Alito’s Plan to Repeal the 20th Century
S E E D E D C O N T E N T
If you are an American with a young daughter, she will grow up in a world without the right to choose when and where she gives birth, and in which nothing restrains a state from declaring her womb its property, with all the invasive authorities that implies.
That is the significance of the draft Supreme Court opinion leaked to Politico , which shows that the right-wing majority on the Court intends to discard Roe v. Wade and Planned Parenthood v. Casey , landmark precedents guaranteeing the constitutional right to abortion. The justices can change their minds before judgments are issued, but their opinions are drafted after they’ve taken an initial vote on the cases themselves. The draft likely reflects the direction of the final decision, even if the scope of that decision changes.
The draft, written by Justice Samuel Alito, is sweeping and radical. There is no need to dwell too long on its legal logic; there are no magic words that the authors of prior opinions might have used in their own decisions that could have preserved the right to an abortion in the face of a decisive right-wing majority on the Court. The opinion itself reads like a fancy press release from a particularly loyal member of the GOP Senate caucus. Alito’s writing reflects the current tone of right-wing discourse: grandiose and contemptuous, disingenuous and self-contradictory, with the necessary undertone of self-pity as justification. Alito, like the five other conservative justices, was placed on the Court by the conservative legal movement for the purpose of someday handing down this decision. These justices are doing what they were put there to do.
Alito claims to be sweeping away one of the great unjust Supreme Court precedents, such as Dred Scott v. Sanford , which held that Black people had no rights white men were bound to respect, or Plessy v. Ferguson , which upheld racial segregation. But in truth, Alito is employing the logic of Plessy , allowing the states to violate the individual rights of their residents in any way their legislatures deem “reasonable,” as the opinion in Plessy put it . Homer Plessy’s argument was that the segregation law violated his Fourteenth Amendment rights, and that those rights should not be subject to a popularity contest in every state in the union; what Alito describes as a “restrictive regime” of constitutional protection for abortion rights is the kind of safe harbor Plessy himself sought.
In Plessy , Justice Henry Billings Brown held that Louisiana’s segregation law, as far as the Fourteenth Amendment was concerned, “reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and, with respect to this, there must necessarily be a large discretion on the part of the legislature.” Alito has now applied this same logic to abortion—but not just abortion—arguing that in the future, courts should defer to state legislatures “even when the laws at issue concern matters of great social significance and moral substance.” There’s no doubt that the Louisiana legislature felt the 1890 Separate Car Act was such an issue.
“ Plessy is, at its absolute core, a states’-rights case, in which the Court envisioned a notion of federalism so weak, so toothless, so bereft of substance that the federal government had no legitimate role in protecting Black people from states imposing racial segregation upon them,” Aderson Francois, a law professor at Georgetown University, told me. “This draft does the same thing: It envisions a notion of federalism so weak, so toothless, so bereft of substance that the federal government has no legitimate role in protecting women from states imposing forced births upon them.”
The implications of this ruling are therefore tremendous. Notwithstanding the reality that being a woman does not mean being pro-abortion-rights, all over the world the right to decide when and whether to give birth is tied to the political, social, and economic rights of women as individuals. That right is likely to be severely curtailed or to vanish entirely in at least 26 states if this decision takes effect. If the draft becomes the Court’s decision, however, it would have implications for more than just abortion. In the U.S., the rights of many marginalized groups are tied to the legal precedents established in the fight for abortion rights. This opinion, if adopted, provides a path to nullifying those rights one by one .
“The majority can believe that it’s only eviscerating a right to abortion in this draft,” Stephen Vladeck, a law professor at the University of Texas at Austin, told me, “but the means by which it does so would open the door to similar attacks on other unenumerated rights, both directly, by attacking the underpinnings of those doctrines, and indirectly, by setting a precedent for such an attack.”
Aside from rights specifically mentioned in the text of the Constitution, Alito argues, only those rights “deeply rooted in the nation’s history in tradition” deserve its protections. This is as arbitrary as it is lawless. Alito is saying there is no freedom from state coercion that conservatives cannot strip away if conservatives find that freedom personally distasteful. The rights of heterosexual married couples to obtain contraception, or of LGBTQ people to be free from discrimination, are obvious targets. But other rights that Americans now take for granted could easily be excluded by this capricious reasoning.
