Some Questions for the Alito Five

Posted in: Reproductive Law

On the assumption that five Supreme Court Justices—Samuel Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—are prepared to overrule Roe v. Wade and join an opinion resembling Justice Alito’s draft in Dobbs v. Jackson Women’s Health Org. (“the draft”), we have some questions.

1. Timing.

When a decision you consider misguided has lasted nearly fifty years and your Court has rejected at least six prior requests to overrule it, is this the right time to scrap it? You’ve probably noticed that American politics are polarized, that heartbreaking violence is now a regular thing, and that a lengthy and continuing pandemic has put all of us on edge. The abortion issue is, as the draft observes, “bitterly divisive.” Is this a good time to pour gasoline on the flames, erect barricades around your Court, and hunker down? Or are questions like these irrelevant because, as the draft proclaims: “[W]e cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work”?

2. A Court Divided by Party.

When the Justices who decided Brown v. Board overruled Plessy v. Ferguson, a 58-year-old decision upholding racial segregation, they understood that their ruling would generate outrage and resistance. In circulating the first draft of his opinion, Chief Justice Earl Warren wrote that it was “prepared on the theory that [it] should be short, readable by the lay public, non-rhetorical, unemotional and, above all, non-accusatory.” With some nudging, every member of the Court joined Warren’s opinion and declined to write separately.

The contrast between that shining moment in Supreme Court history and the present is striking. The Alito draft is long (67 pages with 32 additional pages of appendices) and evidently written for an audience of historians, legal scholars, and members of the Federalist Society. Rhetorical, emotional, and accusatory, it speaks of Roe as “an exercise of raw judicial power” (twice); “egregiously wrong from the start” (twice); “exceptionally” or “exceedingly” weak (three times); “remarkably loose in its treatment of the constitutional text”; “on a collision course with the Constitution from the day it was decided”; lacking “any grounding in constitutional text, history, or precedent”; and “more than just wrong.”

But the most troubling difference between then and now is that the decision to overrule a longstanding precedent apparently will be made by no more than a bare majority of justices, all of them appointed by presidents of the same political party. Three of you in fact were appointed in rapid succession by the same president and confirmed by narrow margins in the Senate.

The draft assures us: “On many other occasions, this Court has overruled important constitutional decisions.” Leading its list with Brown, the draft describes three of these occasions in text and 25 more in a two-page footnote. Although the draft doesn’t mention it, on six of these 28 occasions, the Court was divided five-to-four with all of the Justices in the majority having been appointed by presidents of the same party.

And it’s been the same party every time. Can you guess which one? Here’s a hint: Your decision in Dobbs apparently will be number seven.

A five-justice majority composed entirely of Justices appointed by Republican presidents once reaffirmed the decision you’ll overrule. It was a very long time ago: 1992. The draft declares that, just as Roe “inflamed our national politics,” the 1992 decision, Casey, “enflamed debate and deepened division.” The draft overrules that decision too. Do you expect your decision in Dobbs to heal us, or do you believe it’s your turn to tear us apart?

After Brown, the draft lists West Coast Hotel v. Parrish (upholding minimum wage legislation) and Barnett v. West Virginia (holding that students in a public school can’t be required to salute or pledge allegiance to the flag) as cases overruling important constitutional decisions. The first of these decision, Parrish, was foreshadowed by decisions several years earlier upholding milk price regulation and a mortgage moratorium. By the time it was decided, as future Justice Robert H. Jackson observed in a remark quoted in Casey, “the older world of laissez-faire was recognized everywhere outside the Court to be dead.”

The Dobbs draft says of the next case on its list: “Barnett stands out because nothing had changed during the intervening period other than the Court’s belated recognition that its earlier decision had been seriously wrong.”

Here’s the story of that belated recognition. Soon after voting to uphold a mandatory flag salute in Minersville School District v. Gobitis, Justice Murphy regretted his decision and instructed his law clerk to look for an opportunity to overrule it. Two other members of the Gobitis majority also had acknowledged their error by the time Barnett came before the Court. Justice Jackson’s opinion in that case began its discussion of stare decisis by emphasizing that recognizing the right of school children to refuse to salute the flag wouldn’t diminish the rights of anyone else.

Only one thing seemed to change between Roe and Casey on the one hand and Dobbs on the other. It wasn’t soul searching by conscientious Justices, and it wasn’t any change in society or new understanding. It was simply a change in the composition of the Supreme Court following a presidential campaign in which the winning candidate declared that a decision overruling Roe would “happen automatically” if he were elected.

