Under a proper social system, a private individual is legally free to take any action he pleases (so long as he does not violate the rights of others), while a government official is bound by law in his every official act. A private individual may do anything except that which is legally forbidden; a government official may do nothing except that which is legally permitted.
This is the means of subordinating “might” to “right.” This is the American concept of “a government of laws and not of men.”
…We are fast approaching the stage of the ultimate inversion: the stage where the government is free to do anything it pleases, while the citizens may act only by permission; which is the stage of the darkest periods of human history, the stage of rule by brute force.
-Ayn Rand, The Nature of Government
Well, in actual news this week, somebody decided to leak Samuel Alito’s draft opinion on Thomas E. Dobbs et al v. Jackson Women’s Health Organization, which political observers predicted was going to be the case where the conservative majority finally got rid of the Roe v. Wade right to abortion one way or another. The text indicates that this is not merely a technical restriction of abortion rights but an active assertion that no such rights exist.
This has made a lot of people very angry and been widely regarded as a bad move.
Alito passes over certain legal justifications for an abortion right, such as the Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Which among other things would flip the argument: Not, why is there a right to abortion but why is there a state interest in preserving a pregnancy prior to fetal viability? But he says that the Ninth Amendment was not the basis of pro-choice arguments and points to the Fourteenth Amendment’s Due Process Clause regarding its Section 1. He then asserts that such pro-choice rulings did not establish that a right to abortion was confirmed by the Fourteenth, even as he goes over how it applies in other cases.
Alito points out that while there had been no asserted right to abortion in national law prior to Roe, 30 states still prohibited abortion at all stages. As though the Roe case were not about addressing that fact, going on from Section V, and whether such laws should be valid or whether the Court should assert a different standard. In Section B of his opinion, Alito pronounces “Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion.” As if emotional emphasis were necessary, he follows by saying, “Zero. None.” Apparently the fact that a right did not exist prior to being asserted by the government, as if that were not the reason cases are taken to court, means that such a right cannot exist. After all prior to the Fourteenth Amendment, what support was there in American law for the belief that a Negro had more than three-fifths the value of a human being?
The gist, highlighted in the Politico article, is on page 4: “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely – the Due Process Clause of the Fourteenth Amendment.”
Truly, the implications of such a ruling are staggering and encompassing. So encompassing, in fact, that I am not sure the author himself is aware of them.
Here are several other words that are mentioned nowhere in the main Constitution or the Bill of Rights: Homosexual. Heterosexual. Machine gun. Semi-automatic. Internet.
By Alito’s Solomonic approach to “strict constructionism”, some liberal justice could at some point assert that the Constitution does not protect a citizen’s right to semi-automatic weaponry or certain types of ammunition, because the Constitution doesn’t specifically protect them, and smirkingly cite Alito’s opinion in their reasoning, just as Alito smirkingly refers to Ginsburg and Blackmun in his reasoning.
Basically, the premise of this decision only works if the Right assumes that the Left won’t end up commandeering the legal system in the blatant and partisan manner that they have. Which is a laugh given that most of the reason for “conservative” bad-faith arguments against the Left is the manic fear that liberals will take over government and do to conservatives what they’ve been doing to the rest of the country all along.
It should be telling that conservatives’ main reaction was neither opposition nor support of the decision so much as shock and indignance that the decision was leaked and “decorum” was violated. After all, that’s more important than human rights. You would think that if abortion is so terrible and the need to protect life is so sacrosanct that they would be rushing to release the news as soon as they could, or perhaps they did and suddenly found out that other people didn’t like it.
It’s almost as if Republicans think that the purpose of government is to act explicitly against the will of the public.
Some commentators thought this leak was some “last-ditch effort by the Left to stir up yet another culture war in the hopes it can save them from utter obliteration in November.” (In which case, Mission Accomplished.) Some thought this was more a conservative attempt to shore up a wobbly conservative justice who might possibly back off of Alito’s opinion. I don’t think so. You already have Justice Thomas who if anything is more reactionary than Alito, and then you have the three Justices that Viceroy Trump appointed, implicitly and explicitly to take out Roe v. Wade. They would not have a draft listed as a Court opinion if there was not a solid majority behind it. It’s been pointed out that after Chief Justice Roberts, Clarence Thomas actually has seniority among the conservative justices and therefore he would have had first right to pen the decision. The fact that Alito took it up meant that an internal deliberation was already made. And the fact that his language directs to strike down Roe and Planned Parenthood v. Casey (when the Dobbs v. Jackson case in question does not specifically require it) seems to indicate that Alito doesn’t particularly care what anyone thinks of the opinion or has any fear of defections. As he says, “We cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work.” I’m sure King George III would agree.
