Susan Walsh/AP Photo
Aziz Huq
Tue, May 3, 2022
If the draft majority opinion by Justice Samuel Alito disclosed by POLITICO Monday night is any guide, the constitutional right to abortion has only a few days or weeks left to go. The most conservative majority of the Supreme Court that was, already a decade ago, arguably the “most conservative in modern history” has singled out Roe for excoriation and oblivion. But what marked out Roe to this fate, and not many other decisions? It is not the reasons provided in the draft Alito opinion: The explanation for Roe’s demise is to be found not in law, per se, but in the court’s entanglement in our pernicious moment of partisan hyperpolarization and the Republican Party’s inextricable link to anti-abortion politics.
Chief Justice John Roberts has acknowledged the document is authentic, and its style certainly suggests it is indeed by Alito. So, how does his rationale for overturning Roe stack up as a justification for a large, and likely convulsive, change in American society? The reasons flagged by the draft opinion fall painfully short. In fact, their profound weakness highlights precisely why Roe and abortion rights have been singled out. Go down the list of contentious legal questions, and it quickly becomes clear that conservatives do not follow Alito’s approach anywhere else besides Roe.
For instance, the draft majority opinion spills a good deal of ink on the history of abortion regulation in England and the United States (skimming over, as it does it, the considerable periods in which abortion was left to the free choice of women). But precisely this kind of appeal to a history of close regulation can be made in respect to the Second Amendment right to bear arms. As the legal scholars Reva Siegel and Joseph Blocher documented in extensive detail, there is a “centuries” old tradition of common law rules regulating weapons, especially when they are carried into the public sphere. This has not stopped the conservative justices from creating a novel individual right to bear arms and extending that right against both the federal and the state governments.
Next, the Alito opinion spends a good deal of energy shellacking the reasoning of Justice Harry Blackmun’s 1972 opinion in Roe v. Wade. The opinion, says Alito, is “hard to defend” and “egregiously wrong.” But by the very standards that Alito himself brings to bear, there are many opinions that are so “egregiously wrong” that they should be chucked out. And yet they awake nary a peek from our most conservative of courts.
To see this, it is helpful to see why Alito says Roe is wrong. The core of Alito’s argument is the idea that the Roe Court defined the “liberty” protected by the 14th Amendment at too high, and too abstract, a level of generality. It is, in other words, unanchored from the text of the Constitution. But let’s say we took seriously the idea that the court should avoid readings of the Constitution pitched at too high a level of generality, and not anchored in the text of the Constitution. What else would have to go?
The first thing to go would be the Roberts Court’s rulings on the so-called removal power of the president to oust agency heads, which has been used to attack the regulatory state. Next to go would be the court’s rulings that an ambient, unwritten principle of “state sovereign immunity” precludes all sorts of damages claims against the federal government. This despite the fact no such principle is mentioned in the Constitution. Ironically, Alito himself authored one such opinion almost exactly a decade ago. And third, consider all of the court’s campaign finance opinions: They interpret the word “speech” in the First Amendment at a highly abstract level to sweep in not just speaking but spending — a sleight of hand that would have seemed absurd in 1791.
Is the Supreme Court about to throw out its campaign finance jurisprudence, its special solicitude for the government’s purse, or raw presidential power? Don’t get your hopes up.
There’s more, but it’s embarrassing in its meagerness. Abortion, Alito says by way of example, is just different from other fundamental rights — including the right to marry and the right against involuntary sterilization — because it raises a “critical moral question.” The suggestion here is that miscegenation laws and state eugenics programs raise no “critical” moral issue. This is worse than absurd; it’s morally obscene.
The reasons Alito himself gives, in short, for singling out Roe cannot explain the decision to overrule that case. All apply equally to opinions that Alito and colleagues have embraced and enforced with vigor.
So what then is going on? The answer is embarrassingly clear. When Alito cautions against the injection of the justices’ own “ardent views” into the law, he skips over a fateful step. The problem with Roe and the draft Dobbs opinion alike is not that they are tainted with the tincture of the justices’ own views. Of course they are: Just notice Alito’s loaded pejorative talk of “abortionists” if you were doubtful on this score.
No, the problem is that the sole explanation for the disparate anger and disdain targeted at Roe is that that right to abortion has been the ardent target of key factions within the Republican Party for years. And the untimely death of Justice Ruth Bader Ginsburg allowed former President Donald Trump to deploy judicial appointments to deliver Roe’s execution notice in late 2020. When Justice Sonia Sotomayor pointed this out at oral argument in Dobbs, she was only stating what every single participant in the confirmation battles of the last several years well understood, and only the willfully blind could deny.
Indeed, what is striking about the modern Supreme Court is not so much that its members have “ardent views” but that those views reflect the immediate priorities of the Republican Party. Abortion, of course, is central to key religious elements of the Republican coalition, and thus an election issue of singular importance. But to make my point, a non-abortion example may be helpful: Until the Obama presidency, there was broad agreement among both liberal and conservative justices over the idea that courts should generally give federal regulatory agencies a great deal of leeway. But in 2016, the Republican National Committee included in its platform item an attack on such deference. In short order, the legal historian Craig Green has demonstrated, the attack was taken up by conservative think tanks, and then by conservative justices. On this issue, as on abortion, the arguments professed as law have nakedly partisan origins.
