Since Justice Samuel Alito’s draft opinion in Dobbs was leaked to Politico, constitutional scholars and pundits have expressed the fear that this decision will be used strike down Supreme Court cases upholding same-sex marriage, contraception use by married couples and single persons, and sex between same-sex individuals. Few realize, however, that Justice Alito’s opinion represents a radical departure from existing precedent that threatens to overturn decisions over the last seventy years under the First, Fourth, Fifth, Sixth Amendments as well as the Due Process Clause of the 14th Amendment.
To understand why this is so, it is important review the text of the opinion. Although it is 67 pages long, it is a very quick read; Justice Alito’s style is simple, his reasoning straightforward, and he describes clearly and in detail the obstacles to declaring abortion regulations unconstitutional.
Fundamentally, Justice Alito’s opinion is a radical document. He doesn’t merely justify overruling Roe based on a finding that the Court’s reasoning was flawed, he limits the Constitution’s guarantee of liberties to those rights expressly set out in the Constitution or based on practices or understandings long abandoned.
He does this by first observing that the Constitution makes no reference to a right to an abortion. He acknowledges that rights not mentioned in the Constitution have been recognized under the Due Process Clause of the 14th Amendment, but states that those rights were “deeply rooted in the Nation’s history and tradition” and implicit in the concept of “ordered liberty,” quoting Washington v. Glucksberg, Draft, p. 5. Anticipating objections that his ruling would threaten other rights previously recognized by the Court, Justice Alito asserts that the right to an abortion is different from other rights such as:
- the right to marry a person of a different race;
- the right to obtain contraceptives;
- the right to reside with relatives;
- the right to make decisions about the education of one’s children;
- the right not to be sterilized without consent;
- the right in certain circumstances not to undergo involuntary surgery, forced administration of drugs, or other substantially similar procedures;
- the right to engage in private, consensual sexual acts; and
- the right to marry a person of the same sex.
Justice Alito claims that what distinguishes abortion from these rights is that “abortion is inherently different,” because it involves the life of an “unborn human being.” (cleaned up). “None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion.” Draft, p. 32.
This assertion is simply wrong; the interests implicated by these rights also involve moral questions; arguably to those impacted as important as the life of an “unborn human being.” Justice Alito’s dismissal of these interests’ moral importance demonstrates that he suffers from the same bias he accuses others of:
In interpreting what is meant by the Fourteenth Amendment’s reference to “liberty,” we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy.
Draft, p. 13.
So how is the Court to determine what rights are guaranteed by the Constitution when they are not expressly stated? Justice Alito says by looking to history. “[T]he Court has long asked whether the right is “deeply rooted in [our] history and tradition” and whether and whether it is essential to our Nation’s ‘scheme of ordered Liberty.’” Draft p. 11.
What Justice Alito is really saying here is that those rights that are essential to our nation’s scheme of ordered liberty are limited to those that are deeply rooted in our history and tradition. Many of the rights guaranteed by the first eight amendments are, however, not deeply rooted in our history and tradition. In fact, just the opposite; the Court’s recognition of rights under the Bill of Rights has often, over the last 70 years, overturned traditions that came before.
Consider how Justice Alito’s reasoning threatens decisions under the First Amendment. The First Amendment states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The meaning of the Establishment Clause and the Free Exercise Clause has vexed the Court throughout the 20th century. On its face, the First Amendment only prohibits the government from establishing a national religion, or prohibiting persons from following a religion of their choosing. The Amendment says nothing about prayer in school, the tax-exempt status of religious institutions, state financial assistance to religious schools, or government-sponsored religious displays.
The Fourth Amendment requires that searches be reasonable and that search warrants be based upon probable cause and issued by a neutral and detached magistrate. But the rules precluding the use of evidence obtained in violation of these provisions were created out of whole cloth by the Court. Prior to 1914, there was no deeply rooted tradition preventing such evidence from being used against an accused.
