Why the Supreme Court Won't Overturn Roe
The release of the draft decision to Politico of the Dobbs v. Jackson Women’s Health Organization Supreme Court decision written by Samuel Alito caused a political and legal earthquake. This almost unprecedented breach of confidentiality was an attack on America's legal traditions. Like many people, I was surprised, if not shocked, but less concerned about the effect of leaking the draft as I have felt for many years that at least the oral arguments before the Court should be televised. As Chief Justice John Roberts stated, after confirming the authenticity of the draft, it was not the Court's final decision and called it "a routine and essential part of the Court's confidential and deliberative work." That sounded right to me. Write a decision overturning Roe and run it up the flagpole and see who salutes and what problems it creates. This is too subtle a point in a fraught political climate of tweets, sound bites, and the constant need to raise political funds.
I gave it no more thought until receiving a call from our daughter, who is in her prime childbearing years, saying that she had been so upset all day that she had difficulty concentrating on her job. She lives in Texas, where recently passed SB 8 bans abortions after six weeks. She told of a nurse friend who had a patient who lost her fallopian tubes because they were not allowed to give her a therapeutic abortion before the infection set in. She also said her friends seeking in-vitro fertilization were scared to proceed because aborting some of the implanted embryos, a routine medical procedure, might not be allowed. So, the laws to make abortion more difficult supported by the so-called pro-life forces seem to be having the opposite effect of preventing people from having children. Bans on abortion that allow the procedure to save the life of the mother are less merciful than they seem. They force a family already facing a healthcare crisis to go to court simply to get the best care for a wife or daughter, adding legal costs to medical expenses and increasing the risk to the pregnant woman by delaying treatment.
Still, I reassured our daughter that I didn't believe that even this Court would permit states to prohibit abortion in cases of rape. Rape is a capital crime, not to mention the trauma to the victim. A rape victim in Texas, who might be in the hospital seriously injured, has only six weeks to decide what to do in case they were impregnated during a crime? Then, I decided to do something I've never done, and something I'm pretty sure none of the demonstrators outside the Justices' houses or organizers at Planned Parenthood have done. I decided to read all 98 pages of Alito's draft and to see what it says.
The draft isn't about abortion, per se; it's about whether there's a right to abortion in the Constitution. Of course, Alito concludes there isn't and that it's up to the states. There is no argument that abortion is not mentioned in the Constitution. Alito also argues that there is also no constitutional grounding for having different legal standards for the trimester scheme. So, according to Alito, anything from a total ban on abortion to permitting abortion on demand at any point in a pregnancy is permitted by the Constitution, but the responsibility for deciding lies with the states. Alito's decision isn't about abortion, it's about whether legal norms were followed in Roe v. Wade. His position is that abortion is not one of the unenumerated rights, as claimed by Roe's supporters.
Of course, there are unenumerated rights in the Constitution, for which there is a test. "In deciding whether a right falls into the list of fundamental rights that are not mentioned anywhere in the Constitution, the Court has long asked whether the right is 'deeply rooted in [our] history and tradition' and whether it is essential to our Nations' 'scheme of ordered liberty.'" (p.11)
The key to the whole debate is the 14th Amendment, the Due Process clause, that makes Constitutional rights applicable to the states. Prior to the Civil War, the Constitution applied only to actions of the Federal government, not state governments. States can and did routinely regulate guns until the Supreme Court suddenly found in District of Columbia v. Heller (2008) an unenumerated individual right to keep a firearm in the home. The Court found that right by rewriting the Second Amendment, changing the subject of the sentence from "A well-regulated militia" to the dependent clause, "the right of the people to keep and bear arms."
Alito then explains that while the right to keep and bear arms is in the Constitution, it applies to the states because 22 of 37 states protected the right to keep arms when the 14th Due Process Amendment was ratified in 1868, whereas at that time, three-quarters of the states had made abortion a crime at any stage of pregnancy and the rest of the States would soon follow. So, there is no unenumerated right to abortion in the Constitution, although there is one for individual ownership of guns in the home.