The tight linkage between the Republican Party and the conservative faction of the Court is not distinctive to these issues. But it is without precedent in recent American history. Political elites have long sought to appoint fellow travelers to the bench. But the present moment is fundamentally different because of the extraordinary combination of once-in-a-century partisan polarization with the unprecedented growth of an ecosystem of Republican interest groups and academics that have the justices’ ear.
Ironically, one of the reasons that Alito gives for killing Roe is that it had “damaging consequences.” Although the reader is left to guess what Alito thinks he’s talking about here, the very same can and will be said of this Dobbs opinion: It will serve as a proof text that this is no longer the Roberts Court; it serves quite another master.
'Stench' at the Supreme Court: Politically motivated leak over abortion shatters innocence
Justice Sonia Sotomayor surprised many court watchers in December during the oral argument in Dobbs v. Jackson Women’s Health Organization when she complained about the "stench" of politics pervading the case over abortion rights.
The stench became overwhelming Monday night when Politico published a leaked copy of a working draft of the majority opinion in Dobbs. Chief Justice John Roberts verified the draft's authenticity Tuesday and launched an investigation.
The leak was a despicable act that shocked even the most cynical in Washington.
The draft opinion, if left unchanged, would sweep away Roe v. Wade and decades of precedent.
The author, Justice Samuel Alito, declares, "We hold that Roe and Casey must be overruled. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives."
This draft and the alignment of justices can change. What will not change is that stench. The court has lost a type of institutional innocence in maintaining confidentiality through decades of hard-fought and heated legal disputes.
Court was island of confidentiality
Even in a city that floats on a rolling sea of leaks, the Supreme Court has long been an island of integrity and confidentiality. It was an inviolate rule that members and clerks do not leak either the deliberations or decisions of the court.
Indeed, for those of us who have covered and written about the court for decades, we never thought this day would come.
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This was clearly a politically calculated act by someone who was willing to abandon every ethical and professional principle for a political cause. There is no obvious reason to leak other than to unleash outside pressure on the court and to try to push Congress to pass the Women's Health Protection Act to codify Roe v. Wade.
If that was the purpose, it seems quickly realized as figures like Sen. Bernie Sanders, I-Vt., used the leak to call for not just the passage of the federal law but for killing the filibuster as well: "Congress must pass legislation that codifies Roe v. Wade as the law of the land in this country NOW. And if there aren't 60 votes in the Senate to do it, and there are not, we must end the filibuster to pass it with 50 votes."
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It is doubtful the leaker expected to coerce a change in votes on the court. It is certainly true that a tentative opinion can change dramatically over the countless drafts sent between chambers. It is common for majority opinions to become dissents or to fracture in a plurality decision as justices work through the issues.
However, this leak makes such second thoughts less likely, not more.
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According to Politico's reporting, Alito was initially joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Any change in the vote would now leave the impression that the court could be manipulated through outside pressure. Indeed, if Roberts was on the fence, this leak, if anything, might push him back toward the right of the court.
Faced with such a raw political act, justices are more likely to dig in than abandon their initial votes.
Political motivations make leak worse
This leak was a move directed at Congress and the midterm elections. In some ways, that makes it even worse.
Politics is the forbidden fruit of judicial ethics. Yet it is a temptation that has been resisted through the years despite the Supreme Court being located across the street from Congress in the middle of a city where politics is the primary industry.
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Sotomayor's complaint of the "stench" of politics in December was viewed by some of us as a departure from the decorum of the court. She was referring to how the three new members were widely viewed as having been nominated to reverse Roe and other cases by sheer force of numbers. It was itself the injection of politics into the deliberations.
Before the argument, Sotomayor shocked many in calling upon students to campaign against abortion laws in anticipation of pending abortion cases before the court. She declared in October, "You know, I can't change Texas’ law, but you can and everyone else who may or may not like it can go out there and be lobbying forces in changing laws that you don’t like."
It now appears that someone with access to internal deliberations of the court decided to find a way to be an instrument of change in a way that will leave a stench for many years to come. Few of us believe that any of the justices would countenance such an unethical act. The investigation instead will focus on the judicial clerks and staff of the court – an investigation that will shatter the court's collegial and sheltered culture.
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One thing is now certain. The court will never be the same. There is a loss of innocence in all of this, a realization that the court is no longer immune from politics.
It is a moment like the one described by physicist J. Robert Oppenheimer at the realization of the atomic bomb: "In some sort of crude sense which no vulgarity, no humor, no overstatement can quite extinguish, (we) have known sin; and this is a knowledge which (we) cannot lose."
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors. Follow him on Twitter: @JonathanTurley
You can read diverse opinions from our Board of Contributors and other writers on the Opinion front page, on Twitter @usatodayopinion and in our daily Opinion newsletter. To respond to a column, submit a comment to letters@usatoday.com.
This article originally appeared on USA TODAY: Abortion leak hits Supreme Court with overwhelming political stench
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