Whoever leaked the draft of Justice Alito’s opinion in the Dobbs case overruling Roe and Casey hoped to limit the damage of this radical draft. That’s my hunch at least: the other guesses are all over the place. It’s unlikely to work but what the hell did a pro-Roe/Casey leaker have to lose?
The country as a whole has much to lose, especially American women. Once the courts start taking rights away, you’re sliding down that proverbial slippery slope. The right to privacy established in Griswold could be next.
I’m angry about this potential ruling but I’m going to contain my rage and write from a legal, historical, and political perspective. There will be plenty of anger to go around this week. I predict Cassandra may pop her cork tomorrow morning.
The fact that a SCOTUS majority made up of Federalist Society bots is willing to throw caution to the wind and overrule a 49-year-old precedent is NOT surprising. But I expected the male justices to cower behind the skirts of Justice Amy Coney Barrett. It appears that Chief Justice Roberts is on the fence so Clarence Thomas as the senior justice in the majority selected Samuel Alito to write. Thomas’ views are even more extreme than Alito’s so one would have thought the assignment would have led to more temperate opinion. It did not.
The Alito opinion is sneering, sarcastic, and triumphalist. No wonder Roberts hasn’t joined it. The Chief is likely willing to uphold the Mississippi law but decline to overrule Roe and Casey. It’s the judicial equivalent of leaving a body on the floor to let it slowly bleed out. The law in question is that bad. In a word: horrific.
Back to Alito’s tone. This is a good example:
“Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
If you think the country is divided on abortion right now, you ain’t seen nothing yet. There were protests in front of the Supreme Court building last night. I’m hoping the leak heard round the world will light a fire under the pro-choice majority in the country.
I’ve been frustrated for years by the relative apathy on the left about SCOTUS as a campaign issue, especially in 2016. The composition of the current court is in part a result of this apathy and Republican voters’ fervor on the subject. As to Republican politicians, this has been an exercise in cynicism as they’ve capitalized on and inflamed the anti-choice right since 1973. Does anyone think that Donald Trump is sincerely pro-life?
The right-wing majority is gunning for precedents in the line of cases in which Griswold, Roe, and Casey are pillars. These privacy cases include the rights of consenting adults to do what they wanna behind closed doors (Lawrence) and the relatively recent right to marry who you wanna, Obergefell. Senator Cornyn telegraphed this gut punch during KBJ’s confirmation hearings.
“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.””
The Casey opinion is an example of judicial modesty and genuine legal conservatism. It took account of the real-life impact of the Court’s opinions. Justice O’Connor was at heart a practical person who looked at the impact of the court’s rulings on the American people. That’s in stark contrast to the ivory tower arrogance of Alito:
“Roe certainly did not succeed in ending division on the issue of abortion. On the contrary, Roe ‘inflamed’ a national issue that has remained bitterly divisive for the past half-century….This Court’s inability to end debate on the issue should not have been surprising. This Court cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling the people to move on. Whatever influence the Court may have on public attitudes must stem from the strength of our opinions, not an attempt to exercise ‘raw judicial power.’”
Alito seems to think that the real-world implications of this egregiously terrible law are none of the Court’s business. I call bullshit on that. Alito wants to uphold a law that criminalizes abortion and makes no exceptions for rape, incest, or the life of the mother. It treats American women like they’re idiots who need Sam the Sham Alito to tell them what to do.
The good news is that Alito’s opinion in Dobbs, as bad as it is, will NOT make abortions illegal nationwide. It will, however trigger anti-abortion laws in two-dozen states including Louisiana. It will also make it possible for Congress to enact a nationwide ban. The stakes in the 2022 mid-terms just got much higher. A GOP majority in both houses of Congress could lead to such a proposal, which would be vetoed by President Biden.
I agree with Senator Sanders who tweeted this out:
Congress must pass legislation that codifies Roe v. Wade as the law of the land in this country NOW. And if there aren’t 60 votes in the Senate to do it, and there are not, we must end the filibuster to pass it with 50 votes.
— Bernie Sanders (@BernieSanders) May 3, 2022
I’d add Casey to the equation but when Bernie’s right, he’s right.
Republicans have told us for decades that they want judges who will not legislate from the bench or make new law. That’s precisely what Justice Alito’s draft opinion in Dobbs would do. True conservatives revere stare decisis. Sam the Sham’s opinion consigns stare decisis to the ash heap of history. There’s a special place in hell for anyone who supports this horrendous opinion in support of this inhumane and profoundly sexist law.
Justice Alito can go fuck himself.
There’s only one last word that works for this post and Harry Nilsson gets it.