“In a series of cases beginning in the early 1920s, the Court carved out a protected space for family, marriage, and children that the government is constrained from regulating,” Kimberly Wehle wrote last December . “A rollback of Roe could split this sphere open if the conservative theory that implied rights are constitutionally invalid takes hold, and states begin passing draconian laws that creep into other areas of intimate personal life.”
The right-wing majority’s radical repurposing of the so-called shadow docket to set precedents and nullify constitutional rights rather than simply deal with time-sensitive matters foreshadowed this outcome. In the Court’s religious-freedom decisions related to the coronavirus pandemic, and in its choice last year to allow Texas to nullify the right to an abortion, you can see the outlines of this new legal regime: On the grounds that it constitutes a form of religious discrimination, conservatives will be able to claim an exemption from any generally applicable rule they do not wish to follow, while imposing their own religious and ideological views on those who do not share them. Although the right-wing justices present this rule in the language of constitutionalism, they are simply imposing their ideological and cultural preferences on the rest of the country. Roe itself left those opposed to abortion free not to have one; striking it down allows states to prevent those seeking abortions from obtaining them.
American life will now be guided by the arbitrary vicissitudes of conservative cultural identity, gleaned from Fox News , and by the justices’ inclination to shape their own views to conform to that identity. Aided by voting restrictions and partisan gerrymandering, the conservative movement will argue that its most coercive mandates have popular legitimacy, no matter how much of the country opposes them. If politicians are immune to popular majorities, they have no reason to heed them. But Republicans hardly need such advantages to prevail. One of the baffling mysteries of the past five years is why a movement so effective at the work of democracy is so dedicated to ending it.
An entire industry of commentators has tied its legitimacy to the Court, and they will obfuscate, semanticize, and quibble. These figures have long forestalled any backlash to the Court’s right-wing radicalism by muddying the waters about the significance of an appointment, a decision, a precedent. They have lied to the public, so that it does not realize what is being taken from it. In response to this decision, they will insist that the unprecedented leak is more important than the world the draft threatens to create. It is not.
Similarly, in his opinion, Alito writes that “we emphasize that our decision concerns the constitutional right to abortion and no other right,” and that “nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” Give this statement the same weight that should have been given to Alito’s scolding of the press shortly after the Court’s shadow-docket decision on the Texas abortion ban, and his insistence that it had no bearing on Roe and did not nullify the right to an abortion in Texas . Alito’s word means absolutely nothing.
“This is total gaslighting; he knows as well as anyone that these other rights are like Roe , rooted in the right to privacy. If Roe is imperiled because it is unenumerated and not ‘rooted in our history and tradition,’ then these other rights are also subject to challenge,” Melissa Murray, a law professor at NYU, said of Alito’s disclaimer. “Conservative lawyers are going to eat this up like catnip, and of course they are going to challenge these other precedents.”
The conservative movement has been working toward this victory for decades, and it has been made possible not simply by its determination and a few fortunate accidents, but by the haplessness of its opponents. Many in the center of the Democratic Party have been paralyzed by the belief that they might “do popular stuff” and coast to victory without having to get their hands dirty fighting the opposition , while its left-wing critics too often forget that democracy is an ongoing process, not a battle that ceases after casting the right vote once or twice. In both cases, the right has been fortunate in having opponents who argue themselves into complacency.
The overturning of Roe will create a backlash, although not necessarily one that today’s Democrats will profit from, given their aversion to conflict. A movement will eventually emerge to oppose the criminalization of abortion and the despotisms this draft would create, and perhaps some of its leaders are alive today. Whoever they are, they will understand, just as the right-wing activists who worked decades for this moment do, that the freedoms enjoyed by one generation can be stripped away by another.
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So far I have not pointed my hallux at a leaker, so without further ado, J'accuse Ginni Thomas!
But Hallux, the 20th century is history anyway, and it is what exists today that Alito is trying to repeal, i.e. the 21st century.
Maybe Breyer leaked it. After all, what are they going to do--impeach a retiring Justice?
