For decades, activists across the political spectrum have believed that Supreme Court justices are pretenders — ideologues and partisan hacks who try to disguise personal agendas behind black robes.
Justice Samuel Alito’s startling draft opinion revoking a constitutional right to abortion, joined by four colleagues to form a provisional narrow majority, puts this old critique in a somewhat new light: Ideological aims and partisan ones are at least partly in tension.
On narrowly partisan grounds, not many Republican operatives would advise that the best strategy for the 2022 midterms and 2024 presidential elections is to put abortion rights front and center in a consuming national debate. But if the court follows through with its draft opinion — obtained by POLITICO and published Monday night — front and center is where it will be, even as polls consistently show majorities of 60 percent or more wish to leave the 1973 Roe v. Wade decision intact.
Alito plainly does not care about that.
For years, on abortion, the Supreme Court’s conservative majority has been divided by jugglers and brawlers. Jugglers, led by Chief Justice John Roberts, have tried to balance competing principles — a willingness to revisit Roe at margins while also respecting precedent and trying to preserve the mystique of oracular detachment on which he believes the court’s legitimacy depends.
The brawlers, led in this instance by Alito, say to hell with that.
His draft opinion on Dobbs v. Jackson Women’s Health Organization — the case has not yet entered the national shorthand, What’s your view on Dobbs?, but presumably soon will — runs for 98 pages of argument and citations. But its essence can be summed up in three words: Bring it on.
Let’s stop pretending, he writes in bristling, vehement words that he plainly has been sharpening in his mind for decades, that intensely opposing views about the morality of abortion can or should be resolved by the courts. Let’s recognize, he argues, that much of the language swirling around the legal debate — Latin phrases like stare decisis, medical concepts like fetal viability or gestational trimesters, and so on — is so much sophistry and an evasion from the heart of the matter.
As he sees it, the heart of the matter is that there is no legitimate constitutional right to abortion and never was — “Roe was egregiously wrong from the start” — and so the whole matter should be thrown to the political arena. That’s where one of the most intimate dimensions of human life can be debated in a loud, thrashing, angry debate, right out in the open.
Even people who have labored for decades to preserve a woman’s right to decide for herself whether to carry a pregnancy might agree there is something crisp and free of pretense about where a majority of the Supreme Court appears ready to go. In recent years, many of these activists — seeing the legal foundations of Roe gradually eroding — have voiced their own version of the Alito argument: OK, then, you want a political fight? Let’s have it.
Historically, many abortion rights supporters have believed that putting that debate out in the open — and on the ballot — at a moment when the stakes are undeniably clear is a winning proposition for them. The logic is that anti-abortion activists are always focused and hyper-engaged, while the broader majority who supports abortion rights often will organize and vote on the issue when they feel their rights are imminently threatened.
A related argument is that Roe v. Wade had the opposite effect of what many of its backers wanted. Instead of removing the issue from politics, a backlash to the court was the engine for a new conservative movement in the 1970s. It may even have inhibited the process by which political debate in the states was gradually leading to more liberal laws and possibly a more durable consensus on abortion rights. In some moods, such feminist legal pioneers as the late Justice Ruth Bader Ginsburg explored this possibility. Alito, almost tauntingly, quotes her from 1992 (a year before joining the high court) on how Roe may have “prolonged divisiveness” and “deferred stable settlement of the issue.”
It is hardly the most relevant angle on the story — not compared to the tangible, real-world effect on individuals if the draft opinion or something close to it is what the Supreme Court decides in its official decision in coming weeks — but one must note that there is plainly a kind of rough-hewn principle in Alito’s thinking.
He clearly has strong ideological views, but that makes it harder to level a charge of partisanship — especially if Democrats are able to mobilize voters around abortion rights.
Compare this case, for instance, to the 2000 case of Bush v. Gore. Then, a narrow majority of Republican-appointed justices seemingly put partisanship over legal principle when they ignored their own pious sermons about interpreting the Constitution narrowly to invent an ad hoc rationale that awarded a disputed presidential election to George W. Bush.
Alito doesn’t look to be guilty of that kind of hypocrisy. His eagerness to attack Roe v. Wade has been obvious since he joined the court in January 2006. He seems entirely sincere when he writes in the draft that justices should not be “affected by any extraneous influences such as concern about the public’s reaction to our work.”
Fidelity to his own principles seems closely linked to another trait that jumps off the page of his draft. He comes off as a contentious, self-assured loudmouth. Many passages sound less like a formal legal ruling than the argumentative tones of a relative who gets carried away at Thanksgiving — Do we have to talk politics over dinner? — or the fellow at nearby table at a neighborhood tavern— Sir, would you mind terribly lowering your voice just a little?
His draft vibrates with contempt. Arguments made in previous abortion cases are not just misplaced but “very weak,” just as Roe was not just wrong but “egregiously wrong.” He doesn’t stop at saying there was not much support for a constitutional right to abortion until the latter half of the 20th century, he adds: “Zero. None.”
These brawling instincts were apparently compelling — at least in the privacy of Supreme Court chambers — to four colleagues who voted with him: Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. It’s worth remembering that a draft opinion is a draft: Some of these people may, upon consideration, decide that they would rather try to keep juggling on abortion for a while. That would lead to a more modest final opinion, that trims Roe v. Wade but defers the fateful confrontation that Alito so urgently wants.
Whatever happens, however, the self-confidence of his jurisprudential mind is now part of the public record. It invites the question: What makes him so sure of himself?
The draft opinion is replete with references to the advantages of turning a complicated moral issue over to the political debate in 50 states. But there’s nothing to stop the nationalization of the debate at the congressional level — outlawing abortion everywhere if Republicans chose to do so with a narrow majority next time they take control of Congress, or the opposite when Democrats are in charge.
Alito declares that none of the arguments in his ruling will affect current law on the right to marry or contraception. But he can hardly declare that by fiat, since some of those rights rest on the same legal principles and precedents that buttressed Roe. The idea that abortion will now primarily be the province of the political branches rather than the judicial one seems unlikely. If some states are right that abortion is the equivalent of taking a human life, court cases with plaintiffs that all fetuses in all states have the same constitutional protections are inevitable.
Citing sources from Abraham Lincoln to 20th-century philosopher Isaiah Berlin, Alito reflects on the 14th Amendment’s reference to “liberty” before lecturing, “we must guard against the natural human tendency to confuse what the Amendment protects with our own ardent views about the liberty that Americans should enjoy.” But there is not a hint in the draft opinion that Alito is applying those cautionary words to himself.
Bring it on means bring it on. Neither Alito nor anyone else can be sure what will follow and where it will lead.