Dobbs Double-Cross: How Justice Alito Misused Pro-Choice Scholars’ Work

Posted in: Constitutional Law

Justice Samuel Alito’s majority opinion in Dobbs v. Jackson Women’s Health Org. is chiefly important for its impact on the lives of American women. Accordingly and appropriately, the national conversation has largely moved past the language of the ruling to focus on its wider implications and the next steps by activists on both sides of the abortion issue. For those of us who teach and write about constitutional law, however, there is reason to linger over the opinion itself. In today’s column, I criticize its reliance on the views of liberal scholars.

In a single paragraph, Justice Alito cites John Hart Ely, Archibald Cox, Laurence Tribe, Mark Tushnet, Philip Bobbitt, and Akhil Amar for the proposition that the reasoning of Roe v. Wade “was exceedingly weak.” Elsewhere, Justice Alito invokes a well-known published lecture by Justice Ruth Bader Ginsburg, in which she criticized both the scope and rationale of Roe.

Relying on the writings of liberals has rhetorical force. Justice Alito appears to be saying that even Roe’s supporters recognize it was a mistake in need of correction. However, the inference is flawed—as a general matter and especially with respect to the invocation of Justice Ginsburg and Professor Ely.

The Missing Element in the Argument

Justice Alito’s argument would be effective if the scholars he cited were uniformly pro-choice as a matter of policy but believed that Roe was wrongly decided. Then he would be saying that even scholars who favor an abortion right see no way to locate it in the Constitution. And indeed, that is a fair characterization of some of the scholars Justice Alito cites. For example, Amar approved of the Dobbs opinion even before it was officially released. Likewise, Cox was highly critical of the reasoning and result in Roe, as were Tushnet and Ely.

But Tushnet is a founder of “critical legal studies” who doubts that the reasoning in just about any judicial opinion explains or justifies the outcome. Meanwhile, Ely thought Roe was wrong as an initial matter, but he also thought that Planned Parenthood v. Casey, the 1992 ruling that reaffirmed the core of Roe, was rightly decided, making Justice Alito’s reliance on Ely’s views as the basis for overruling Roe and Casey highly problematic.

Justice Alito’s other citations are even more dubious. Although Tribe, Bobbitt, and Justice Ginsburg all criticized the reasoning of Roe, they also thought the result was justified, and certainly none of them believed that Roe or Casey should be overruled. Justice Alito’s reliance on scholars who criticized Roe but believed it should remain the law was at best incomplete, as a hypothetical example illustrates.

Suppose Sam and Elena are trying to decide whether to go to Poppie’s or Alfredo’s Café for lunch. Sam prefers Poppie’s, while Elena prefers Alfredo’s. Elena admits that the service at Alfredo’s tends to be slow but nonetheless would prefer to go there because Poppie’s has recently been cited for health code violations. Sam cannot win the argument by pointing to Elena’s admission that Alfredo’s has slow service without also overcoming her concern about the health code violations at Poppie’s.

Neither can Justice Alito persuasively argue for overruling Roe by invoking liberals’ criticisms of the way the opinion was written without also addressing their reasons why Roe’s result was nonetheless correct or, if arguably incorrect, does not warrant overruling. Yet nowhere does Justice Alito even discuss what the liberal scholars say in favor of retaining Roe.

Dismissing Equal Protection

To be sure, Justice Alito does address some of the arguments that the liberals he invokes made for retaining Roe, but his analysis of those points is badly incomplete.

In her March 1993 Madison Lecture, Justice Ginsburg made essentially three points about Roe: (1) the outcome was correct; (2) the Court and country might have been better served if, instead of setting forth a detailed set of doctrinal rules involving viability, trimesters, and so forth, the opinion had simply found an abortion right of uncertain scope and thus encouraged dialogue between legislators, jurists, and the people; and (3) that more modest course might have enabled all actors to appreciate that the constitutional principle of equal protection most securely grounds the abortion right. With respect to the third point, Justice Ginsburg approved of those passages in Casey that relied on notions of sex equality and not simply liberty.

Justice Alito completely ignores points (1) and (3) from Justice Ginsburg’s lecture. Even worse, Justice Alito dismisses the equality argument in a dishonest and tendentious paragraph. He begins by stating that “[n]either Roe nor Casey saw fit to invoke” equal protection. That’s plainly wrong with respect to Casey, which Justice Ginsburg—and everybody who read the lead opinion in Casey—rightly understood as resting partly on equal protection grounds.

Consider this line from Casey: “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” Or consider that the entire analysis of the one abortion provision the Court invalidated in Casey—requiring married women to notify their husbands before obtaining abortions—rested on the repudiation of archaic stereotypes about sex roles. “A State may not give to a man the kind of dominion over his wife that parents exercise over their children,” the Casey Court explained. The Casey Court did not literally shift the abortion right from the Fourteenth Amendment’s Due Process Clause to its Equal Protection Clause, but Justice Alito’s claim that the Casey Court did not “invoke” constitutional equal protection is demonstrably baloney.

