courts. Recognize, he argues, that much of the language swirling around legal debate – Latin expressions like watch the decisionmedical concepts like fetal viability or gestational trimesters, etc. – is so much sophistry and an escape from the heart of the matter.
According to him, the crux of the matter is that there is no legitimate constitutional right to abortion and there never has been…”deer was patently wrong from the start” – and therefore the whole matter should be returned to the political arena. This is where one of the most intimate dimensions of human life can be debated in a loud, violent and angry debate, in the open air.
Even people who have worked for decades to preserve a woman’s right to decide for herself whether to have a pregnancy might agree that there is something neat and unassuming about where a majority of the Supreme Court seems ready to go. In recent years, many of these activists — seeing the legal foundations of deer gradually eroding – voiced their own version of Alito’s argument: OK, so you want a political fight? Let’s go.
Historically, many abortion rights supporters have believed that bringing this debate out into the open – and on the ballot – at a time when the stakes are undeniably clear is a winning proposition for them. The logic is that anti-abortion activists are always focused and hyper-engaged, while the broader majority who support abortion rights will often organize and vote on the issue when they feel their rights are under threat. imminent way.
A related argument is that Roe vs. Wade had the opposite effect of what many of its supporters wanted. Instead of removing the issue from politics, a backlash in the courthouse fueled a new conservative movement in the 1970s. It may even have inhibited the process by which political debate in the states was gradually leading to more liberal laws and perhaps to a more lasting consensus on the right to abortion. In some moods, feminist legal pioneers like the late Justice Ruth Bader Ginsburg explored this possibility. Alito, almost sardonically, quotes her from 1992 (a year before joining the high court) on how deer may have “protracted divisions” and “deferred stable settlement of the matter”.
It’s not the most relevant angle of the story – not compared to the tangible and real effect on individuals if the draft opinion or something close to it is what the Supreme Court decides in its official ruling. in the coming weeks – but it should be noted that there is obviously some sort of crude principle in Alito’s thinking.
He clearly has strong ideological views, but that makes it harder to make an accusation of partisanship — especially if Democrats are able to rally voters around abortion rights.
Compare this case, for example, to the case of 2000 of Bush versus Gore. Then a small majority of Republican-appointed justices seemingly put partisanship above legal principles when they ignored their own pious sermons on narrow interpretation of the Constitution to invent an ad hoc justification that awarded an election. contested presidential election to George W. Bush.
Alito doesn’t seem guilty of this kind of hypocrisy. His eagerness to attack Roe vs. Wade This has been evident since he joined the court in January 2006. He seems quite sincere when he writes in the draft that judges should not be “affected by outside influences such as concern about the reaction of the public to our work”.
Loyalty to one’s own principles seems closely tied to another trait that jumps out at his draft. He presents himself as a controversial and self-confident loudmouth. Many passages sound less like a formal court ruling and more like the argumentative tones of a parent getting carried away at Thanksgiving – Should we talk politics over dinner? – or the guy at the next table in a neighborhood tavern – Sir, would you mind dreadfully lowering your voice a little?
His draft vibrates with contempt. The arguments advanced in the earlier abortion cases are not only misplaced but “very weak”, just as deer was not only wrong, but “extremely wrong”. He does not stop to say that there was not much support for a constitutional right to abortion until the second half of the 20th century, he adds: “Zero. Nothing.”
Those brawling instincts were apparently compelling — at least in the privacy of Supreme Court chambers — for four colleagues who voted with him: Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. It should be remembered that a draft opinion is a draft: Some of these people may, upon reflection, decide that they would rather try to continue juggling the abortion for a while. This would lead to a more modest final opinion, which contrasts Roe vs. Wade but postpones the fateful confrontation that Alito so desperately wants.
Whatever happens, however, the self-confidence of his jurisprudential mind is now part of the public record. This begs the question: What makes him so sure of himself?
The draft opinion is replete with references to the benefits of entrusting a complicated moral issue to political debate in 50 states. But nothing prevents the nationalization of the debate at the congressional level – banning abortion everywhere if the Republicans choose to do so with a narrow majority the next time they take control of Congress, or the reverse when the Democrats are the controls.
Alito says none of the arguments in his decision will affect current marriage or birth control law. But he can hardly declare this by decree, since some of these rights are based on the same legal principles and precedents that have underpinned Deer. The idea that abortion will henceforth fall primarily within the political rather than judicial branches seems unlikely. While some states are correct in saying that abortion is tantamount to taking a human life, lawsuits with plaintiffs that all fetuses in all states enjoy the same constitutional protections are inevitable.
Citing sources ranging from Abraham Lincoln to 20th-century philosopher Isaiah Berlin, Alito reflects on the 14th Amendment’s reference to “freedom” before lecturing, “We must guard against the natural human tendency to confuse what the amendment protects with our own ardent views on liberty”. that Americans should appreciate. But nothing in the draft notice indicates that Alito applies these caveats to himself.
Bring him means bring him. Neither Alito nor anyone else can be sure what will come next and where it will lead.