Perhaps the leak was some clerk or Court insider who might actually be pro-life in broad terms and against widespread legal abortion but who is also conservative in the practical sense and realizes that pushing the issue too hard in one direction will lead to a radical backlash and a liberal effort to undermine the entire conservative project in the same way that the radical Right sought to undermine the previous legal tradition immediately after Roe v. Wade. And given the changing demographics of this country it is hard to say that such an effort would not succeed.
And then ask yourself who such an insider might be.
Perhaps this was said moderate conservative’s attempt to say: Are you SURE you want to do that?
Are you SURE you want to do that?
Samuel… Samuel… Are YOU SURE you want to do that?
I am not a huge fan of Kant’s Categorical Imperative, because it leads to taking absurd hypotheticals to impractical levels, but if one is determined to assert an absurd hypothetical, it is still a good rule for determining the consequences of treating your desire as a universal law. At one point Alito said “We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision.” This is of course an attempt to pretend to objectivity and to wash one’s hands of consequences for a decision that are likely if not inevitable. One could argue, as many scholars over the years have, that Roe v. Wade was ambiguous in its reasoning and difficult to defend. One could argue, as Rehnquist did in his dissent with the original decision, and as Alito does now, that federally the decision ought to be state by state. And federally, it should be the Congress’ power to determine the protections of the federal government, rather than having the Supreme Court making the decision for them and “legislating from the bench”, as conservatives put it in 1973.
There are of course reasons why that did not happen and why Roe lasted as long as it did. The Politico article quotes: “In the main opinion in the 1992 Casey decision, Justices Sandra Day O’Connor, Anthony Kennedy and Davis Souter warned that the court would pay a “terrible price” for overruling Roe, despite criticism of the decision from some in the public and the legal community.
“While it has engendered disapproval, it has not been unworkable,” the three justices wrote then. “An entire generation has come of age free to assume Roe‘s concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions; no erosion of principle going to liberty or personal autonomy has left Roe‘s central holding a doctrinal remnant.”
Whatever philosophical matters concern the status of unborn life, when the state gets involved in the matter the practical result is to assert that the rights of a woman to her own body are trumped (so to speak) by the existence of a pregnancy.
(Alito, incidentally, had previously said that the government’s pandemic policy led to “previously unimaginable restrictions on individual liberty.” While he was busy citing all the cases in which abortion was not guaranteed and a state’s right to prohibit abortion was a precedent, he could have looked up all the restrictions on individual liberty that government imposed over the Spanish Flu.)
On Facebook, writer Thomas Clay posted: “All women in the United States are now second class citizens who do not get to enjoy the bodily autonomy we grant a corpse because we still respect the right of a corpse to keep its organs.” You basically have a situation akin to the build up to the Civil War in which some states were “slave” and some were free, but the divider in this case is genitalia and childbearing age rather than racial origin. Although some would argue it’s not much of a difference. While in the abstract it might be better to leave the matter to the states, “conservatives” like Alito and Thomas elide the point that their decisions do not have an impact only in the abstract. It is a good question whether the state of Missisippi would have proffered its case, or whether Alito would have written this opinion, if a majority of state governments were pro-choice or if there was a US Congress motivated to federalize the provisions of Roe.
And one of the reasons that old-time general conservatives, like O’Connor and Kennedy and to some extent Roberts, were loath to mess with precedent even when it goes against moral conservatism is to preserve what one might call the mystique of their institution. Jack Shafer: “The court has long feared that if the nation knew how its decisions come together — if its members dared to wear human faces, if it appeared as anything but a sacred tribunal — its decisions would carry less weight. It’s that easy to lose the mystique built up for centuries. The POLITICO piece reveals a court-decision-in-process as a purely political document that aligns five conservatives against the court’s liberals and, presumably, the chief justice. That accurate portrayal might take decades for the court’s myth-makers to erase.”
We take the Court as Supreme not just because there needs to be a final authority but because that authority is supposed to be outside politics and a balance on the legislature and executive. The decisions of the Court are assumed to have an almost supernatural authority, as if they were written by God on stone with fire. And instead the bias displayed here reveals that any given Court decision has no real need for precedent or constitutional grounding, all you need is a grudge and four other justices to go along with you. And now that Democrats know this, they’re going to do everything they can to just shove through their agenda and shift the balance again, decorum and precedent be damned. And they need a bigger majority in Congress to pull that off. And since Republicans know that, they’re going to do everything they can to make sure they never lose elections anywhere they can help it.
Fortunately for them they have the courts on their side.
To cement that, Republicans would need to build up even bigger judicial majorities in the states during this year’s election to change the election laws for the next national election. And at that point Trump and McConnell’s court majority will be able to do for the 2024 Republican nominee what they did not do for Trump in 2020, perhaps because at the time they thought they wouldn’t be able to force the issue. But apparently now they think they can.
There’s only one thing that could stop that.
The next two elections are Americans’ last chance to determine their own future.
ACT LIKE IT.