Justice Alito gives us a narrow rulebook imprisoned in the past

A group of protesters hold signs reading “Oppose Alito, Save Roe.”
Photograph via Flickr.

A slender, right-wing majority on the Supreme Court (the vote was 5–4) overturned Roe v. Wade in the waning days of the Supreme Court’s term. It is a mistake, however, to render the ideological division of this split Court as one between “liberals” and “conservatives” as this fails to grapple with the true radicalism of the new majority. As example and in contrast, thirty years ago a conservative triumvirate of Reagan and Bush appointees (Justices O’Connor, Kennedy, and Souter) provided the key votes to uphold Roe in Planned Parenthood v. Casey. Although the Casey decision weakened some of the protections afforded by Roe, the joint opinion of O’Connor, Kennedy, and Souter nonetheless highlighted a critical dimension of the Court’s abortion jurisprudence: a clear recognition of the intertwined relationship between the liberty of reproductive freedom and women’s socio-political equality. “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives,” the three conservative justices wrote. “The certain cost of overruling Roe for people who have ordered their thinking and living around that case [cannot] be dismissed.”

Justice Alito’s majority opinion overturning both Casey and Roe in Dobbs v. Jackson Women’s Health Organization is nothing if not materially, rhetorically, and ideologically dismissive of the enmeshed struggles for reproductive freedom and women’s equality. It thus represents a significant victory for the political vision of a truly radical theocratic minority in the United States. And it is precisely this strange constellation of minority status hitched to immense constitutional power that renders the right-wing majority on the Court so weirdly anxious, prickly, and defensive. To shield itself from political criticism, the Court majority denies that it possesses any political ambition or vision. They are simply humble jurists, they tell us on many occasions and in many fora, following the law where it takes them rather than guiding it where they wish to go. Here is Justice Alito in Dobbs: “It is important for the public to perceive that our decisions are based on principle, and we should make every effort to achieve that objective by issuing opinions that carefully show how a proper understanding of the law leads to the results we reach.”

In place of a Constitution that might articulate broad political principles meant to govern an unfolding future, Justice Alito gives us a narrow rulebook imprisoned in the past. It is an unsustainable and internally incoherent position, but nonetheless one with devastating consequences and political purchase. To properly understand the decision in Dobbs, it is, as Alito himself writes, “important for the public to perceive” the unprincipled hypertextualism and approach to legal precedent undergirding the opinion—and it is critical to develop a proper understanding of the political project that brought us to this point in US constitutional law and history.

Justice Alito informs us that the Constitution “makes no express reference to a right to obtain an abortion.” This is correct. One might additionally note that the Constitution contains no “express reference” to a right to contraception; no express right to refuse unwanted medical treatment; no express right to marital privacy—and yet all of these have found protection in modern US constitutional law. Perhaps Justice Alito and his majority wish to jettison these too? Justice Clarence Thomas’s concurring opinion in Dobbs actively welcomes such a result, contradicting Justice Alito’s assurance that “nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” But once his Dobbs opinion itself becomes precedent, each and every right just listed will become open to attack on the same grounds on which he’s attacked Roe. We have here a Court opinion that is either wildly unprincipled or simply cynical and dishonest—pick your poison.

In addition to these constitutional rights nowhere expressly referenced in the Constitution, there is no “express reference” in the Constitution that ensures that state and local governments are bound by the provisions of the Bill of Rights. Originally, the Bill of Rights only checked the power of the federal government. Most of the provisions in that document have slowly been extended and held to also limit the power of the states via a century-long process of judicial activism—even, crucially, absent express constitutional language commanding such an expansion.

One of the most recent examples of this judicial activism occurred in the 2010 case McDonald v. City of Chicago, when a right-wing majority on the Supreme Court announced, for the first time, that “the Second Amendment right [to keep and bear arms] is fully applicable to the States.” The author of that opinion? Justice Alito. He posed the question thusly: “Whether the Second Amendment right to keep and bear arms is incorporated into the concept of due process” depends upon whether the right is “fundamental to our scheme of ordered liberty” or “’deeply rooted in this Nation’s history and tradition.’” These are familiar interpretative paths in the domain of substantive due process jurisprudence, the same area that formerly protected abortion, but the guiding language appears nowhere in the Constitution. It was invented by the Court. As Alito well knows, the rhetorically powerful claim that the Court should protect nothing beyond the explicit text of the Constitution is at odds with the most basic and widely shared practices of US constitutional law. Perhaps Justice Alito and his majority wish to jettison these too?