Might a future presidential candidate declare that a decision overruling Dobbs would “happen automatically” if she were elected, and might a future majority conclude that your decision in Dobbs was “more than just wrong”? Isn’t it harmful to the Court and the nation when rulings on prominent constitutional issues swing back and forth with the election of new presidents and the appointment of new Supreme Court Justices?

Do any of the differences between the way Brown, Parrish, and Barnett overruled precedent and the way you’ll do it matter? Does the narrowness of your majority matter? Does the division of your Court by party? Does the tone of the draft opinion? Or are none of these things relevant because your job is calling balls and strikes, not statecraft? When you’ve determined that most of your predecessors over the last half century and four of your colleagues have been lousy umpires, is it your duty to say so?

3. An Illegitimate Majority.

Does it matter how the shift in the Court’s composition that produced your majority came about?

Eight months before the 2016 presidential election, the President of the United States nominated a respected jurist to fill a vacancy on the Supreme Court. A Senate majority leader who belonged to a different party announced that the Senate would refuse to hold hearings on the nomination or any other by that president. He maintained that the vacancy should be filled by the winner of the election.

Eight days before the next presidential election, with a president of the leader’s own party in the White House and voting already underway, the same majority leader and all but one of the other Senators of his party provided the votes needed to confirm a Supreme Court nomination the Senate had received only thirty days earlier. The leader’s failure to perform his constitutional duty when the president wasn’t a member of his party, his departure from tradition (and the golden rule), and his boundless hypocrisy were evident. If either the first president had been allowed to fill the initial vacancy or the majority leader had applied to the second president the principle he purported to apply to the first, your one-justice majority wouldn’t exist.

The political grab that gave you power shouldn’t lead any of you to resign or refuse to decide cases. But does it (and the justified outrage it produced) counsel restraint or prudence? The majority leader’s attitude was clear: “I had the power, so I used it (tee-hee-hee).” Is your view the same?

4. Originalism.

Originalism comes in several varieties. Some originalists focus on the specific intentions and expectations of the Constitution’s Framers. This variety led Justice Alito to quip during an argument about the constitutionality of restricting violent video games: “What Justice Scalia wants to know is what James Madison thought about violent video games,” and if “he enjoyed them.” Most originalists today, however, seem to focus on the originally understood public meaning of the Constitution’s text. There’s talk of “new” originalism, “old” originalism, and even “living” originalism. The Dobbs draft doesn’t go deeply into the jurisprudential thicket, and we won’t either. Hardly anyone would describe Roe as an originalist decision, and we think the answers to our questions are unlikely to depend on which brand of originalism you endorse.

But if Roe wasn’t an originalist decision, what was? The phrase due process of law may be the Constitution’s largest inkblot. What was its originally understood meaning? Of the hundreds of decisions interpreting it, can you identify even one—either “procedural” or “substantive”—that adhered to its original meaning?

Historical analyses of the phrase look to 1215 when, in the Magna Carta, King John of England promised to condemn no freeman but “by the Law of the Land.” In 1354, Parliament began using the phrase due process of law in place of that language, and, in Shakespeare’s time, Chief Justice Edward Coke declared that the new phrase meant the same thing as the old. In 1856, the Supreme Court also called the two phrases equivalent, and the most plausible assessment of their original meaning is that they simply required the government to adhere to its own substantive and procedural law when it deprived someone of life, liberty, or property.

As applied to the federal government by the Fifth Amendment’s Due Process Clause, that proposition was redundant. By the time the amendment was ratified as part of the Bill of Rights in 1791, King John was gone. Even without the amendment, the government would have been obliged to obey its own law.

In 1868, the Fourteenth Amendment declared: “[N]or shall any State deprive any person of life, liberty, or property without due process of law.” The Supreme Court soon said that the Constitution’s second Due Process Clause had the same meaning as the first. As applied to the states, however, an originalist understanding of the words due process of law wouldn’t have been redundant. Instead, it would have upended American federalism by making every violation of state law a violation of the Constitution too. Would you have endorsed an interpretation that made a federal constitutional case out of every asserted violation of a city ordinance?

The Supreme Court’s earliest interpretation of the Fifth Amendment clause in 1856 required the government not only to comply with law in effect at the time it deprived someone of life, liberty, or property but also to comply with the common law and statutory law of England insofar as this law hadn’t been disapproved by American colonists before the nation’s independence. There was little evidence the Framers had that idea in mind but equally little evidence they didn’t. So the Court looked to “the law of the land” the Framers knew themselves. Would you have embraced that interpretation? Would you have ruled that old English statutes trump new American statutes and that Americans may never depart from the common law of England again?

