Dissents I Would Like to Read in Dobbs
This Dobbs majority is part of a long-term political project. If it’s true that we ought not to worry, in the case of a given precedent, that it will also be vulnerable to Alito’s Glucksbergization of the Fourteenth Amendment, then the reason we ought not to worry about it is that we all know this Dobbs majority opinion is an act of constitutional politics more than it is an outworking of any defensible principles of constitutional law.
S E E D E D C O N T E N T
I don’t make a habit of imagining dissenting opinions. But then, the Supreme Court doesn’t make a habit of leaking possible majority opinions. And so, I’ve been thinking about what kind of dissenting opinion(s) in Dobbs I would want to see. At the outset I want to be clear that, unlike several recent conservative leakers from inside the Supreme Court (!), I am not interested in attempting to influence the Justices (their clerks are not likely to read this, and I assume the dissents have already been written anyway). Instead, my thinking is that the oddity of the fact that we have all read a draft majority opinion and now are waiting for the final version puts us in a kind of liminal place, and in that place, I want to invite you, the reader, to explore a kind of counterfactual with me—one that gets to the question of what dissents are there to do. (And that, in turn, depends on questions about what the Supreme Court is there to do.)
Here’s the counterfactual: What might a dissent look like in Dobbs , if we are beginning to move into an era of less asymmetric constitutional hardball —specifically, an era in which the liberal Justices begin, tentatively at first, to start making some of the choices in dissent that conservative Justices like Antonin Scalia made routinely in dissent (for other examples of such choices, see the Obergefell dissents). Specifically I am talking about the choice to write a dissent that speaks not only to one’s colleagues or to “history” or future generations, but to the present world of constitutional politics and argument outside the Court.
The Dobbs draft has, I think, laid to rest the illusion, to the extent that anyone other than Justice Breyer was still laboring under it, that this Supreme Court sits above politics. What I mean is that Dobbs is the result of a multi-decade-long, explicit, open, partisan political campaign aimed specifically at reversing Roe —a campaign that was sometimes frankly transactional, in its specific brand of politics, with politicians treating the religious right as a single-issue constituency whose support could be bought through promises to appoint judges who would overturn Roe . That long campaign culminated in a Republican candidate for President literally running on a promise to select Justices exclusively from a preselected list of individuals who would, according to his political promise , “ automatically ” overturn Roe . It is impossible to construct a hypothetical much stronger than real life here, in support of the point that I hope liberals will now accept (and which conservatives never doubted), that politics—high politics, constitutional politics, call it what you’d like, but it’s politics—is a central driver of what goes on in the Supreme Court.
BTW, the dynamics of constitutional politics outside the courts is a central theme of my book with Willy Forbath, The Anti-Oligarchy Constitution , which has recently been the subject of a genuinely terrific symposium on this blog! Stay tuned for our response to the participants in that symposium—slightly delayed, due to several factors that include the sudden appearance of this wild Dobbs opinion draft…
Ok, without further ado, here is what I would like to read in a Dobbs dissent:
1. The signal to the public that things are not ok
The dissenters need to indicate to the public from their special vantage point inside the Court that this majority opinion is not the outworking of transcendent principles of constitutional law and public reason. Instead, this opinion is exactly what it reads like: a work of outcome-oriented partisan constitutional politics. (Of course, that is how some conservatives now wish to boldly re-imagine Roe itself, a largely-uncontroversial-at-the-time 7-2 opinion written and joined mostly by Republicans, most of them Nixon appointees.)
There are a variety of ways to signal tersely that things are not ok. All involve abandoning some of the usual liberal politesse. This would be a good day to delete the word “respectfully” in “I respectfully dissent,” but more is needed. I think the Justices could certainly do worse than simply write: “Today’s decision was egregiously wrong the day it was decided.”