And that is ignoring the fact that when the Second Amendment was written, guns weighed ten pounds, and an experienced marksman could shoot only three or four bullets per minute. Today, automatic weapons shoot as many as 800 to 1,500 bullets per minute, making a modern armed person equivalent to a militia of 200 to 300 men. That's why a shooter can kill dozens in two minutes. That's why a two-year-old can open its mother's purse, remove a pistol, and shoot her in the supermarket, killing her. Or why a four-year old can kill his six-year-old neighbor, or a ten-year-old fatally shoot his 12-year-old brother.
The weapons when the Second Amendment was written were notoriously inaccurate. A firing squad of six soldiers failed to kill a condemned man from a distance of eight yards (24 feet.) The guns were inaccurate at 50 yards and useless at 100, while modern sniper rifles can kill from a distance of two miles. The idea that the authors of the Constitution intended for an individual to have the firepower of a well-regulated militia defies reason and belief.
One-third or 30 pages of Alito's decision are devoted to Appendices A and B detailing the text and dates of the 50 states plus the District of Columbia that criminalized abortion, beginning with Missouri in 1825. Eventually, all states would criminalize abortion. Notably, every state did so before women won the right to vote in 1919, with Mississippi, the defendant in Dobbs v. Jackson Women's Health Organization, the current case before the Court, the only exception, which waited until 1952. Not only did women not have the vote in 1868, but they also couldn't own property, and if they worked, their wages belonged to their husbands.
Alito's test for unenumerated rights is that if they weren't around in 1868, then the only way to get them is through a Constitutional Amendment. Amendments must be approved by ⅔rds of each house of Congress and then by ¾ of the states, a difficult and time-consuming process. There are only 27 Amendments, including the first ten, the Bill of Rights, that were necessary to get the Constitution ratified in the first place. The Constitution is basically an operating manual for the government. Do we want to start loading it up with specific policies?
Not to mention changes in social behavior, the medical profession has made significant strides since 1868, but none of it can impact the abortion issue from the "strict constructionist" legal philosophy so beloved by anti-abortionists. Protecting the property of slaveholders, as the children of slaves became the property of their owners, was another reason for banning abortions in the past. Missouri banned abortion in 1825, Alabama in 1841, Virginia in 1848, Texas in 1854, and Louisiana in 1856.
According to Alito, laws regulating abortion are just another health and safety measure like requiring children to be vaccinated or making homeowners hook up to sewers.
The Role of the Supreme Court
Leaving aside the question of abortion for the moment, there is another side to this question. Namely, what is the proper role of the Supreme Court? Alito says Roe v. Wade was wrongly decided from the start, although what he really means is that the Supreme Court was wrong to decide it, not that the decision to allow abortions was wrong. This inflammatory wording shows the true intent of the draft. As the Supreme Court has no power to allow abortions, it has no power to prohibit them, either.
The Supreme Court is the highest tribunal in the land from which there is no appeal. It is governed by a concept called Stare Decisis which means to stand by things already decided. This standard is designed to accomplish several important things. It protects the interests of those who have taken action in reliance on a past decision. It reduces incentives for challenging settled precedents, saving parties and courts the expense of endless litigation. It fosters evenhanded decision-making by requiring that like cases be decided in a like manner. It contributes to the actual and perceived integrity of the judicial process. It restrains judicial hubris and reminds us to respect the judgment of those who grappled with important questions in the past. As Neil Gorsuch wrote in A Republic If You Can Keep It, "Precedent is a way of accumulating and passing down the learning of past generations, a font of established wisdom richer than what can be found in any single judge or panel of judges."
One of Alito's reasons for overruling Roe v. Wade is that it failed to provide clear guidance or end the national division by treating the Court's decision as the final settlement of the constitutional right to abortion. His solution, however, turning the issue over to fifty different states plus the District of Columbia, seems guaranteed to create a stream of litigation forever, the exact opposite of one of the core purposes of judicial supremacy. "We now overrule those decisions and turn that authority to the people and their elected representatives."
Turning the power to regulate abortion to the states does not treat every person equally because not all voters are equal in every state. Mississippi has a unique way of electing its Governor. While in all other states the candidate with the most votes wins, in Mississippi the winner has to win the popular vote, plus a majority of the 122 House districts. This 1890 provision was added to the Mississippi constitution specifically to keep white people in control. Blacks are 39% of Mississippi's population, the highest percentage of any state in the union, but because of segregated housing patterns, have a majority in only 34.4% of the state house districts. No black candidate has ever won a statewide race in Mississippi. Now the Supreme Court is saying this democratic system can decide that a rape victim in Mississippi can be denied an abortion.