The Court abandoned that view in 1884. The English common law required indictment by a grand jury before someone could be tried for a capital or otherwise infamous crime, and one of the other clauses of the Fifth Amendment specifically directed the federal government to use that 600-year-old procedure. But several states allowed prosecutors to commence felony prosecutions by filing a document called an information, and one defendant maintained that this innovation deprived him of due process. In Hurtado v. California, the Court held that the Fourteenth Amendment doesn’t safeguard all common law rights or even all historic rights listed in the Bill of Rights. The Due Process Clause refers instead to the “law of the land in each State . . . exerted within those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.”

With that statement, the game was on. Originalists may shudder, but the Court took on the task of identifying “fundamental” rights. Would you have joined the Hurtado decision? What do you think of this passage?

The Constitution of the United States was ordained, it is true, by descendants of Englishmen, who inherited the traditions of English law and history; but it was made for an undefined and expanding future, and for a people gathered and to be gathered from many nations and of many tongues. . . . There is nothing in Magna Charta, rightly construed as a broad charter of public right and law, which ought to exclude the best ideas of all systems and of every age.

Hurtado empowered judges to distinguish between the old English rights they considered fundamental and those they didn’t, but the limitation to old English rights didn’t stick. The common law had never provided a right to appointed counsel for indigent defendants, but when two young white women accused eight young Black men of rape and an Alabama judge made no effective appointment of counsel before the defendants were convicted and sentenced to death, the Supreme Court held that the state hadn’t afforded the defendants the process they were due. Would you have dissented and permitted Alabama to send the Scottsboro Boys to the electric chair?

Although no one’s heard of it, one Supreme Court decision did adhere to the original meaning. In Walker v. Sauvinet in 1876, the Court held that the Fourteenth Amendment didn’t require Louisiana to provide jury trials in civil cases. It was enough that the state had obeyed its own law: “[T]his process in the States is regulated by the law of the State.”

When just about everything after that decision departed from the original meaning, what’s a poor originalist to do? No originalist believes she should overrule all the decisions of her misguided predecessors, and Justice Scalia explained why he tolerated most of them: “I’m an originalist and a textualist, not a nut.” In construing the Due Process Clause, non-originalist predecessors have given an originalist Justice many options. Should she speak of vested rights, deeply rooted rights, conduct that shocks the conscience, the police power, emanations of penumbras, outrageous conduct, tiers, interest balancing, arbitrariness, selective incorporation, ordered liberty, the principles at the base of our civil and political institutions, or something else? Should she choose the standard that validates the fewest of the existing due process rights the Framers never contemplated? Or the standard that upholds only the oldest of the rights the Framers didn’t anticipate? (That one wouldn’t be good for women.) Or the standard that itself is the oldest or that has the grandest and most archaic-sounding language?

Are you ever secretly pleased that some of your predecessors weren’t originalists? In the wee hours of the night, does it sometimes seem fortunate that their decisions allow you to have your cake and eat it too?

The draft declares: “[The Fourteenth Amendment Due Process Clause] has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this Nation’s history and tradition’ and “implicit in the concept of ordered liberty.’” It cites Washington v. Glucksberg as authority for this proposition. Glucksberg held that the Fourteenth Amendment doesn’t provide a right to assisted suicide. That decision, however, purported to apply the same standard as the 1992 decision in Casey reaffirming the right to an abortion. Why did you pick that one? Why does Glucksberg have more precedential oomph than the older decisions in Casey and Roe?

Your endorsement of Glucksberg raises further questions. In determining whether a right is “deeply rooted” and “implicit in the concept of ordered liberty,” how broadly or narrowly should the right be defined? Casey spoke of the right to make “personal decisions relating to marriage, procreation, contraception, family relationships, and child rearing and education”; of “the right to decide whether to bear and beget a child”; and of “the right to an abortion.” The broader the description of the right, the more rooted and essential it may appear to be. But what makes one description more appropriate than another? Is this the stage where the rabbit goes into the hat?

Casey noted that, rather than prohibit abortion, a state concerned about overpopulation or severely handicapped newborns might mandate it in some situations. And if the liberty protected by Due Process Clause didn’t include the right to decide whether to bear and beget a child, this action would appear to be constitutional. Would you “permit each state to address [the question of mandatory abortion] in accordance with the views of its citizens”?