2. The signal to the public that there is politics going on here
Justice Sotomayor asked, at the oral argument, “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” The dissenters are, I think, obligated to expand on that point in writing in dissent. It would seem incongruous for a Justice to discuss in a dissenting opinion the fact that the President who appointed the majority of the Justices in the five-Justice majority had run on a pledge to appoint people who would “automatically” overturn Roe . But since that is exactly what happened, and Roe is being overturned solely as a result of personnel changes on the Court, I would like to read some acknowledgment of this in the U.S. Reports.
The usual liberal approach to this situation would be to eviscerate the majority’s shoddy reasoning and let that evisceration speak for itself. That’s what I expect to read. But it would be more useful, in order to help right the ship of American constitutional politics, which is taking on a lot of water at the moment, to say something clear and straightforward about how this overturning of precedent is due solely to changing personnel on the Court, where much of the politics of who is appointed to the Court has centered on the conservative and (increasingly over time) partisan Republican political project of overturning this specific case.
Again, I don’t expect to read this in the U.S. Reports, because liberal Justices generally won’t do that sort of thing. But it is what keeping faith with the Constitution obligates the liberal Justices to do, if they believe that their constitutional obligation includes helping the public understand why their fundamental rights and equal standing are being eviscerated by a politicized Court.
3. The reasoning: building a foundation for a future constitutional politics of equality and freedom
A standard part of any dissent is to explain why the majority is wrong. Fine.
But there’s more than one way to do that. It matters, obviously, to do the work of internal critique and to do it crisply and well—that is, to expose the gaping holes in the reasoning of the majority on the majority’s own terms: the demonstrably false history, the wild (but typical Alito) big appendix full of old laws that in fact did not prohibit abortion prior to quickening (!), the surprising lack of any serious attempt whatsoever at an originalist justification for the result in this case, etc. But it would be a mistake for the dissent to occupy itself exclusively with internal critique of the Court’s argument, as Justice Stevens did in his dissent in Heller .
Instead the dissent needs to engage with the core constitutional arguments at stake in this case that the majority basically decides to ignore. The most obvious of these is the equal protection argument, the subject of an excellent amicus brief . Not all women are pregnant all the time (and indeed, a few men occasionally are pregnant these days), but to treat those facts as sufficient to dispose of the equal protection argument is a serious overreading of Geduldig (a case that in any event was egregiously wrong the day it was decided, as Congress concluded when it passed the Pregnancy Discrimination Act). The Alito majority opinion clings to Geduldig tenaciously, but even if Alito’s overreading of that case were right which it is not, it takes some kind of gall to insist in this opinion of all opinions that we need not entertain arguments about the rightness or wrongness of a precedent because we are just bound by it; the issue is “foreclosed.” (Really, in Dobbs , you’re going to rest exclusively on stare decisis ? Yes, see p.10–11.) Alito is willing to spend plenty of time trolling Justice Ginsberg for her view that Roe came too early, but glaringly unwilling to engage with her actual critique of Roe , which was that it needed to respect women’s equal citizenship under the Fourteenth Amendment. My point here is not that the dissent needs to go through all of that (although it would be fine if it did). My point is instead that the dissent needs to engage seriously with the equal protection question that the Alito opinion clumsily hides behind Geduldig to avoid. That serious engagement is a signal to the public about how to understand the stakes of the case.
I also think it is important for a dissent to engage with and elevate the Thirteenth Amendment argument that shows the public the historical centrality of forced pregnancy and forced motherhood to the institution of slavery that we abolished through war and Amendment. In a swirling maelstrom of bad-faith arguments about abortion and Reconstruction, this persuasive argument deserves some serious discussion in a dissent. Particularly since it is far more originalist than anything in Alito’s opinion.
Basically my point is that the Dobbs dissents should avoid what I think was something of a strategic error in the Heller dissent. A Dobbs dissent should not confine itself to showing that the majority’s arguments are flawed on their own terms. It needs to reach out and show that a different set of constitutional ideas is available for the public to grab hold of, and for Congress and state legislatures and state courts to consider, as we begin to build a future constitutional politics on foundations from the Ninth Amendment to the Thirteenth to the Fourteenth, in response to the Court’s decision in Dobbs.