The individual right to an abortion is older than the individual right to bear arms in US constitutional law: the former has been recognized by the Supreme Court for almost a half of a century, the latter for only about a decade. Yet the erstwhile judicial activist who ushered in the individual right to bear arms now tells us that the individual right to abortion has no deep roots in US law and represents nothing more than an exertion of “raw judicial power.” How many generations, one wonders, does it take for liberty to take root in the imagination of Justice Alito and his right-wing majority?

If law is nothing but explicit text and plain meaning, then legal standards must provide crisp, clear rules for the new majority. In his Dobbs decision, Justice Alito’s fussy (if fleeting) commitment to this cramped vision of legalism hits fever pitch when he considers the standards devised by the Supreme Court in both Roe and Casey. In Casey, the Supreme Court abandoned Roe’s trimester framework and established an “undue burden” test to determine whether particular regulations of abortion (e.g., 24-hour waiting periods, parental consent, et cetera) pass constitutional muster. Fair critiques exist for Casey’s “undue burden” standard (why should women be burdened at all?), and good-faith disagreement may attend to the application of the standard in particular cases. For Alito, however, disagreements over the application of this legal standard become fatal to the entire operation: “Casey’s ‘undue burden’ test has proven to be unworkable. . . . Continued adherence to that standard would undermine, not advance, the ‘even-handed, predictable, and consistent development of legal principles.’” In Dobbs, Justice Alito laments that the “undue burden” test is “full of ambiguities” with “a wide gray area”; in fact, “the difficulty in applying Casey’s new rules surfaced in that very case” as different justices reached different conclusions applying the same test to the law. Yet there is nothing too terribly unusual in such disagreements.

For example: in the 1980s and ’90s there was some disagreement at the Supreme Court as to which legal test should govern affirmative action laws. Eventually, a conservative majority of the Court settled on the “strict scrutiny” standard, which requires the state defending an affirmative action program to show that there is a “compelling state interest” for the program and that the program is “narrowly tailored” to meet it. The “strict scrutiny” standard is no different than the “undue burden” standard, at least in terms of interpretative demands: the “strict scrutiny” test appears nowhere in the text of the 14th Amendment’s equal protection clause; what counts as a “compelling state interest” is open to ambiguity and hence interpretation; different justices may arrive at different outcomes applying the same standard in the same case. (To wit: in the landmark affirmative action case of Grutter v. Bollinger (2003) Justice O’Connor applied the strict scrutiny test to the University of Michigan Law School’s affirmative action policy and held it constitutional; Justice Scalia deployed the same test and voted to strike down affirmative action as unconstitutional.) Perhaps Justice Alito and his majority now wish to jettison the “strict scrutiny” test too? Is this a vague, unworkable standard or simply what we might call “law”?

Justice Alito’s Dobbs opinion contains a lot of angst about the imagined integrity of his legal reasoning, but remarkably little care for that reasoning’s consequences. He seems to take a perverse pride in ignoring the impact of constitutional decision-making, as though a regard for such things would somehow damage the purity of the judicial decision. One can only pity a polity that has this perspective at the helm of its highest constitutional court: “We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision.”

Of course, unpredictability is nowhere truer than in the political realm. But in law we do hold persons responsible for the reasonably foreseeable consequences of their actions. If Justice Alito lacks foresight, perhaps it is because he refuses to look. But even if he could look, he foreswears the virtue of sight.

What would Alito see, if he dared to try? Perhaps he would see 10-year-old rape victims forced to flee their home states for an abortion; perhaps he would see uncertainty and disruption ripple through the medical community, thereby jeopardizing women’s access to health care; perhaps he would see women’s liberty held hostage by gerrymandered and unrepresentative state “majorities”;  perhaps he would see the harms of sexual violence deepen and widen in states like Mississippi; perhaps he would see the status of women’s equality increasingly hinge on which state they happen to reside. In short, he would see a nation where the capacity of women to participate equally in its economic and social life had suffered a grievous setback.