The entire statement that the Court just interprets the Constitution and leaves politics to the elected representatives is a lie. The Constitution makes no mention of the Supreme Court in deciding contested presidential elections. If the Electoral College can't agree, the House of Representatives decides, with each state having one vote.
In 2000, the Supreme Court violated its own precedents by intervening in Florida's presidential election count. It created new rules after the fact and then, in a novel twist in deciding democratic elections, stopped the count before all the ballots could be examined and the actual winner determined. The Supreme Court turned a presidential election into a sports contest. Time's up. Whoever's ahead on the scoreboard when time runs out is the winner.
The 2000 Bush v. Gore decision makes Roe v. Wade look like the model of judicial restraint. For the sixteen years Justice Antonin Scalia lived after the Bush v. Gore decision, whenever asked about it, answered, "Get over it." He couldn't justify it. It was a raw exercise of judicial power unconnected with anything in the Constitution and in violation of numerous precedents.
When precedents are overturned, there is a knock-on effect in all the other laws that rely on that decision's reasoning to resolve other issues. To prevent Bush v. Gore from impacting other cases, the Court limited its opinion to the current case, in effect admitting it was not legally justifiable.
Alito is following the Bush v. Gore dodge, "And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on the precedents that do not concern abortion." (p.62) In other words, women have rights, but when it comes to the issue of abortion, then they have a different set of rights depending on the state legislature's decision of when and if the fetus they are carrying is "life." Tellingly, Alito doesn't even mention the rights of women in his draft. Only the rights of the unborn, state legislatures, and the Supreme Court.
The Constitution as a Sacred Document
The argument over abortion has been going on for over 2,000 years, since Aristotle. The problem is not abortion but the so-called "strict constructionist" justices who see the Constitution as a sacred document whose literal meaning must be followed to the letter as it was written over 200 years ago.
The strict constructionists have turned the Constitution from a legal into a religious document. When does life begin? And who gets to decide? The standard used by Alito could be used to ban the sale of contraceptives, as the State of Connecticut did until the Supreme Court, in 1965, found in a 7-2 decision an unenumerated right to privacy for married couples. A Connecticut statute had made it a crime for any person to use any drug or article to prevent conception. One of the two dissenting justices thought the law was silly but constitutional. The unenumerated right to privacy comes from this Griswold v. Connecticut decision.
The result of so-called strict construction is that the court's unenumerated rights decisions are about history, not about law. What was the meaning of this phrase or that in 1868? What did "a well-regulated militia" mean in 1789. [Hint: the majority in the Heller decision that found an individual right to keep a gun ignored the first four words and pretended they had no bearing on the Amendment.]
The real problem is that the Supreme Court has become disconnected from reality. Alito wrote: "We do not pretend to know how our political system or society will respond to today's decision overruling Roe and Casey. [This was written before the draft decision was leaked - to let him know.] And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision. We can only do our job, which is to interpret the law, apply longstanding principles of stare decisis, and decide this case accordingly."
This is probably the single most mechanistic definition of the purpose of the law imaginable. What about justice? What about people's liberty? What about their right to life? Alito acts like the Supreme Court is not part of the political process in the United States after picking a president, after saying money is speech, after permitting the exclusion of some candidates from debates and the disparate financing of others, after saying slaves aren't people, after condoning segregation and then overruling it to require integration, it has no obligation to pay attention to the concrete results of its decisions? Who, exactly, are they working for? Even physicists no longer believe in objectivity.
The Constitution is a document that apportions powers between the different branches of government to ensure that no one of them can act without some involvement of the others. That's why it's called the balance of powers. It is a blueprint or the software for how issues get decided, not what gets decided. Justices are appointed by the president and confirmed by the Senate. They are then supposed to stick to deciding cases according to law. By overturning Roe on the grounds articulated in Alito's draft, it is saying, whoops, we made a legal mistake in 1973, so now women must lose the right to abortion they've had for 49 years until the legal error that we made forty-nine years ago is corrected.