4. The concessions: abortion as part of the medical and social fabric, and the Court as a political institution
A less-important but still important task of any dissent is to point out the concessions the majority is making. I will highlight two of them.
(a) A dissent should note that Alito seems to be conceding that abortion is part of the fabric of social policy that supports women’s health and lives. Does he say it that way? Obviously no. But because Alito is Alito, he cannot resist helping himself to a range of arguments that can fairly be paraphrased “abortion is unnecessary now because of the existence of lots of other government policies supporting women that my allies and I have long fought against tooth and nail and will continue to do our best to undermine.” It would barely even qualify as self-parody if he had come out and said, “Now that women are admitted even to Princeton [which of course I bitterly opposed—sorry Sonia] they have full equality and therefore no longer are in need of abortion.”
In this vein, Alito invokes legal protections against pregnancy discrimination (there he’s of course helping himself to the congressional overruling of his beloved precedent, discussed above, Geduldig ). He cynically invokes the FMLA (which, again, recall, his side tried to kill as an exercise of Congress’ Fourteenth Amendment powers until Rehnquist defected in Hibbs ). The coup de grace is when Alito actually cites the Affordable Care Act (n.44, p33) to support his thinly-veiled endorsement of abortion opponents’ claim that women are protected from the economic costs of pregnancy (which is laughable by the way—pregnancy is very expensive even if you have health insurance!). Whatever protections women have as a result of the ACA, they sure would not have if Justice Alito had had his way in any of several successive challenges to the ACA; and of course, a lot more women would be protected today from some of the economic costs of pregnancy that Justice Alito is discussing if he and his colleagues hadn’t kneecapped the ACA in Sebelius by cutting millions of women out of the Medicaid expansion. This is all vintage Alito, the work of a man without any excess of self-awareness or shame.
What I think the dissent ought to do is this: point out the way these points illustrate—even through the arguments of abortion opponents that Alito insists on inscribing into the U.S. Reports—that abortion is actually part of a continuum of policies that support women, in their physical health, economic security, and participation in the workforce. Alito here is favorably citing arguments that these policies are good substitutes for one another—if you have enough of these other supports, you don’t need abortion. That’s not a very good argument, but it does at least implicitly concede the connection between abortion and the fabric of these other policies.
(b) Alito also offers two “don’t worry, nothing to see here” sections (31–32 and 62) in which he appears to attempt to contain the reach of Dobbs by arguing that abortion is unique, and therefore other unenumerated rights under the Fourteenth Amendment such as contraception, same-sex marriage, and so on are not going to be “undermine[d] in any way” by Dobbs’s frontal attack on the reasoning on which all such cases depend. “Nothing in this opinion should be understood to cast doubt” on any such issues, he writes. This move is similar (and similarly conspicuous in its lack of citations or supporting arguments) to Justice Scalia’s famous paragraph in the Heller majority opinion asserting that lots of familiar, common-sense gun regulations are all going to be fine. (Narrator: they are not all fine.)
Still, in my view, it is true that the Court is not going to overturn, for example, Loving v. Virginia . The reason for that is that Alito’s opinion in Dobbs is an act of conservative constitutional politics, whose reasoning is backfilled to support the prejudgement of the case (whose prejudgment was also the political prerequisite for the appointment of most of the Justices on the Court). In that situation, a better guide to where future opinions will go is to get a read on conservative politics, not to reason in a lawyerly way about the reach of the decision’s reasoning.
My point here is simply that a dissent ought to point this out. This Dobbs majority is part of a long-term political project. If it’s true that we ought not to worry, in the case of a given precedent, that it will also be vulnerable to Alito’s Glucksbergization of the Fourteenth Amendment, then the reason we ought not to worry about it is that we all know this Dobbs majority opinion is an act of constitutional politics more than it is an outworking of any defensible principles of constitutional law. It is within the power of the dissenters to give the American people a window into this fact. I think it is their obligation to do it.
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It is my belief that anyone with a modicum of historical and constitutional knowledge can recognize that is nothing more than politics. This is not law. The only recourse the other justices on the court have is to write a strong and counterfactual dissenting opinion.