The draft observes that “the Constitution makes no mention of abortion” and declares that Roe had “no grounding in the constitutional text.” In addition, it concludes that Supreme Court precedents protect only two categories of “substantive” Fourteenth Amendment due process rights—“rights guaranteed by the first eight amendments” and “a select list of fundamental rights that are not mentioned anywhere in the Constitution.” Rights in the second category must pass the Glucksberg test.

It seems “textualist” to emphasize that word abortion never appears in the Constitution. If the Framers had meant to protect a right to abortion, wouldn’t they have said so directly? But the draft appears to have missed one relevant text, and it seems to answer this question. The Ninth Amendment appears just after the first eight, and it reads: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Does the draft not only ignore the Ninth Amendment but also violate it repeatedly by denying or disparaging the right to reproductive freedom simply because it’s nowhere enumerated? Shouldn’t the draft consider this constitutional text too and tell us its original meaning? Is the draft itself unconstitutional?

5. Principled Judging

The draft declares: “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” Abortion, the draft explains, is a “‘unique act’ because it terminates ‘life or potential life.’” The interest in preserving fetal life would matter if the Supreme Court were balancing interests as a legislature does or as Roe did itself when it ruled this interest sufficiently compelling to justify prohibiting some abortions.

But the interest in preserving fetal life has no apparent bearing on the standard the draft purports to apply—whether an asserted right is deeply rooted in America’s history and traditions. The right to engage in private sexual conduct recognized in Lawrence v. Texas, the right to marry a person of the same sex recognized in Obergefell v. Hodges, and the right to engage in nonprocreative sex recognized in Griswold v. Connecticut and Eisenstadt v. Baird have no deeper historical roots than the right to decide whether or not to bear a child. To declare that your decision in Dobbs will cast no doubt on these rights is to limit the decision by fiat.

Unprincipled though your pledge seems to be, we hope you’ll honor it. But does that arbitrary limitation make you at all uncomfortable about accusing the Court that decided Roe of exercising raw judicial power? Did your parents mention that aphorism about people who live in glass houses?

6. Democracy

The draft declares: “It is time to . . . return the issue of abortion to the people’s elected representatives.” Did you mean the minority’s elected representatives?

The Framers of the Constitution offered at most two cheers for democracy. James Madison wrote that pure democracies were “spectacles of turbulence and confusion,” and Alexander Hamilton proclaimed that the ancient democracies “never possessed one feature of good government.” Deliberately undemocratic constitutional provisions such as those establishing the Electoral College and affording each state equal representation in the Senate in fact allowed several of you to become Justices of the Supreme Court after you were nominated by a president who lost the popular vote and confirmed by senators who represented fewer Americans than the senators who voted against confirmation.

We’d change those undemocratic provisions if we could, but they’re the law. None of the judges we’ve met consider themselves entitled to construe the Constitution’s structural provisions in accord with their personal values or to keep these provisions in tune with the times.

Despite their reservations, the Framers established the most democratic government on earth, and American democracy then grew stronger. It took a Civil War and some hard-fought amendments, but Blacks and women ultimately gained the right to vote. And after John Lewis marched and bled, the Voting Rights Act of 1965 began to make the voting rights granted on parchment a reality.

In recent years, however, American democracy has been under assault by the Supreme Court—specifically, by majorities composed entirely of Justices appointed by Republican presidents. We’ll use the term “partisan majority” to speak of cases in which these majorities outvoted all the Justices appointed by Democratic presidents (and—often—some appointed by Republican presidents too). We mean this term to indicate division along party lines rather than to characterize anyone’s motivation.

In 2000, one of these majorities determined the outcome of a presidential election. Eight years later, Justice Scalia said of Bush v. Gore: “Get over it.” But we still haven’t (especially not the one of us—Professor Tribe—who was counsel of record for Vice President Gore). We think of it as the case in which the patron saint of originalists proved conclusively that he wasn’t.

In 2010, another partisan majority hit democracy twice in Citizens United v. FEC. It first overruled earlier decisions allowing Congress to impose distinctive limits on political expenditures by corporations. Then it declared that Congress may not limit independent political expenditures by anyone, thereby establishing a First Amendment right to donate unlimited amounts to Super PACs.

Shortly after the leaked Dobbs draft appeared last month, a partisan majority interpreted Citizens United’s standards in FEC v. Ted Cruz for Senate. The Court distinguished between “the direct exchange of money for official acts, which Congress may regulate, [and] simply increased influence and access, which Congress may not.” The Court said that proof that political contributions changed legislators’ votes couldn’t justify congressional limitation of these contributions, because the changed votes might have been attributable to “legitimate donor influence” rather than “an illicit quid pro quo.”