The Problem With the Senate
Senate Majority Leader Mitch McConnell disabled the Court for an entire year after the death of Antonin Scalia by refusing to allow any Supreme Court nominee proposed by President Obama to even be considered by the Senate. The Senate went on strike, refusing to do one of its' clearly mandated Constitutional functions ‒ confirming court justices. McConnell claimed that the seat should be filled by the next president. It failed to confirm many lower court justices as well. Justice Scalia died on February 13, 2016, 24 days shy of one year before the next president would be sworn in. McConnell then had the gall to say that telling Obama that no nominee of his would be considered was the proudest day of his life.
Then, after Ruth Bader Ginsburg died on September 18, 2020, less than seven weeks before the November election and four months and two days before the inauguration of the next president, McConnell rammed through the confirmation of Amy Coney Barrett. No let the next president pick the justice this time. The people then voted out McConnell as Senate Majority Leader and Donald Trump as president. When people flout traditional norms and think they're clever, other people respond in kind. Hence, the unprecedented leak of the draft opinion.
The Legal Guild
The problem is not the Constitution, the Court, the Congress, the state legislatures, or the people. It's the Justices. How did we get to the point where the Supreme Court Justices act like they don't have to consider the effect of their decisions? Where fictions and imaginary beings have more rights than people? The Supreme Court has become a medieval guild.
Until 1955, people appointed to the Supreme Court had been major figures with a record of accomplishment. Appointment to the Court was an honor bestowed on people with a lifetime of extraordinary feats in their past. Confirmation hearings were perfunctory because nominees had extensive public records known to all.
There have been 113 members of the Supreme Court. In the first 166 years, from 1789 to 1955, there were 86 Associate and Chief Justices. Seven had been Governors of their states. Twenty-seven others had served in either the United States House of Representatives or the United States Senate. Almost 40%, 34, had been either governors or members of Congress. One, William Howard Taft, had been President of the United States, and another, Charles Evans Hughes, had been the Republican Party's nominee for President in 1916. Seventy-five had been elected mayors, state legislators, or served in Cabinet positions. Some hadn't even graduated from law school.
By contrast, of the 27 Justices who have been appointed since 1955, only one, Sandra Day O'Connor, has been elected to public office. Only one, Arthur Goldberg, had been a member of the Cabinet. Stretching the point, Thurgood Marshall was Solicitor General. The other 24 were just lawyers who had been appointed lower court justices before ascending to the Supreme Court. Clinton tried to return to a more diverse bench but failed to get New York Governor Mario Cuomo to agree to go onto the Court.
The current Supreme Court is a well-connected clique. Less than 10% of students in the United States attend private high schools. Five of the six conservative Justices (83%) went to private high school. Justice Kavanaugh and Justice Gorsuch went to Georgetown Prep, an all-male Jesuit high school, whose tuition is currently $40,000 a year for a day student and $60,000 a year for a boarder.
Six of the nine Justices have clerked for other Supreme Court Justices. Neil Gorsuch was the first Justice to serve with a Justice for whom he clerked. The nine justices are graduates of three law schools: Harvard (3), Yale (5), and Notre Dame (1). It's a self-selecting unaccountable elite that, as Justice Alito now tells us, must act without regard to whether the people approve of the decision.
So, what happened in 1955 to change the direction of the Court? It came after the 1954 Brown v. Board of Education decision that rocked American race relations. Chief Justice Earl Warren, the only Governor of California to win three terms, engineered a unanimous 9-0 decision on a highly divisive issue. Of the other eight justices, three had been United States Senators, two had been United States Attorney Generals, and one of whom had been the prosecutor at the Nuremberg War Crimes Trials. In contrast with the current court, the Brown nine justices attended eight different law schools, and one failed to graduate.
Brown overturned Plessy v. Ferguson, which upheld segregated railroad accommodations in Louisiana. The plaintiffs said that segregation was a "badge of slavery" as outlawed by the 1883 Civil Rights Laws passed to enforce the 13th Amendment. The railroad supported Plessy because of the expense of the extra carriages the segregation law required. The Supreme Court held 7-2 that separate treatment did not imply the inferiority of African-Americans. Segregation did not in itself constitute unlawful discrimination. If black people felt inferior because of the separation, that was their psychological problem, according to the Court's reasoning. As long as the accommodations were equal, segregation was lawful. That's why the Court in Brown was forced to say that separation was inherently unequal. It was the substance of Plessy that was overruled, not the method of its being decided. Alito's draft, while referencing Brown, does the opposite.