I'm going to throw in just a small bit of history.
The first time abortion was criminalized in the United States was in the mid-nineteenth century. Nicola Beisel and Tamara Kay write that a key factor in the anti-abortion arguments of that time was that too many native-born white women were ending their pregnancies, opening the door for the country to be overrun by fertile foreigners.
One should also note that at this time, women did not have the vote.
Calm down, this doesn't mean the end of abortion. The amount of hysteria emanating from the pro- abortion crowd is ridiculous.
The correct term is pro-choice.
Why do you refuse to use the correct terminology?
The article is more about pointing out the fact that this is a political decision and not a legal decision. The legal reasoning in the opinion is specious at best, as is the history. But hey, no one ever said the supreme's were above the fray.
There is one law school professor who strongly agrees with Alito. Josh Blackman.
It will definitely result in a fucked up patchwork, even more than we currently have, of abortion access and a legal nightmare when it comes to states that want to criminalize an abortion.
And of course, as usual, poor women are going to be completely screwed. The wealthy anti abortion activists and politicians couldn’t care less, their wives/daughters/mistresses will still easily be able to go to democratic states or Canada to get their abortions. The poor? Well since when did the anti abortion crowd ever give a shit about them to begin with?
And of course the states pushing the most stringent anti abortion laws are also the ones who do the absolute least for struggling mothers and children and I don’t see that changing at all.
Life is sacred til birth, after that, Fuck’em. the anti abortion motto right there.
It's my belief that anyone with a modicum of historical and constitutional knowledge would know that Roe is nothing more than politics. It's not law.
Here's a nice summary by a pro-abortion Constitutional scholar, for those who care about more than simple declarations.
Because I know no one will read. Here's the thesis:
Perhaps what is really needed is to bring the discussion about unenumerated rights out of academia and bring it to the kitchen table.
what is really needed is to bring the discussion about unenumerated rights out of academia and bring it to the kitchen table
But the "right to an abortion" has been a kitchen table discussion for generations at this point. Its not an esoteric concept to anyone. That's why Roe so obviously failed in it's goal of "settling" the issue by judicial order.
The Court created a supposed Constitutional right to an abortion until viability without being able to justify it based on the text of the Constitution or American legal history. A large subset of the population never bought into the 7 justices' policy preference and it inflicted 50 years of damage to the judiciary. The Court can't simply impose its morals on an unwilling population.
There is no evidence that Roe had any such goal.
I agree, but I also believe there are others, (health care, housing, water, ?) which, really should be a post unto itself.
And yes, too many people are looking to the feds to be the cure for everything. Left and right.
As to imposing its morals, well, seems to me that is what Alito is doing in order to get to where he wants to be.
We could also go into the discussion about Thomas whining about institutions not being revered.
Well, the institutions did that to themselves.
Personally, I believe humans cannot be governed in more than groups of 100,000 perhaps more. But there again, that would be an entirely different post.
I don't come to these issues with the opposite of yours, or anyone else's. I come at it from a viewpoint entirely outside of the realm, unless you are a follower of state of nature theory.
Excellent read.
If the reversal of Roe is allowed to happen, then instead of calling them justices, I believe we should be using the correct label - Ayatollah- when referring to anyone on the Supreme Court who voted to restrict women's rights.
Ayatollah Alito - sounds much accurate after reading his "arguments" that were listed in Item 4.
Lol. The Justices aren't restricting anyone's rights. They aren't stopping a single person from getting an abortion.
The forthcoming interstate fights are going to be, interesting. Making it illegal to travel out of state for an abortion will be a really exciting show.
Besides being impossible to enforce, I don't see how any such law could possibly be legal at the state level.
In 1971 a girl I went to school with flew to New York to get an abortion.
Yeah, states can't generally restrict travel to other states. You can travel to Las Vegas and gamble without worry even if gambling is illegal in your home state.
Nor do I, but apparently Missouri is going to give it a shot. And there may be others to follow.
The whole thing is going to be a shit show no matter what happens.
