More Opinions From Legal Correspondents On The Alito Draft Opinion

by

Politico obtained a working first draft of an opinion by Justice Samuel Alito, one of the most radical Republicans on the Supreme Court, reversing Roe v. Wade and Planned Parenthood v. Casey. Supreme Court has voted to overturn abortion rights, draft opinion shows.

I’ve given you my opinion, but here is another opinion from Supreme Court reporter Mark Joseph Stern at Slate. Alito’s Leaked Draft Fully Overruling Roe Is Jaw-Dropping and Unprecedented:

Alito’s draft, which he appears to have completed in February, constitutes an acidic and unflinching repudiation of reproductive rights—as well as other closely connected liberties like LGBTQ equality. It is a maximalist assault on progressive constitutionalism that will lead to the near-instant prohibition of abortion in as many as 26 states.

Never before has the complete draft of a Supreme Court opinion leaked before its official release. But there are many good reasons to believe that the unprecedented leak in Dobbs v. Jackson Women’s Health Organization is, in fact, real.

Most obviously, it reads like a genuine opinion, with the proper structure and format as well as meticulous and extensive citations. It is written in Alito’s voice, with a caustic tone that tracks his previous criticisms of Roe and an evident disgust with abortion itself. A stamp on the front page states that it was circulated to the other justices on Feb. 10, which would mean that Alito and his clerks took two months to write it. That timing checks out. There’s a long appendix with various statutes at the end, which Alito frequently attaches to his opinions. From top to bottom, this document looks authentic.

It is also remarkably extreme. Alito’s Dobbs opinion does not seek out any middle path. He disparages Roe and its successors as dishonest, illegitimate, and destructive to the court, the country, and the Constitution. He quotes a wide range of anti-abortion activists, scholars, and judges who view abortion as immoral and barbaric; there’s even a footnote that approvingly cites Justice Clarence Thomas’ debunked theory that abortion is a tool of eugenics against Black Americans.

And he disavows the entire line of jurisprudence upon which Roe rests: the existence of “unenumerated rights” that safeguard individual autonomy from state invasion. Alito asserts that any such right must be “deeply rooted” in the nation’s history and tradition, and access to abortion has no such roots.

The obvious problem with this analysis is that the Supreme Court has identified plenty of “unenumerated rights” that lack deep roots in American history. Most recently, the court established the right of same-sex couples to be intimate (2003’s Lawrence v. Texas) and get married (2015’s Obergefell v. Hodges). Alito dismissed both decisions in harsh terms, mocking their “appeals to a broader right to autonomy” as a slippery slope. The “high level of generality” in their reasoning, he wrote, could “license fundamental rights to illicit drug use, prostitution, and the like.” It is difficult to square this opprobrium toward Lawrence and Obergefell with Alito’s later assurance that his decision “should not be understood to cast doubt on precedents that do not concern abortion.” This unreasoned disclaimer is not worth much on the heels of 62 pages shredding dozens of precedents over a half-century.

Other aspects of the Dobbs opinion read like pure, unadulterated Alito-ism. (There are, for instance, citations to famed criticism of Roe from liberals like Justice Ruth Bader Ginsburg and Laurence Tribe that gratuitously troll progressives.) Indeed, many aspects of the prose suggest that no other justice in the majority had yet weighed in when Alito circulated the draft. Politico reports that Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett voted with Alito to overrule Roe. That gives Alito just five votes, none of which he can afford to lose.

During oral arguments, Kavanaugh and Barrett sounded eager to limit backlash, something the leaked opinion shows no interest in doing. Kavanaugh wanted to cabin the court’s reasoning by framing abortion as “unique” because it ostensibly involves the taking of a life. Alito’s draft does say that abortion is “unique,” but this idea does not lie at the heart of his analysis. Rather, his more emphatic denunciation of Roe’s logic is that abortion rights are not firmly entrenched in tradition or a part of the Constitution’s original meaning. If it’s true that these rights receive no protection, then same-sex marriage will not stand for long. Yet instead of toning down his rhetoric, Alito simply cited Kavanaugh’s past opinions over and over again—as if flattery will be sufficient to appease his politically minded fifth vote.

It thus seems possible that Kavanaugh, and maybe Barrett, will urge Alito to soften some portions of the opinion that call other precedents into doubt or depict pro-choice justices as idiots and partisan hacks. Will it work? This leak may make that task more difficult, as Alito will not want the public to think that he caved to more moderate squishes. And where is Chief Justice John Roberts in all this? Politico suggests that he did not vote with the majority to overrule Roe. And CNN reported on Monday night that the chief justice wanted to uphold the law at issue in Dobbs, Mississippi’s 15-week abortion ban, and commence a more incremental rollback of abortion rights. He may now try to dangle some compromise with Alito as the cost of his vote—if not a substantive settlement, then a less scathing tone.

Aside from the Roberts mystery, there’s another question: Who in the world leaked this draft? There are two likely scenarios. First, a liberal justice or clerk may have leaked it to ring the alarm and trigger so much backlash that Kavanaugh or Barrett could step back from the brink. Second, a conservative justice or clerk could have leaked it in an effort to lock in the majority’s votes. If Kavanaugh is wavering, this leak might persuade him to stick to his guns to avoid a public flip-flop while conveying principled certainty.

A third possibility:

No matter how this draft reached the public, its release is one of the biggest Supreme Court stories ever. It will alter the justices’ continued deliberations over the next two months, deepening resentments and recriminations between the warring camps. There is still time for a justice to flip—an opinion is not final until it is announced—but the court generally completes its business by the end of June. So the clock is ticking. And right now, a majority appears to be careening toward the complete and unapologetic eradication of Roe.