The Fifth Amendment prevents a person from being compelled to be a witness against themselves. This was intended to protect an accused from being required testify in a criminal proceeding. But the Amendment says nothing about providing Miranda warnings to a suspect being questioned by the police. That rule was completely made up by the Court.
The Sixth Amendment did not require states to provide counsel to indigent defendants until 1963. Before then, the deeply rooted tradition was that the accused had the right to be represented by a lawyer in court, but if the accused couldn’t afford a lawyer, they had to represent themselves. Not until 1984 was it clearly established that an accused is entitled to effective assistance of counsel.
What about freedom of association? Nowhere in the Constitution are these words used. You have the right to speak your mind, and assemble with others. In this instance, however, there is no doubt that freedom of association is implicit in these rights to free speech and assembly which are “deeply rooted in the Nation’s history and tradition” and implicit in the concept of “ordered liberty.” But does that mean that a state cannot compel an organization to disclose a list of its members or the identities of all those who have supported it through their donations?
What sorts of rights are absolutely protected as rooted in our history and tradition? Justice Alito cites to three cases. One authored by a liberal Justice and two authored by conservative Justices. In the first case, Timbs v. Indiana, Justice Ruth Bader Ginsburg was able to trace the origin of the Eighth Amendment’s prohibition of excessive fines all the way to the Magna Carta and stated that it was “fundamental to our scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition.” In McDonald v. City of Chicago, Justice Alito traced the right to bear arms to the debates on the Constitution, state constitutions in effect at the time of the Constitution’s enactment, and contemporary federal statutes. Draft p. 12. In Glucksburg, Chief Justice William Rehnquist found that a right to assisted suicide would run contrary to 700 years of Anglo-American common law tradition. Draft p. 13.
Moreover, Justice Alto’s argument represents a dangerous extension of the doctrine of original intent frequently relied upon by conservative Justices to determine the meaning of an ambiguous constitutional provision. Under the doctrine of original intent, judges attempt to understand a constitutional provision by considering what it meant at the time it was originally drafted. Judge Alito’s analysis goes beyond this. He wants the Court to freeze the meaning of the Bill of Rights and the 14th Amendment to deeply rooted traditions that may be an anathema to Americans today.
If rights protected by the Constitution are only those that are rooted in our nation’s history and tradition, many of the rights we take for granted today are in jeopardy. But what about the principle of starie decisis? Won’t that principle prevent the Court from overruling civil liberties recognized by the Court over the past 70 years. Unfortunately, as interpreted by Justice Alito, the answer is no. The doctrine of stare decisis holds that courts should ordinarily not disturb decisions previously reached by the same court. Justice Alito discusses this doctrine, and the reasons for it:
Stare decisis plays an important role in our case law, and we have explained that it serves many valuable ends. It protects the interest of those who have taken action in reliance on a past decision. See Casey, 505 U.S., at 856 (plurality opinion); see also Payne v. Tennessee, 501 U.S. 808, 828 (1991). It “reduces incentives for challenging settled precedents, saving parties and courts the expense of endless relitigation.” Kimble v. Marvel Entertainment, LLC, 576 U.S. 446, 455 (2016). It fosters “evenhanded” decision making by requiring that like cases be decided in a like manner. Payne v. Tennessee, 501 U.S. 808, 827 (1991). It “contributes to the actual and perceived integrity of the judicial process.” Ibid. And it restrains judicial hubris and reminds us to respect the judgment of those who grappled with important questions in the past. “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.” N. Gorsuch, A Republic If You Can Keep It 217 (2019).
But none of these reasons matter if the case involves a constitutional right that was decided wrongly. Draft, p. 35-36. While some rights recognized in the last 70 years might survive scrutiny by the Court, stare decisis would not prevent the Court from considering whether they were wrongly decided.
Even if you support a decision returning the legality of abortions to the states, you should not support the reasoning Justice Alito used in his draft opinion. Maybe Chief Justice Roberts will persuade a majority to achieve the same end in a different way. If not, we have much to fear for our civil liberties.