At first, probably. The issue has been on ice for 50 years so we'll probably see an explosion of legislation in which both sides takes maximalist positions. That will probably moderate over the medium term and having the democratic process behind such settlements will help give them legitimacy.
Or not, and people will fight over it for another 50 years.
True.
It remains to be seen if the majority of US citizens will submit to being ruled by a rightwing court that makes or overturns laws based on religion.
But the court isn't "ruling." It's doing the opposite. It's saying we don't have the power to "rule."
overturns laws based on religion.
Good thing it's impossible to honestly claim the Court is doing anything based on religion or even overturning any laws. .
My first trip to NYC was in 1974 while in college. That was the real NYC then, not like today's Disney World. The Bronx was on fire, the city was on the verge of bankruptcy, the streets were real and dirty. You stayed out of the parks after dark, dogs roamed in packs, and squatters lived in many old but previously elegant buildings and turned them into shooting galleries.
The city had had all Dem mayors since WW II except for one and they knew how to keep the city real. It was a young man's play ground.
“My first trip to NYC was in 1974 while in college. That was the real NYC then, not like today's Disney World.”
My first trip to NYC was in 2017 as my son had settled in Brooklyn. Been back twice a year since. It is the last thing from Disney World. It is real, it is raw, and it breathes life at any hour and in every place. Never, ever felt threatened to be out and about. Perhaps I had a better guide, but it is truly one of the greatest cities in the world…that is if one has the ability to put politics aside in appreciation.
It is debatable if Bloomberg is a Democrat...
they are allowing others to do their dirty work
I’m sorry that it took you so long.
Good deal, nothing like raw urbanity.
Neither have I, white skin has a protection all its own.
Absolutely, I haven’t used a guide.
Who wants to debate it?
Yes it is. Like with the Texas law and allowing anyone to sue a person who gets or doctor who performs an abortion. I do not understand at all how some random jackass would have legal standing in any fashion.
The only one I could see even possibly having standing would be the would be rather, but even then finding in favor of him would be finding more or less that women do not in fact have final authority over their own medical choices.
I don’t see it being even remotely practical to try and punish someone for something they did in another state where it is legal.
If that's how you want to describe the democratic process where voters are free to decide what laws govern them.
States need to outlaw gun sales since it wouldn't be stopping a single person from getting a gun.
Yet to this day, states have passed laws prohibiting abortion in violation of Roe. Seems to have worked for them.
BTW, when writing their statutes, they can just take their cue from TX and have 'concerned citizens' file suit and collect on fines for ratting out their neighbors, co-workers and extended family.
Some might if it wasn't for that enumerated, Constitutional Amendment.
Yet it is undeniable that some state legislatures ARE contemplating including such a prohibition in their statutes. So the fact that most would agree that it's unworkable doesn't stop states from passing those statutes. They intentionally cause reason for incessant litigation.
If repealing Roe isn't a ban on abortion because all one's needs to do is go to another state, HOW then can precluding the sale of guns in one state ban gun ownership?
No they cant;
Why not? What's stopping them? Surely not the SCOTUS.
The right wing has been grooming people for judgeship positions for decades from the federalist society. They have been making these positions political just as long. Then try to blame the other side.
I read an article this morning that shows the Alito draft relies on the Glucksberg test. A 1997 case upholding Washington's ban on assisted suicide. The issue present here is that the Glucksberg case acknowledges the validity of Roe. In effect Alito is trying to overturn Roe using a precedent that upholds Roe using some very twisted logic. Rather than ruling on the law Alito twists law to fit a predefined outcome.
I'm shocked at how desperate the far left is these days. The headline is Grade A clickbait.
Talk about demanding "pre defined outcomes." Glucksberg articulates a test, it doesn't demand a result. Glucksberg did not "uphold" Roe, it upheld a ban on assisted suicide and abortion was not an issue. .
In the Glucksberg ruling Justice Rehnquist cited the right of abortion.
Yes. That doesn't effect what I wrote.
You know you can just as easily find left wing sources attacking the use of the Glucksberg test because it's too friendly to the anti-abortion rights argument?
