The Supreme Court Is Confident It Does Not Need the Will of the People
This article is the first in a two-part analysis of the recently leaked Supreme Court draft opinion for Dobbs v. Jackson Women’s Health Organization. Read Part One here.
Review of the Circumstances
With Supreme Court Chief Justice John Roberts confirming the authenticity of a leaked draft opinion reported by POLITICO appearing to overturn the Court’s seminal ruling in Roe v. Wade (1973), the political spotlight has again focused on legal challenges to reproductive rights.
While it does not necessarily represent the final opinion that the Court will release in June, the draft opinion in Dobbs v. Jackson Women’s Health Organization nonetheless suggests that Justice Samuel Alito — and at least four other Justices — intend to repudiate the right to privacy encompassing abortion identified in Roe v. Wade (1973).
The Justices’ reasoning in Dobbs is just as notable as their decision.
Understanding the rationale behind repealing a previously recognized right — a significant action rarely taken in the Court’s history — provides insight into the harm of the potential Dobbs decision overall. Upon closer examination, the reasoning of the draft opinion appears to be flimsy and potentially dangerous in a nation in which a diverse majority of its citizens support the right in question.
According to the draft opinion, Alito’s first argument against Roe is that the Constitution “makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.” Second, the right to an abortion is not “deeply rooted in the Nation’s history and traditions.” Both of these assessments are flawed, however. Notwithstanding the conservative Justices’ fairly public views on abortion, which are inconsistent with the majority public view, the constitutional arguments undergirding this draft opinion do not align with the mainstream judicial understanding of the Constitution. Instead, the draft ignores settled constitutional precedent and general political and social trends in views on abortion to argue for an anachronistic, originalist interpretation of abortion rights. This article will discuss the second of Alito’s two argumentative shortfalls: his ignoring of social and legal trends on abortion rights.
The “History and Traditions” Argument
Regardless of race, gender, age, income level, or even religion, the majority of Americans support legal abortion in most or all cases and have for decades. It has the support of even most moderate Republicans. The only demographic groups that oppose legalizing abortion are white Evangelical Protestant Christians, who make up 30% of white Americans and 17% of all Americans, and conservative Republicans, who make up 34% of Americans and are majority white and 40% evangelical.
These percentages are noteworthy because Justice Alito has chosen to disregard them.
Fundamental to Alito’s draft opinion of Dobbs is his belief that rights not expressly guaranteed by the Constitution must therefore be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Essentially, Alito argues in favor of an originalist interpretation of the Fourteenth Amendment.
Originalism attempts to discern what the text of the Constitution meant when it was written, using dictionaries, correspondences, and contemporary arguments from when the law was being debated and drafted. Robert Bork, a prominent judge and constitutional scholar, said that originalism is an “inference from the structure of government apparent on the face of the Constitution.” Alito utilizes this understanding in his interpretation of the Fourteenth Amendment.
From his interpretation, Alito argues that Roe v. Wade miscalculated the extent of Fourteenth Amendment protections. The Court in Roe extended the “penumbra” of protections to privacy — namely, the private decision between a person and their doctor to terminate a pregnancy. This extension, he argues, was outside the scope of the Court since the privacy right it established did not exist in the Constitution. But secondly, the Nation’s “history” also did not reflect a need for federal abortion protections. The country’s existing abortion rights were, in his words, “entirely unknown in American law.” Most states made abortion a crime “at all stages of pregnancy” around the Fourteenth Amendment’s adoption in 1868. Therefore, there was no legal belief at the time that the Constitution included abortion in that “penumbra” of constitutional protections.
He concludes that abortion is so dissimilar to other rights in past decisions, and has such poor legal history, that a case upholding it as a right is an “abuse of judicial authority.” But Alito relies on a shaky definition of “history and tradition” — a definition which fails to hold up with other cases the Supreme Court has unanimously ruled on.
Why Alito’s Argument Fails
Consider the constitutional issues concerning marriage choice. The Constitution does not mention interracial marriage, but the Supreme Court felt it necessary to intervene on a federal level because the case was so pressing and the consequences of a “state by state”-based ruling particularly severe. In Virginia, the penalty for violating anti-miscegenation laws in the state was one year in jail. The Lovings, an interracial couple, violated this ban and needed a judge to suspend the sentence. Even so, the state required them to leave Virginia for 25 years.
This ban was not unique to Virginia. Only nine states have never had anti-miscegenation laws; sixteen states still had anti-miscegenation statutes in their books when the Court ruled on Loving v. Virginia (1967). These facts meant that in 1967, a third of the country legally prohibited interracial marriage. Even three years after the Civil Rights Act, the inaction of the federal legislature on interracial marriage led to the Lovings going through the court system.
