Alito’s Opinion Is Brilliant and Shrewd

By Michael Brendan Dougherty

Friday, May 06, 2022

 

We should hesitate to treat the leaked Supreme Court opinion, authored by Justice Thomas Alito, as likely to resemble the final opinion of the Court. It is over three months old. The opinion’s length, an exhaustive 98 pages, its direct language: “We hold that Roe and Casey must be overruled,” and its long recounting of the historic opinions of previous courts on the matter of abortion — which amount to a kind of shadow opinion on abortion’s essential barbarity — suggest to me that Alito was tasked with writing an “everything and the kitchen sink” draft that would be edited and reduced by colleagues who are not as resolute in these convictions as Alito.

 

The fact of the leaked draft is a real institutional danger to the functioning of the Supreme Court itself, which is regrettable. But, even if this opinion is substantially cut down, diminished, or disfigured by his colleagues, I’m glad that we have a record of its existence and can read it for generations hence.

 

What Alito has penned here is the crowning achievement of the conservative legal movement. It is the statement that hundreds of millions of people, many now dead, have coordinated their political efforts to make possible. First, it makes the argument that Roe itself was wrongly decided, and it relishes quoting liberal and progressive scholars who admit the makey-up nature of the holding in Roe, one that had to be substantially demolished and rebuilt again on the makey-up Casey sequel. Alito’s opinion, with heavy amounts of citation, undermines entirely the historical arguments made by the pro-Roe lawyers in oral arguments, which try to fit abortion into the 14th Amendment’s understanding of due process. “Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. Zero. None.”

 

Alito’s opinion is the vindication of the predictions made by Justice Antonin Scalia’s fiery dissent in the Casey case in 1992, that the Court had fooled itself with its opinion of its own magisterial authority and ability to settle controversies definitively. It is the definitive argument that by arrogating to itself the decision to interrupt the process of legislation in the states, the Supreme Court in 1973 not only overstepped its authority, but set the American state and politics on a course of dysfunction, one that could not be settled by reaffirmation 19 years later in Casey.

 

Arguably, the decision even has some impishness in it. Alito writes “Roe was egregiously wrong from the start,” a line that seems to mockingly parody progressive legal scholar Mark Tushnet’s 2016 essay calling for left-wing justices to launch a far more activist “jurisprudence of ‘wrong the day it was decided.’” Alito also mocks the language of Justice Anthony Kennedy — the infamous “sweet mystery of life” passage, which was a relativistic shrug in the face of a legal, moral, and political enormity.

 

The drafted opinion demolishes the theory that wrong decisions become more respectable and hallowed merely by the passage of time, not only by listing egregious Supreme Court decisions that nearly everyone now agrees had to be overturned, but by showing how much disrespect Casey paid to Roe.

 

Along the way, the opinion cites how far removed the American jurisprudence and practice on abortion is from that of the rest of the world. America is a bizarrely anarchic outlier by these standards. And further along, Alito drops in the factual details about fetal development and the procedures of abortion that inspired and shaped the law at issue in Mississippi.

 

These facts, recited in such an opinion, do not of themselves move America’s abortion settlement to the pro-life side. But they are more than an argument that abortion can be regulated or in many cases criminalized by states, as it has been in the past. No, taken together, and stated so plainly, the paragraphs in this opinion are a rhetorical case that states ought to do so. “The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.”

 

That is to say, Alito’s drafted opinion manages to do what so few essays and treatises taking up this subject can do: be truthful and shrewd. The publication of this opinion was a sin. But O felix culpa, this opinion should be anthologized with all the greatest writing on the topic of abortion in the United States. It belongs alongside Richard Selzer’s haunting essays, Joe Sobran’s collection Single Issues. Alito’s opinion joins a cloud of witnesses, convicting our age.