Equality is a core constitutional principle. It is, to once again borrow Alito’s language, deeply rooted in the traditions of the Nation. Inequality, too, is deeply rooted in the constitutional tradition of the country. Any serious thinking about US Constitutional law thus requires a certain kind of commitment, an inescapable judgment: to which tradition should we adhere? Justice Alito, in both substance and structure, roots his opinion in the soil of inequality. The double standard he deploys with respect to “precedent” is where his commitment to the tradition of inequality becomes apparent. Nothing in the language or text of the Constitution can resolve the dilemma of two contradictory traditions.

History, or at least a particular reading of a certain history, is the cudgel for Alito’s assault on the precedents established by Roe and Casey. “We begin with the common law. . . .” In this move, Justice Alito locates his understanding of constitutional liberty in the deep past, sealed within the writings and insights of such jurists as Sir Edward Coke (1552–1634), Sir Matthew Hale (1609–1676), and Sir William Blackstone (1723–1780). We’re further instructed that “until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion.” Ipso facto, Roe and Casey are constitutionally illegitimate under the Due Process clause. Of course, as the Court’s opinion in Casey rightly observed, there “was a time, not so long ago, when… ‘a woman had no legal existence separate from her husband….[such views] of course, are no longer consistent with our understanding of the family, the individual, or the Constitution.” Perhaps Justice Alito and his majority wish to jettison this understanding of constitutional equality and return to the common law view of women? Perhaps we should look to the treatises of Sir William Blackstone, rather than the opinions of Justice Ruth Bader Ginsburg, for our understanding of equal protection? Do men now possess a constitutional right to rape their wives, in accordance with the common law understanding of marriage and liberty?

While Justice Alito devotes great attention to the finer points of common law liberty, he does “briefly address one additional constitutional provision that some of the respondents’ amici have now offered as yet another potential home for the abortion right: the Fourteenth Amendment’s Equal Protection Clause.” He swats the clause away as quickly as he considers it: “it is squarely foreclosed by our precedents.” It should be noted that the Mississippi law was also “squarely foreclosed” by the precedents of the Court; why those precedents are open to reconsideration and overrule but the precedents on Equal Protection are not is never properly explained by our devotee of consequence-free jurisprudence. In a ninety-eight-page opinion on a matter that impacts the capacity of women to participate equally in the life of the Nation, Justice Alito devotes just a single paragraph to the Equal Protection Clause of the Fourteenth Amendment. He thus fails the very test he himself established: “it is important for the public to perceive that our decisions are based on principle, and we should make every effort to achieve that objective by issuing opinions that carefully show how a proper understanding of the law leads to the results we reach.”

The Supreme Court justices who have overturned Roe and Casey tell us that they only go where “the law leads,” but the political right in the United States has been at work for over a generation to build a radical judicial bench to reshape the law according to their political desires. The accelerating radicalization of the Right takes shape, somewhat paradoxically, both within constitutional law (as in the effort to overturn Roe) and against constitutional democracy (as in the effort to overturn the election of 2020 via a coup). These are twinned phenomena. And if the coup against the 2020 election ultimately failed, one should recall that the coup against the 2016 election succeeded, at least in part. When Senator Mitch McConnell stripped President Obama of the ability to appoint a replacement for Justice Scalia after his death, he nullified the “authority of the people” to govern within an existing constitutional framework; this became even clearer when McConnell rammed through Amy Coney Barrett’s nomination to the Court in the final months of the Trump administration in direct contradiction to his stated principle that justices should not be confirmed in an election year. As I’ve written previously,1 “Mitch McConnell has imagined that he and his majority could conjure a world in which one set of constitutional rules would apply to their party and another would apply to the opposition party. Such a regime is not simply dependent on everyday political hypocrisy: it in fact signals the very impossibility of constitutional government.”

Justice Alito concludes his opinion in Dobbs with an assurance that overturning Roe merely heralds a return of “authority to the people.” Given that the current majority of the Court was installed by Presidents who arrived in the White House after losing the popular vote and occupy seats stolen by anti-constitutional radicals in the Senate, the people should cultivate the same attitude towards this Court that the Right has for constitutional democracy: one of limitless contempt.

  1. https://www.nplusonemag.com/online-only/online-only/rule-that-is-no-rule/ 

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