Photos by Marcin Wlodarc, Tingey Law Firm, and Samuel Branch on Unsplah
Whatever Justice Samuel Alito’s Constitutional arguments were in overturning Roe, his personal objection to abortion has been long known and religion-based. All judges are supposed to be able to separate their religious views from their views of the law and the Constitution. Perhaps Alito was able to do that, although I have my doubts. I’ve heard too many politicians claim that their religious beliefs “inform” their political beliefs and actions, not to mention those that say that whatever they construe as the meaning or truth to be found in the Bible comes before any laws made by man, including the Constitution. Although judges are supposed to be able to make the separation, I don’t know how often they achieve that degree of objectivity. I know that I can’t, but then I’m not a judge. But if you watch (on YouTube) or read the transcript of Alito’s address in Rome to the Religious Liberty Summit in July 2022 (and I urge you to do so), you get the sense that he was almost preening in front of his devout co-religionists. He had accomplished what his faith, what their faith demanded of him. So, my impression is that his overturning of Roe was based on a religious conviction in search of a Constitutional justification. And, of course, he found it.
Perhaps I’m being overly cynical, but if you are committed to cherry-picking your facts or references (something Alito is clearly both skillful and prone to do) in order to prove a legal argument, you can find whatever you want to find in both the Bible and the Constitution. And in history.
Am I being unfair to Alito? After all, there were more than a few liberal Constitutional scholars who thought the Roe decision was based on, at best, questionable legal reasoning. If I understand it correctly, this is largely because Roe depended on the assumption of the “inherent right to privacy” lodged in the Constitution. Of course, nowhere in the Constitution does it mention such a right. In 1965, the Supreme Court (I think for the first time) found there to be such a right in deciding Griswold v. Connecticut, which struck down a law that banned contraception for married couples. The court reasoned that the right to use contraceptives was implied by the First, Third, Fourth, Fifth, and Ninth Amendments to the Constitution. Later, courts used the Fourteenth Amendment to extend that right to other issues like abortion, same-sex relations, and personal autonomy.
In his opinion, Alito said, “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteenth Amendment.” Alito’s decision also criticized Griswold v. Connecticut, saying, in effect, that the right to privacy had no clear connection to the text and history of the Constitution.
There is much talk these days about the 14th Amendment and, in particular, its third clause and its relation to the presence of Trump on state primary ballots. However, there are five clauses to the amendment, and the reference to the due process clause is in the first clause.
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
It isn’t hard to see how the inherent right to privacy fits within the amendment unless there is no such right. This is, of course, pretty alarming since it opens the way for those who are opposed to contraception, same-sex relations and marriage, the personal autonomy and dignity of individuals (women in particular), interracial marriage (once banned in many states), abortion, and who knows what else — it opens an invitation to challenge all those decisions with an understandable hope of having them all overturned. I have no idea if any of that will happen, but I find that possibility alarming. However, speaking in terms of pure politics, the clear unpopularity of the Dobbs decision has lately led the Republican Party to consider advocating for greater access to contraception in order to counter some of the unpopularity of the Dobbs decision with otherwise Republican voters. In other words, having campaigned for the repeal of Roe for decades, Republicans would like to change the subject and escape the price of their success.
But the unpopularity of a decision is apparently of no concern to Alito and his most conservative members of the majority. The big exception is Chief Justice John Roberts, who supposedly privately argued in favor of a more gradual approach to overturning Roe but was convinced to go along with the other conservative justices. Did the premature leaking of the Dobbs decision have the effect of pressuring Roberts into abandoning his gradualist leanings? It would not surprise me, and therefore, I think it likely that the leak was from either the Alito or Clarence Thomas camp. The early assumption that the leak was from the more liberal minority never seemed plausible to me. And if you think that the internal investigation conducted by the Court really found it impossible to find the culprit, all I can say is that I have a bridge in Brooklyn that I can sell to you at a bargain price.
Despite all the talk about respecting precedent (and every person nominated to be a Supreme Court Justice is asked about it), the current majority has emphatically made known that now that they are on the Court, they have no problem overturning long-standing precedents. Further, they are not required (and should not be required) to pay any attention to what public attitudes are. I am not about to argue that they are wrong, certainly not when it comes to their rights and duties as the final arbiters of what is or is not Constitutional. Clearly, Dobbs has been an unpopular decision for most people but that doesn’t mean that the Court was incorrect in its decision. I would note that no one in the Court’s majority has ever run for public office or has never had to face voters. Unlike, say, the late Justice Sandra Day O'Connor, who once held elective office in Arizona. Her feeling was quite different than Alito’s. She felt that the Court should never be too far ahead of voters if it was to maintain a reputation of legitimacy and respect to the public. The Dobbs decision (along with several others) has severely eroded the public’s trust in the Court and its decisions.
Note: In Part Three of this series, we will return to Lessons in Chemistry and the wider meaning of the overturning of Roe and the Ohio vote.