Illustration by Vivienne Flesher
The conventional wisdom is that one cannot judge a Supreme Court justice by his or her first few years on the Court. There is nothing that really prepares one for the awesome power—and responsibility—that a Supreme Court justice holds. Justices typically take some time to find their feet, and tread lightly as they grow into the role.
Not so, however, for the three Trump-appointed justices—Amy Coney Barrett, Brett Kavanaugh, and Neil Gorsuch—who have been on the Court one, three, and five years, respectively. If the leaked draft opinion by Justice Samuel Alito in Dobbs v. Jackson Women’s Health Organization holds, all three will join in overturning one of the Court’s most important decisions of all time, a decision that protects the fundamental right of women to control their own bodies and fates, and that has stood for half a century.
There are many reasons a new justice might pause before voting to support such a radical result. A majority of the Court for five decades has applied and reaffirmed Roe v. Wade. Thirty years ago, the Court rejected an explicit request to overturn Roe, emphasizing the particular importance of stare decisis and the centrality of the right to women’s equal status. The fact that President Donald Trump promised to name justices who would overturn Roe might also give pause. Such litmus tests politicize the Court, and the Court’s legitimacy rests on its position above the kind of raw politics Trump reveled in.
But those are just the jurisprudential concerns. One might also expect a justice to hesitate in light of the disastrous consequences the decision will visit on at least half the nation, who will suddenly lose the right to make for themselves one of the most important decisions a person can make—whether to have a child. And while all women will lose the right, the loss will be felt immediately by those most vulnerable in our society—young women without financial means and in difficult family situations, disproportionately people of color.
And yet the leaked draft suggests that, at least initially, the three Trump-appointed justices did just as their nominator desired, and voted to overturn Roe altogether, eliminating any constitutional protection for the right to abortion. The decision is not final, and it’s not unheard of for justices to change their mind when they face the precipice of a dramatic ruling. In fact, that’s reportedly what happened when the Court in 1992 upheld Roe in Planned Parenthood of Southeastern Pennsylvania v. Casey; Justice Anthony Kennedy was initially the fifth vote to overrule Roe, but ultimately voted to reaffirm it instead. Changing one’s mind in public, however, is more difficult than doing so in private, so the leak makes such a shift less likely.
On the other hand, there is so much wrong with the draft opinion that maybe a justice will peel off. I will focus on just three points. First, Justice Alito’s draft maintains that there’s nothing wrong with overturning constitutional precedent because some of the Court’s most celebrated opinions have done so. Brown v. Board of Education overturned the “separate but equal” doctrine announced in Plessy v. Ferguson. West Virginia Bd. of Ed. v. Barnette, which held that public schoolchildren cannot be compelled to salute the flag against their religious scruples, overturned a decision to the contrary just three years earlier. Gideon v. Wainwright, which extended the right to a lawyer to indigent criminal defendants, overturned precedent that said no such right existed.
In fact, Alito cites some thirty decisions in which the Court overturned precedent. But what is striking about his list is that the vast majority of the decisions did so to expand rights. A handful watered down rights protections, but none eliminated a right altogether. Alito claims that West Coast Hotel v. Parrish, a 1937 opinion, did away with a right—the “liberty of contract” of business owners. But the actual effect of that decision was to restore rights to millions of people, by overturning a constitutional doctrine that had invalidated hundreds of state and federal laws protecting consumers and workers from exploitative business practices. Alito’s long list of citations, beginning with Brown, only underscores how unprecedented Dobbs will be if it eliminates a long-recognized right.
Second, the implications of Alito’s reasoning are astounding, and not limited to abortion. He maintains that the Court should protect rights not expressly specified in the Constitution only if they are “rooted in our Nation’s history and tradition.” But virtually all the constitutional rights we enjoy today are more expansive than those recognized by “history and tradition.” Indeed, the framers used such open-ended terms like “liberty,” “due process,” and “equal protection” to permit and even invite such evolution.
Advertisement
If Alito’s mandate to pare back rights to those enjoyed in 1789, when the Bill of Rights was adopted, or even to the late 1800s, when the Civil War Amendments were added, were carried out, many of the rights we take for granted would be in jeopardy. At the framing, no one thought the First Amendment protected subversive speech or “seditious libel,” that the Fifth Amendment guaranteed Miranda warnings, or that the Sixth Amendment gave indigent defendants a lawyer at state expense. The Equal Protection Clause did not prohibit sex discrimination or racial segregation when it was ratified in 1868. Nor did the “liberty” protected by the Due Process Clause include the rights to use contraception, or to choose one’s sexual partner or spouse regardless of gender or race.
Alito says abortion is different because it “destroys … ‘potential life.’” But that distinction has no logical connection to Alito’s reasoning. The rule he announces is that rights not specifically mentioned in the Constitution will be recognized only if they are rooted in history and tradition, not that rights that obstruct potential life are so limited.
Finally, to call Alito’s assessment of the ruling’s consequences for women cavalier would be charitable. He dismisses the argument that outlawing abortion constitutes sex discrimination by invoking one of the Court’s most absurd decisions ever, Geduldig v. Aiello, in which Chief Justice William Rehnquist reasoned that laws targeting pregnancy do not discriminate on the basis of sex because not all women are pregnant. That syllogism, which Congress rejected shortly thereafter by defining sex discrimination to include pregnancy discrimination, blithely ignores the fact that nearly 100 percent of those seeking abortion are women, and that the right to control their reproduction is central to women’s equal status in society.
To the same effect, Alito gives the back of his hand to concerns about the “reliance interests” of those who have grown up protected by the right. The rules governing stare decisis direct the Court to consider whether society has come to rely on a precedent. Alito throws up his hands and says we just can’t know whether women have relied on the knowledge that they can plan their lives, families, and careers without fear that an unwanted pregnancy will require them to bear a child. Really? How could anyone doubt this?
Given these evident weaknesses, it’s possible that one or more of the justices who originally voted to join Alito will have second thoughts and side instead with a more moderate but still disturbing position reportedly being pressed by Chief Justice John Roberts, which might uphold the Mississippi ban on abortions after fifteen weeks, but not eliminate the right altogether. If instead the Court sticks with this result, it will be the work of a truly radical majority, one that is willing through a raw exercise of power to take away from half the country one of the most important rights they enjoy.