The Nation’s Legal correspondent Elie Mystal writes, Yes, the Theocrats on the Court Really Are Going to Overturn Roe v. Wade:

Forced-birth advocates are finally about to achieve something they’ve worked toward for decades. It now appears certain that the Supreme Court will revoke abortion rights and return pregnant people to the status of second-class citizens: mere incubators who lack the right to control the fate of their own bodies.

* * *

It’s highly unusual for a Supreme Court opinion to be leaked before it is released. It’s so unusual that nobody can say for certain how close this draft opinion is to being a reality. But here’s the most important thing to know: Alito was assigned to write the majority opinion, and given that Alito has been one of the greatest enemies of women’s rights since he joined the Supreme Court, it’s safe to say that five justices are comfortable, at least in theory, with the most extreme version of a decision supporting the Mississippi abortion ban. It’s possible that some of the language will change between the draft Politico has obtained and the final version the Supreme Court releases in a few weeks. But one doesn’t assign this opinion to Sam Alito unless the goal is to overturn Roe.

The only other question then is whether one of the five conservatives will blink in the face of public reaction. I do not think that is likely. Alito wrote it; Thomas is an extremophile every morning he wakes up; and Gorsuch, Kavanaugh, and Barrett were appointed specifically to do this by a president who promised that a commitment to overturn Roe v. Wade would be his litmus test for Supreme Court justices.

They won’t back down now. Anything short of a riot is unlikely to make the justices think twice about upending 50 years of judicial precedent. Even an actual riot will probably just make them go on a summer speaking tour where they try to rehabilitate their personal reputations.

Indeed, people should have expected exactly this outcome from the moment Donald Trump won the 2016 presidential election. Specifically, the 52 percent of white women who voted for Trump, along with the 52 percent of all men and a whopping 62 percent of white men, should have expected this. Some of them clearly wanted abortion to be overturned. But 59 percent of Americans believe abortion should be legal in most cases, including 57 percent of white Americans—so some of them clearly didn’t want it.

Did they think these conservative theocrats were joking? Conservatives have long promised to take away women’s rights. Now they are doing it. What did anyone think was going to happen when we let them control the Supreme Court?

There won’t be a riot, because most people have accepted living with a Christian fundamentalist Supreme Court. The fight to save abortion rights was lost slowly, over a long time, and then all at once. It was lost in 2016 when Justice Antonin Scalia died and Mitch McConnell held the seat open until a Republican could be installed in the White House. It was lost when The New York Times centered an entire presidential election involving the first woman nominated by one of the two major parties on her private e-mail server instead of her commitment to women’s rights. It was lost when Ruth Bader Ginsburg died in 2020 and McConnell was allowed to rush through her replacement. It was lost when Joe Biden took office and didn’t make reforming, expanding, or neutering the power of the conservative Supreme Court his number-one priority.

Conservatives have fought for control of the courts because they wanted to take away abortion rights. Why would any of the people, institutions, or constituencies who didn’t care enough to stop them before suddenly care now that conservatives are about to do what they’ve long promised to do?

In the draft opinion, Alito says that the court is “returning” the decision on abortion to the states—and the sad reality is that most people in our selfish, backward nation are going to be okay with that. There will be a loud initial expression of sadness, and then all but the fiercest of advocates will go back to their daily lives, secure in the knowledge that if they need an abortion, they will be able to get one in their state or to pay to travel to a state (or country) where the procedure is still legal. The people, mostly women, who have been on the front lines trying to protect reproductive rights will remain there trying to help pregnant people in a post-Roeworld. But the new “allies” will only briefly be engaged by the ongoing injustice.

Don’t believe me? Well, folks, abortion services have been functionally illegal in Texas for months. Where has the paradigm-shifting public outcry been over the Texas bill that made that happen? Have people been taking to the streets daily? Has it been the dominant news story for months? Does it even make it onto polling lists as the “most important” issue to potential voters? No, no, and no. The Biden administration doesn’t even care anymore. Biden promised a “whole of government” response to Texas, and that amounted to one lawsuit (which was dismissed by the Supreme Court) and no further federal action. Biden even tries to avoid using the word “abortion” when he talks about reproductive rights.

People are fooling themselves if they think the reaction to overturning Roe v. Wade will be much different. People will be angry, for a time, and then they’ll move on. According to NPR, 21 states are poised to immediately ban or severely curtail abortion access should Roe v. Wadebe overturned, but none of those states are New York or California. Coastal liberals will express outrage and then go to brunch. Later, we’ll get a GoFundMe to pay for bus tickets for women in Texas to get to California.

At some level, the leak of the Supreme Court opinion is the perfect microcosm for how the right to bodily autonomy was lost. Even with this leak, most people will not believe it is happening. They will hold out hope that somehow things will be pulled back from the brink. Nobody will go too crazy just yet: It is a “draft” opinion, after all! And by the time the draft opinion has become the real opinion, people will be used to it. The well-off will have had time to rationalize it away or to remember that they live in a safe state or have the resources to get to one. The desperate will become resigned to their fates, knowing that nobody is coming to help them.

This decision will come down and the states will pass their laws and some people will be super pissed… but most people will go back to complaining about gas prices. By the time we get all the way to the midterms, the conservatives who wanted this will send their conservative heroes back to Washington, while the liberals who don’t will be depressed and wondering why their party didn’t do more to prevent it from happening. Republicans won’t be punished for this but rewarded, while Democrats are punished for not fighting harder to stop it.

And that will be how it goes, at least until the bodies start showing up. See, a lot of people have forgotten that when you take away abortion rights, people who are pregnant and don’t want to be will still seek to terminate their pregnancies. They will try to do so, with sometimes horrific and tragic results.

Sam Alito cannot take away people’s reproductive choices; he can only take away their ability to make such choices safely and legally. One day, those who do nothing now will be forced to remember why this was such a big fight in the first place.