Alito argues that the United States’ “history and traditions” pertain to rights not guaranteed in the Constitution. Therefore, by his argument, since the country “traditionally” believed that interracial marriage should be prohibited, the Court should have upheld the Virginia statute.
That decision would not bode well today in a country where 17% of marriages are interracial. This understanding holds for Roe and its precedent. The argument that unenumerated rights must reflect the Nation’s “history” and “traditions” is an anachronistic one and one that the Supreme Court has refuted in multiple cases of Roe’s nature. Decisions like Brown v. Board of Education (1954), Loving v. Virginia, Obergefell v. Hodges (2015), and Planned Parenthood v. Casey (1992) were not in line with United States history yet are all considered precedential — and in some cases, unanimous — decisions that are incredibly difficult to overturn. In particular, Casey affirmed Roe’s constitutional protection of privacy in abortion, and the Court compelled states to preserve the right.
If Alito’s reasoning in the Dobbs leak sounds familiar, that is because it is. In 2013, the Supreme Court invalidated a section of the Defense of Marriage Act in United States v. Windsor. The Court argued that the Section, which denied federal recognition of same-sex marriages, violated the Due Process Clause of the Fifth Amendment. Alito’s dissent in the case advanced the same arguments for why the Court should not have invalidated DOMA: same-sex marriage is controversial and not “deeply rooted in American tradition,” the Constitution does not enumerate a right to same-sex marriage, and therefore “decisions about the recognition of same-sex marriages should be left to states.” But if the Supreme Court struck down the act as unconstitutional because there is no legitimate state interest in denying federal recognition of same-sex marriages, the same should be said of denying federal recognition of the legality of abortion.
Moreover, Alito’s arguments regarding abortion rights (and same-sex marriage rights before it) are the same arguments that would be consistently against the ruling in Loving v. Virginia. Thus, Alito could not overturn Roe and Casey with his constitutional reasoning without also opposing Loving. This damaging revelation directly rejects decades of legal consensus, which recognized anti-miscegenation as “a shameful chapter of American history.”
Since the Supreme Court unanimously ruled that the Virginia statute was unconstitutional, one should also see Alito’s attempt to overturn Roe as such. A time of severe racial division preceded the Loving decision, but that does not negate the importance and timeliness of the decision. The Supreme Court considered the right in question “elementary” and fundamental. It has interpreted Roe’s protections similarly. State lawmakers are debating abortion restrictions, but the Court has ruled for fifty years that no state can deny the constitutional protections laid out in Roe and Casey.
Why Originalism Does Not Work with Dobbs
Alito and the potential Court majority are out of step with the country’s current desires. They believe that by overturning Roe, they are “return[ing] … authority to the people and their elected representatives.” But today, as legal scholars argue for maintaining Roe, and as abortion choice continues having prominent support, states are using undemocratic means to thwart accepted constitutional rights. What is the role of the Supreme Court if the people oppose what many of their representatives are pushing?
The Court appears confident that it does not need the will of the people to factor into its decision-making. But its originalist interpretation contrasts with previous Courts’ understandings of both the democratic process and the rule of law. In similar situations, judges have taken more holistic and pragmatic approaches to difficult legal decisions. Justices like Harry Blackmun and William Brennan believed that eroding rights that the Constitution did not expressly protect created consequences significant enough to damage the rule of law. Therefore, those rights required federal legal protection through the Supreme Court rather than being handled by state governments. Justice Alito must make a similar decision for a constitutional right that an originalist finds vague but a pragmatist finds evident.
The consequences of a judicial mistake are too risky for a court as ideologically motivated as the current one. The Justices are applying originalism and history to their draft opinion to claim impartiality, but originalism is, in actuality, a revolutionary constitutional theory that intentionally upends current understandings of the law. By reverting to the original intention of the Constitution without regard for current-day consequences, the majority Court denies the will of the people and precedent and ignores the damage the decision will cause.
There is social and legal acceptance for the legalization of abortion, and maintaining that right keeps the United States in line with its recent history and policies around the world.
Originalist judges could not decide the same on landmark cases as unmistakable as Brown v. Board. Non-originalism, on the other hand, allows the Constitution to evolve. These decisions “match more enlightened understandings on matters” such as the equal treatment of women. That is not to say that originalism has no place on the Supreme Court; it is a restraining tool that is better suited in certain times and situations. But Dobbs is not one of them.
Nonetheless, the Court majority appears confident in its ability to navigate the potentially disastrous implications of reversing a half-century precedent and the ensuing political and societal tensions. It is the unfortunate culmination of decades of conservative efforts to undermine the rule of law in the United States. To be clear, the Justices alone did not plan the political ploy—their appointers did. The Justices merely carried out their duties, and now they must watch the crisis in judicial legitimacy that Chief Justice Roberts and the Supreme Court have long been concerned about.