A carefree majority | David Cole
The conventional wisdom is that you cannot judge a Supreme Court Justice by their early years on the Court. There’s nothing that really prepares you for the incredible power – and responsibility – of a Supreme Court justice. Judges usually take a while to find their feet and move forward slightly as they grow into the role.
That’s not the case, however, for the three Trump-appointed justices — Amy Coney Barrett, Brett Kavanaugh and Neil Gorsuch — who have served on the court for one, three and five years, respectively. If the leaked draft opinion of Judge Samuel Alito in Dobbs v. Jackson Women’s Health Organization judge, the three of them 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 destinies, and which has been going on for a half-century.
There are plenty of reasons a new judge might pause before voting to support such a sweeping outcome. A majority of the Court for five decades has applied and reaffirmed deer v. Wade. Thirty years ago, the Court rejected an explicit request to set aside deeremphasizing the particular importance of watch the decision and the centrality of the right to equal status of women. The fact that President Donald Trump promised to appoint judges who would overthrow deer could also give a break. Such litmus tests politicize the court, and the court’s legitimacy hinges on standing above the kind of raw politics that Trump reveled in.
But these are only jurisprudential concerns. One might also expect a judge to hesitate in light of the disastrous consequences the decision will have on at least half the nation, which will suddenly lose the right to make one of the most difficult decisions for itself. important things a person can take – whether or not to have a child. And while all women will lose this right, the loss will be felt immediately by the 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 exactly what their nominator wanted and voted to overturn. deer completely, eliminating any constitutional protection of the right to abortion. The decision is not final, and it is not uncommon for judges to change their minds when faced with the precipice of a dramatic decision. In fact, this is apparently what happened when the Court upheld in 1992 deer in Southeast Pennsylvania Family Planning v. Casey; Judge Anthony Kennedy was initially the fifth vote to overturn deer, but ultimately voted to reaffirm it instead. However, changing your mind in public is more difficult than doing so in private, so the leak makes such a change less likely.
On the other hand, there is so much evil in the draft opinion that perhaps some justice will come out of it. I will focus on three points only. First, Justice Alito’s draft argues that there is nothing wrong with overturning constitutional precedent because some of the Court’s most famous opinions have done so. Brown v. Board of Education overturned the “separate but equal” doctrine announced in Plessy v. Ferguson. West Virginia Ed. v. Barrettewhich argued that public school children cannot be compelled to salute the flag against their religious scruples, reversed a contrary ruling three years earlier. Gideon v. Wainright, which extended the right to counsel to indigent defendants, reversed the precedent that such a right did not exist.
In fact, Alito cites about 30 decisions in which the Court overturned case law. But what is striking about his list is that the vast majority of decisions have made it to to expand rights. A handful of watered-down rights protections, but none eliminated quite a right. Alito asserts that west coast hotel v. Paris, a 1937 notice, removed one right, the “freedom of contract” of business owners. But the real effect of that ruling was to restore the rights of millions, reversing a constitutional doctrine that had struck down hundreds of state and federal laws protecting consumers and workers from abusive business practices. Alito’s long list of quotes, beginning with Brownonly underlines how much Dobbs will be if it eliminates a long-recognized right.
Second, the implications of Alito’s reasoning are staggering and not limited to abortion. He argues that the Court should only protect rights that are not expressly specified in the Constitution if they are “rooted in the history and tradition of our nation.” But virtually all of the constitutional rights we enjoy today are greater than those recognized by “history and tradition.” Indeed, the drafters have used such open terms as “freedom”, “due process” and “equal protection” to allow and even invite such an evolution.
If Alito’s mandate to reduce rights to those they enjoyed in 1789, when the Bill of Rights was passed, or even until the late 1800s, when the Civil War Amendments were added, was carried out, many of the rights we take for granted would be in jeopardy. When drafted, no one thought the First Amendment protected subversive speech or “seditious libel,” which the Fifth Amendment guaranteed. Miranda warnings, or that the Sixth Amendment gave indigent defendants counsel at state expense. The Equal Protection Clause did not prohibit sex discrimination or racial segregation when it was signed into law in 1868. Nor did the “liberty” protected by the Due Process Clause include the right to use the contraception, or to choose one’s sexual partner or spouse, regardless of sex or sex. race.
Alito says abortion is different because it “destroys… ‘potential life'”. But this distinction has no logical connection with Alito’s reasoning. The rule he announces is that rights not specifically mentioned in the Constitution will only be recognized if they are rooted in history and tradition, not that rights which impede potential life are so limited.
Finally, to call Alito’s assessment of the decision’s consequences for women cavalier would be charitable. He rejects the argument that banning abortion discriminates on the basis of sex by citing one of the Court’s most absurd decisions, Geduldig v. Aiello, in which Chief Justice William Rehnquist held that laws targeting abortion do not discriminate on the basis of sex because not all women are pregnant. This syllogism, which Congress later rejected by defining sex discrimination to include pregnancy-related discrimination, blithely ignores the fact that almost 100% of those seeking abortion are women and that the right controlling their reproduction is central to the equal status of women in society.
Along the same lines, Alito sidesteps concerns about the “trust interests” of those who grew up protected by the law. The rules governing watch the decision direct the Court to consider whether the company has come to rely on precedent. Alito raises his hands and says we just can’t know if women have relied on the fact that they can plan their lives, families and careers without fear that an unwanted pregnancy will force them to have a child . Really? How could anyone doubt it?
Given these obvious weaknesses, it’s possible that one or more of the judges who initially voted to join Alito had second thoughts and instead sided with a more moderate but still worrisome position that would have been pressed by the judge in Chief John Roberts, who could uphold the Mississippi ban. on abortions after fifteen weeks, but without completely eliminating this right. If, on the contrary, the Court sticks to this result, it will be the work of a truly radical majority, that which is ready, by a brutal exercise of power, to withdraw from half the country one of the most more important than it enjoys.