So why did the Dobbs majority reject equal protection as a basis for the abortion right? The argument, Justice Alito asserts, “is squarely foreclosed by” the Court’s precedents. Yet before the Court decided Dobbs, the notion that abortion is not a constitutional right was also squarely foreclosed by the Court’s precedents. Justice Alito chooses to give priority to the precedents he likes.

What precedents are those? The leading one he cites is Geduldig v. Aiello, a 1974 decision that held that discrimination based on pregnancy is not presumptively unconstitutional sex discrimination. Laws that disadvantage pregnant women don’t discriminate based on sex, the then-all-male Supreme Court declared, because they distinguish between “pregnant women and nonpregnant persons,” and “[w]hile the first group is exclusively female, the second includes members of both sexes.” With respect to statutory antidiscrimination law, Congress overrode the Court’s approach a few years later when the Pregnancy Discrimination Act amended Title VII to make clear that proscribed discrimination on the basis of sex includes discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions.”

Numerous commentators—including Justice Ginsburg—criticized the obtuseness of Geduldig. But that aspect of Justice Ginsburg’s legacy does not fit neatly into Justice Alito’s narrative of Roe as egregious error, so he simply ignores it.

Ely’s Full View

Justice Alito selectively cites Professor Ely as well. I have already noted that the Dobbs majority completely overlooks the fact that it is a matter of public record that Ely thought the Casey Court was right to retain Roe, even though Roe was, in his view, wrongly decided as an initial matter. But even taken on its own terms, the invocation of Ely is grossly incomplete.

Justice Alito cites an article Ely wrote in the immediate aftermath of Roe. That article, unlike the majority opinion in Dobbs, recognized the stakes. “Having an unwanted child,” Ely acknowledged, “can go a long way toward ruining a woman’s life.” He nevertheless went on to criticize Roe on the ground that it repeated the error of the pre-New Deal Court of substituting the Justices’ values for those of the People without adequate warrant in the Constitution.

Justice Alito is happy to borrow Ely’s indictment of Roe as judicial activism, but he seems completely indifferent—indeed hostile—to the complementary insight that defined Ely’s career as a scholar. Ely included much of the 1973 article criticizing Roe in a chapter of his extraordinarily influential 1980 book Democracy and Distrust: A Theory of Judicial Review. That book sought to answer critics of the Warren Court who thought that its liberal rulings on race, voting rights, free speech, and criminal procedure constituted unjustifiable judicial activism.

Building on a footnote in a 1938 case in which the Court proposed that the usual deference owed legislation concerning economic regulation should not apply when “prejudice against discrete and insular minorities” systematically undercuts their ability to engage in political bargaining or when laws restrict “those political processes which can ordinarily be expected to bring about repeal of undesirable legislation,” Democracy and Distrust articulated what Ely called a “representation reinforcing” account of judicial review. That account, he thought, distinguished the Warren Court from the pre-New Deal Court. Whereas the latter’s invalidation of economic regulation simply substituted the preferences of unelected Justices for the outputs of democratically elected bodies, representation reinforcing judicial review facilitated democracy. The quintessential examples for Ely were the decisions in Baker v. Carr and Reynolds v. Sims, establishing a judicially enforceable rule of one-person-one-vote for state and congressional electoral districts. Legislators chosen by voters representing a minority of the state could not be trusted to reapportion districts in a way that would forfeit their political power. Judicial invalidation of malapportioned districts was legitimate because it corrected American democracy’s imperfections.

Contrast Ely’s view with that of Justice Alito and the conservative majority more broadly. Far from reinforcing democracy, the Roberts Court has repudiated every element of Democracy and Distrust. It gutted the Voting Rights Act. It disallowed federal court challenges to political gerrymandering. Contrary to Ely’s view, it is poised to invalidate race-based affirmative action in the pending challenges to admissions programs at Harvard and the University of North Carolina. Most ominously of all, the Court has now granted review of a case in which it could approve the independent state legislature (ISL) theory that threatens to eliminate any role for state courts in ensuring the integrity of elections. Scholars like Dean Vikram Amar have noted the numerous flaws in ISL, especially, as in the pending case, where ISL would entrench partisan gerrymandering against state courts as well as federal courts and set the stage for a future anti-democratic presidential candidate to succeed in overturning an election via the plan that just barely failed when attempted by Donald Trump in 2020.

The Dobbs majority opinion states that in overturning Roe, the Court returns the abortion issue to “the people’s elected representatives” to be decided through “the democratic process.” Such reassuring-sounding pabulum rings hollow, given how completely this reactionary Court has forsaken its role as protector of genuinely representative democracy.

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In their legal research and writing classes, first-year law students learn not to quote language that supports a position they favor if that language comes from a case whose holding undercuts that position. Justice Alito either never learned or forgot that basic lesson. By selectively invoking statements critical of Roe from the likes of Justice Ginsburg and Professor Ely, the Dobbs opinion directs readers to the larger body of their work. There readers will find, respectively, a robust defense of abortion rights as essential to sex equality and an account of how the current hyper-conservative Court’s rulings are profoundly illegitimate. Justice Alito’s opinion is, as the kids say, a self-own.

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