This is the problem with the Supreme Court. At that level of legal discourse every argument sounds as good as the others. When the final ruling is given and Roe ended, the dissenting opinion will sound every bit as persuasive as the majority opinion. The difference being that one side will have one more vote (5-4) than the other. These things are not decided by brilliance of analysis but just by raw ideological adherence.
Maybe, but you claimed that cases are already decided before hearing arguments, so the arguments mean nothing if what you claim is true.
Except, the Supreme Court has already heard all the arguments and a majority of at least five has already voted that Alito write the draft majority decision. The wording may change somewhat between now and the release, but the court has definitely already decided based on arguments to overturn Roe VS Wade allowing states to outlaw all abortions beginning the day of that release...
Gee, I wish your post was responsive to what we were actually discussing.
So, move to Canada. It's not much different from the USA save that abortion is legal, health care is free and nobody is trying to restrict the rights of citizens to vote. City life is pretty well the same - same lifestyle, most same privileges (but more stringent gun controls), same TV, movies and entertainment, same everyday products, cleaner air, but tornadoes and hurricanes are extremely rare. In Toronto Blue Jays MLB, Raptors NBA basketball, NHL in big cities but football is a bit different. Montreal and Quebec are fairly cosmopolitan, and great skiing. High rating on the personal happiness index. Life expectancy higher and infant mortality lower than the USA. Excellent educational institutions - University of Toronto, McGill University and University of British Columbia are as good as most of the best American universities, a Supreme Court of Canada that is non-partisan where judges are not chosen by political parties, but nominated and appointed on the basis of legal and judicial excellence after being vetted and the advice of the Canadian Bar Association is seriously considered, and all other judges are appointed on the basis of legal experience and excellence and no judges are elected by the public. The weather in the most populated areas is no different than that in the northernmost States (save for Alaska, of course), and I believe that some areas are even farther south than areas of America.
Oh, and it's okay and not considered disloyal to vacation in Cuba. LOL.
So why not? Of course I know I'm biased about this.
We have sound reasons to be biased.
From your lips to every last damn leftist ear in the US. Canada to is welcome to all of them!
Hear that leftists- abort to your hearts contentment. Health care is "Frreee"- just like the government run utopia you want. I am sure the former US left will find something to bitch about voting; it is what they do. Location will not matter.
So Canada has smash and grab mass robberies, riots, and gang violence? If not it soon will. The leftists will have to take all of the criminals they enabled with them. The rest of us will have better things to do than clean up the departed left's mess.
What is missing, what is missing, what is missing.... I know, a military that can actually defend Canada from outside attack. Sorry, our military stays- the left doesn't support it anyways; along with law enforcement- we are keeping those as well. Just in case some of the criminals here get lost enroute to Canada. Also we will be sending all illegal immigrants. Forgot to mention they go with their enabler leftists.
Canada will have way more people, including criminals and illegals, all demanding free health care and entitlements. Let us know how that all works out?
And just remember we are your military. So don't piss us off, or we might decide be a little late to the show when China decides to invade Canada. WWIII being fought on Canadian soil wouldn't have a good outcome.
Dreamer. I'm the wrong person on NT to threaten with China, and WWIII would cause the end of all life on Earth so maybe you should move to the ISS.
But it's cold!
Besides, doesn't Canada have strict guidelines on who can emigrate to Canada?
Ah, but Trout. GLOBAL WARMING. The increasing numbers and intensity of hurricanes and tornadoes in the USA are making life miserable, and Canada almost never gets them, although perhaps some flooding near the oceans, and the increasing seriousness of drought in the south-west is something Canadians are not concerned about with the multitude of fresh-water lakes throughout the country. As warming continues more and more vacant land to the north will be converted from permafrost to farms and ranches.
Yes, Canada's immigration laws are very strict, so most of what Ronin2 threatens is no more than a threat.
When I lived in Canada I appreciated the beauties and benefits of all 4 seasons. There is much to enjoy in each one.
I drove thru Western Canada on my way back from Alaska to the states. British Columbia is a place everyone must see at least once.
I'm cold natured so if it's not 90 degrees with sun blazing and 100% humidity...I'm going someplace where it is
Having spent many winter vacations in Florida, even for a while sharing ownership of a golf condo in Pembroke Pines Florida, and having been to Bermuda, the Bahamas, Jamaica and Barbados I have to admit that warm breaks from Canada's winters were greatly appreciated, but global warming is upon us.