It's really quite funny.
It kinda does. It's not even a difficult logical leap.
That's what lawyers do. You're free to post any of those arguments OR make one yourself. I'll read it.
The more I think on it, the more I don't like the ruling on Glucksberg either, but Alito using it to gut Roe makes no sense to me.
Not at all. Which is why the actual parties in the case aren't arguing that the inclusion of Roe in a footnote in the Glucksberg case means Glucksberg upheld Roe.
Here's the brief for Jackson's Womans Helath in Dobbs, feel free to point out where they made that argument about Glucksberg.
I think its impossible for Roe to pass the Glucksburg test, which is why I think the liberals trying to avoid its application have a better argument than those claiming it dictates upholding Roe.
I read it. It doesn't change the argument that SCOTUS recognizes the right to an abortion in the Gluckman decision.
It wouldn't if it were tried for the first time here, but the Glucksburg test states:
Since we now have 50 years of history AND it's specifically called out as a recognized right in Gluckburg it does pass the test.
What you wrote was a strawman.
You state that "Glucksberg did not "uphold" Roe".
Neither the linked article nor anyone here said it did.
I was responding to this"
"Alito is trying to overturn Roe using a precedent that upholds Roe using some very twisted logic"
Recognizing that Roe, in fact, exists is not particularly noteworthy, which is what Gluckman did.
My point is that it's not some "fatal flaw" your link claims. If it were, the experts arguing the case probably would have brought it up, wouldn't you agree?
YOU are the only one that has claimed anything about Glucksberg upholding Roe. You're debating yourself.
There you go again. YOU made a false proclamation and want others to argue that it exists.
The brief you linked does cite Glucksberg.
How about addressing THAT context instead of your fabrication?
Oh and BTFW, Glucksberg argument relies heavily on the Casey opinion. Maybe Glucksberg is on the block too...
ave 50 years of history AND it's specifically called out as a recognized right in Gluckburg it does pass the test.
But the "right" to an abortion didn't exist when the 14th Amendment was passed, and no one thought it existed for almost another 100 years. That's the history that matters. Was it a considered a "right" at the time the provision became a part of the Constitution
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It recognizes it as an existing right which Alito wants to argue it cannot be.
Then why block quote a completely different comment?
That was you right?
Your comment lacks credulity.
Oh, and if your statement were true, you'd be posting in the wrong fucking thread too.
First that's not quite true. At the signing of the 14th Amendment abortion was legal and well practiced. Why explicitly enumerate a right that no one contended was necessary? It wasn't until after the Civil War when male doctors started getting involved in women's reproductive health, along with a rise in the Catholic Church that laws started popping up banning abortion. It wasn't until 1910 that it was banned nation wide.
Furthermore the right for private citizens to own semi-automatic weapons didn't exist when the 2nd Amendment passed either, but the Court has recognized we've moved on from muskets and a "well regulated militia". Taking away the rights of others may come back to haunt conservatives later.
It's absolutely true. Abortion was illegal, by statute, in the majority of states at the time it was passed. Moreover, it was illegal after quickening at common law. It's impossible to argue that a right to abort until viability has any basis in our legal history before Roe.
explicitly enumerate a right that no one contended was necessary
Since abortion was in fact illegal in most states, you've reversed engineered the argument why it is impossible to claim abortion is protected by the 14th Amendment.
urthermore the right for private citizens to own semi-automatic weapons
But abortion did in fact exist when the 14th Amendment was passed. It's not a new development.
aking away the rights of others may come back to haunt conservatives later.
Believing the constitution can "evolves" whenever 5 justices agree is much more of a danger than fidelity to the text of the document.
Yes and no. Laws were passed in the 1850's to restrict abortion because too many white women were having abortions.
I would say something really snarky here, but I think I'll leave it alone.
Except there's no "no". The answer is just "yes".
Ok folks, let's get this straight.
The author of the article is presuming the Alito draft will be the majority opinion.
Now, dissenting justices have a right to publish a dissent.
The author is stating what items he believes, or would like to see, the dissents mention.