But the trigger for Brown was that the United States was engaged in a global competition with the Soviet Union for the allegiance of the African nations emerging from colonialism, and failure to eliminate domestic racial segregation would have been a deal killer. The Shinkolobwe uranium mines of Katanga Province in the Congo supplied most of the fuel for the Manhattan Project in World War II, and keeping it out of Soviet hands was a national security imperative in the nuclear age. Hence the Congo War erupted when it became independent from Belgium in 1960. Katanga then tried to secede with Belgian mercenary and covert CIA help.
The Supreme Court faces a similar existential crisis with the Roe decision. It must answer the question of whether there is there a permanent body of law independent of the opinions of the judges. Only by upholding the basic tenets of Roe and Casey can the Court continue to claim legitimacy as a judicial as opposed to being a political body.
Why Democracy Works and Is Better than Dictatorship
Democracies are more effective than dictatorships because the majority must take responsibility for governmental decisions and has no one to blame but themselves if they don't like the result.
Sometimes voters elect the solution like bringing electricity or high-speed internet to the farms, and sometimes they elect the problem. It was a life-long anti-communist like Richard Nixon who recognized communist China in order to end the Vietnam War, a position left-wing Democrats had advocated for years.
The Supreme Court currently faces an existential choice. With five Catholics, and a sixth who went to Catholic High School, it must decide whether it is a judicial body. Overturning Roe sends the clear message that the law is whatever the sitting justices think it is. It will make the Court the center of all politics, a group like the Guardian Council in Iran that has the final say over everything in the government. Future confirmation hearings will be all about what the justices think about political issues.
However, if it upholds the core principles of Roe, it upholds the legal doctrine of stare decisis, accepting prior results, and will finally settle, once and for all, the question of a woman's right to an abortion. The problem, the Justices who personally oppose abortion, are being forced to govern ‒ to decide whether they will support stare decisis the core responsibility of the Supreme Court.
The Supreme Court's decision in Roe will be a teachable moment in American History. Just as the 2016 and 2020 presidential elections put the heretofore overlooked Electoral College front and center in people's political consciousness and understanding, the Jackson's Women's Health decision will do the same for the Supreme Court.
The leak of Alito's draft is a disaster regardless of the outcome. It has destroyed the traditional trust between the justices and the secrecy of its deliberations. I'm not sure the latter is a bad thing. The public needs to better understand how the justices arrive at these important decisions that govern their lives. But worse, if the Court should now uphold Roe, the anti-abortion crowd will claim the Justices caved to mob pressure unleashed by the leaked draft. If the Court overturns Roe, it will be just another blow to the already tarnished reputation of the Supreme Court and government. No matter how the Court decides, someone is going to end up being very angry.
The Court is in a precarious position, but given the balance of forces, I think it has no choice but to uphold a woman's right to choose, at least in the first trimester of pregnancy. I also think Alito's draft was just a discussion piece, not a serious decision, as women's rights were unmentioned. Now, along with the decision, the Court faces the task of dealing with the questions of secrecy and transparency in its own operations. One can safely say the Court is in crisis.
The Constitutional Convention deliberately kept no notes, so future generations would have only the text to consult, like the Ten Commandments. It is in that tradition that the Supreme Court keeps its deliberations secret, leaving only the decision to guide lower courts. Alito's draft doesn't fulfill any of the functions of a decision. It passes the buck. That's why I think it was leaked, probably by a clerk or an employee in the print shop who misunderstands how the justices write an opinion.
Justice Oliver Wendell Holmes, Jr., one of the Supreme Court's most famous and quoted justices, was one of the 11 appointed before 1955 who had never been elected to public office. He had been wounded three times in different battles in the Civil War.
Holmes, one of the few scholars ever to sit on the Court, has been identified as the third-most cited American legal scholar of the 20th century. He wrote: "The life of the law has not been logic; it has been experience."
The problem with the current Supreme Court is that the law is the only experience that the nine sitting justices have ever had.