Are you trying to say abortion is illegal in the USA?
It was a general comparison with the multitude of different American states' laws criminalizing it at various levels and the intent of the SCOTUS to reverse Roe v Wade. However, I need to correct my original statement that abortion is legal in Canada, but rather it is not illegal in Canada.
In my opinion, Roe was never a strong opinion in terms of its reasoning, so I’m honestly not surprised if the current SCOTUS overturns it. Even in Roe, the Court recognized the government’s interest in protecting potential human life (I think the phrasing is “the potentiality of human life”). Briefly this was based on the historical reasoning from some people that the fetus was part of the mother prior to viability. The Court then engaged in a somewhat arbitrary balancing act with its trimester rules.
This is not to say that the standards they set were based on nothing at all. The Court debated the matter back and forth, at length, in the Roe opinion. But none of it was based on the Constitution, and that created a foundation where this opinion was always vulnerable to being overturned.
Congress has had 50 years to shore up this vulnerability, so if this makes you mad, I’d suggest directing your anger at them as opposed to the Court.
Congress can't legislate away constitutional rights!
For the last fifty years abortions were such a right...
It would have probably required a constitutional amendment, of course. That’s generally a thing done by Congress.
There is no Constitutional right to abortion
Show where in the Constitution abortion falls? Where is it specifically mentioned? It should be easy to point out like the First and Second Amendments.
Roe v Wade the Supreme Court made a law out of nothing; and did a piss poor job of doing so.
There is no constitutional right to birth either
And that's probably why they never tried to codify it. A constitutional amendment requires 38 of the 50 to ratify the amendment. The ERA was never ratified and probably never will be. I highly doubt 38 states would ratify a constitutional amendment for abortion
I mean, I say “probably” because I just don’t know for sure. Arguably, the right to get an abortion exists via the 9th Amendment. That is, even though it’s not explicitly mentioned in the Constitution, that doesn’t mean the people don’t have the right anyway.
In that event, Congress could potentially have passed ordinary legislation protecting the right without going through the whole amendment process. Either way, I think waiting for the Supreme Court to save the day is a fool’s errand.
I defer to your superior knowledge of the Constitution and how it works.
What does ''deeply rooted'' mean. What year would that be?
One has to wonder if Loving vs Virginia is deeply rooted, and is it next?
The Constitution, words on paper written by old white men, Amended 27 times.
What could go wrong...
We often envision the founding fathers as “those rich guys in white wigs,” because that’s what we saw in our history books.
What the photos do not accurately portray is how old these “rich guys in white wigs” actually were.
Most of the Founding Fathers were under the age of 40 on July 4, 1776, and would more rightly be considered ‘founding teenagers’ or young adults at the time they submitted the Declaration of Independence.
Among the most notable signers were James Monroe (18), John Marshall (20), Aaron Burr (20), Alexander Hamilton (21), and James Madison (25). Thomas Jefferson, principal author of the document, was only 33.
In comparison to this group of budding and patriotic leaders, today, only 9 of the 435 members of the House of Representatives are under the age of 35 and the youngest member of the senate is 40.
In 1776 the life expectancy was 35 years. Yup, they were at best middle-aged white men.
As it turns out, many Founding Fathers were younger than 40 years old in 1776, with several qualifying as Founding Teenagers or Twentysomethings. And though the average age of the signers of the Declaration of Independence was 44, more than a dozen of them were 35 or younger.
“We tend to see them as much older than they were,” said John Adams biographer David McCullough in a 2005 speech. “Because we’re seeing them in portraits by Gilbert Stuart and others when they were truly the Founding Fathers—when they were president or chief justice of the Supreme Court and their hair, if it hadn’t turned white, was powdered white. We see the awkward teeth. We see the elder statesmen. At the time of the revolution, they were all young. It was a young man’s–young woman’s cause.”
So they were mostly old white men based on the life expectancy of the time period.
Alito had a much different view when he was answering questions during his appearance before congress for his appointment to the Supreme Court.
The meaning of ''stare decisis''. ( Stare decisis is the doctrine that courts will adhere to precedent in making their decisions . Stare decisis means “to stand by things decided” in Latin.)