In 2013, a partisan majority invalidated a key provision of the Voting Rights Act—the one setting forth Congress’s formula for determining which states had so persistently subverted minority voting rights that, before implementing changes in their voting practices or procedures, they needed to submit these changes to the Justice Department and obtain its determination that their innovations wouldn’t have a discriminatory effect. The Supreme Court previously had upheld this provision. But, in Shelby County v. Holder, a partisan majority held it invalid because “things ha[d] changed dramatically” in the years since Congress last revised the formula.

Here’s what the Constitution said about the issue: “The right of citizens of the United States to vote shall not be denied or abridged by . . . any State on account of race [or] color. . . . The Congress shall have the power to enforce this article by appropriate legislation.” And here’s what the majority said: “[A] departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.”

Where did that come from? The Court pointed to no constitutional text. Did the “fundamental principle of equal sovereignty” stand on a stronger footing than the right to reproductive freedom recognized in Roe? Did this principle limit the Constitution’s express grant of power to Congress to safeguard voting rights? Did it justify the Court’s conclusion that states’ rights prevailed over individual rights? Or that a statutory mechanism for protecting voting rights approved by overwhelming congressional majorities was outdated and unconstitutional? Would you describe the Justices in the Shelby County majority as activists?

Within five years of the Shelby County ruling, nearly 1,000 U.S. polling places had closed, many of them in predominantly Black counties. Republican-dominated legislatures had reduced early voting opportunities and imposed new voter-identification requirements. And jurisdictions previously required to clear new voting measures with the Justice Department had increased their voter registration purges.

Last year, in Brnovich v. Democratic National Committee, a partisan majority construed the section of the Voting Rights Act that defines the discrimination the Act forbids. Critics complained that Justice Alito’s opinion often disregarded the statutory text and invited judges to take account of extra-textual considerations.

In 2019, in Rucho v. Common Cause, a partisan majority refused to consider whether political gerrymandering violates the Constitution. The Court declared that issue “political” and “nonjusticiable.” Many legislatures that plainly don’t reflect the will of their states’ voters are now positioned to determine their states’ abortion law.

Wisconsin, for example, is a swing state in which roughly equal numbers of residents identify with each of the major parties. On the day the predicted ruling in Dobbs becomes official, a 173-year-old Wisconsin statute will rise from its tomb and apparently become enforceable. This statute punishes performing an abortion with a prison term of up to six years (or ten if the fetus has quickened), and it makes no exception when pregnancy is the result of rape or incest. Wisconsin’s current attorney general, a Democrat, has promised not to enforce this law, but his principal Republican opponent has promised he will. Their promises don’t matter much, because local prosecutors will decide whether to charge abortion providers.

Most voters apparently won’t welcome the zombie’s return. Sixty percent tell pollsters they believe abortion should be legal in all or most cases. But this super majority may not have the power to return the zombie to its grave. A redistricting plan drawn by Republicans and recently approved by the state supreme court could give Republicans a two-thirds majority in the next legislature even if Democratic candidates win an approximately equal number of votes. There’s speculation that, even if Wisconsin’s Democratic governor wins reelection, this veto-proof majority may outlaw abortion pills as well as the surgical procedures criminalized by the 173-year-old statute.

Is it appropriate for Dobbs to proclaim democracy’s triumph? Or do your decisions make the “pro-democracy” case against Roe quite shaky?

* * * * * * * * * *

At the end of the Supreme Court’s current Term, the First Amendment will continue to safeguard a billionaire’s right to make unlimited political contributions. That right will include the power to buy influence and become an oligarch as long as government benefits flow in response to the contributions without any advance arrangement or understanding. But the Fourteenth Amendment will no longer afford a rape victim the right to decide whether to bear her abuser’s child. That decision will have been restored to the people’s elected representatives.

Your colleague Justice Breyer recently wrote that your Court’s decisions, “despite all appearances,” are “truly apolitical in character.” Do you agree? Should we believe that your constitutional rulings have proceeded from your efforts as professional lawyers and amateur historians to channel the intentions or originally understood meaning of Framers who spoke long ago of “the freedom of speech” and “due process of law”? Are we to believe that your own preferences played no part? And are we to believe that Justices appointed by Republican presidents differ from those appointed by Democratic presidents because the Justices appointed by Republicans are less “activist” and more committed to following the law?

Do you believe any of those myths yourselves?

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