Samuel Alito Draft Opinion Striking Down Roe v. Wade Leaked to Politico

The leak of a draft opinion from the Supreme Court to Politico would have been an earthquake beneath the surface civility of Washington in any case. But to have the first such leak be Justice Samuel Alito’s draft opinion demolishing Roe v. Wade was beyond even that. This was not an earthquake. It was Krakatoa. The reputation of the Supreme Court lies in ruins at the bottom of the sea. The lives of millions of American women have been immiserated. The basic topography of the American republic has been rearranged. Again.

You want to see the part of the leaked draft opinion that is the most vivid demonstration of the majority’s bad faith? It’s a reassurance that I wouldn’t trust as far as I could throw Antonin Scalia, and that’s after digging him up. In this, it’s pure Alito. It’s this passage right here.

“We emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

They’re coming for Griswold, and for Obergefell, and for Lawrence, and for Loving, for all I know. I have read too many conservative essays concerning the illegitimacy of a constitutional right to privacy, all of them emerging from the same thickly manured intellectual garden that produced at least four of the justices, including all four of the justices who were appointed by presidents who were elected with fewer popular votes than their opponents. None of the four give a rip for the concept of unenumerated rights. (Justice Amy Coney Barrett wouldn’t even defend Griswold as legitimate precedent at her confirmation hearing.) And Alito’s fig leaf is shredded by its own self-contradiction. If his logic in this draft opinion regarding Roe is sound, then none of the decisions based on a right to privacy are legitimate either.

What Alito’s reassurance does remind me of is the claim within the decision in Bush v. Gore that it was “limited to the present circumstances.” As ProPublica pointed out two years ago, Bush v. Gore has been cited as precedent in nearly 200 cases. Even if I had a scintilla of trust in Alito’s reassurance, which only a fool would countenance, he wouldn’t be able to follow through on it if a state, say, wanted to outlaw gay marriage, or restrict the sale of contraception. Not without sounding like the worst kind of political hack. Which he already is anyway.

Remarkably, this blockbuster came at the end of a day that began with a story in the Washington Post about how the anti-choice forces in Congress were already planning to propose a nationwide ban on abortion should the Republicans carry the midterm elections this fall. That’s for any of you who believe that Alito and the apparent majority are sincere about letting the states make up their own minds.

Activists say their confidence stems from progress on two fronts: At the Supreme Court, a conservative majority appears ready to weaken or overturn the Roe v. Wade decision that has protected abortion rights for nearly 50 years. And activists argue that in Texas, Republicans have paid no apparent political price for banning abortion after cardiac activity is detected, around six weeks of pregnancy.

While a number of states have recently approved laws to ban abortion after 15 weeks of pregnancy — the limit established in the Mississippi legislation at the heart of the case pending before the high court — some activists and Republican lawmakers now say those laws are not ambitious enough for the next phase of the antiabortion movement. Instead, they now see the six-week limit — which they call “heartbeat” legislation — as the preferred strategy because it would prevent far more abortions.

Meanwhile, as I said, I have immense confidence that the leak is legitimate. The reason I have such confidence is that the text is pure Alito. The tone is smug and condescending and nobody does smug and condescending better than Alito does. He contemptuously hand-waves away the political and social consequences of what he’s doing—which is to say, the human consequences of his decision.

We cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work. We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision.

And he has a lip-curling hostility to the authors of Roe and Casey, the decisions that his opinion overturns. In this, his opinion reads like a comment thread on some ridiculous wingnut website.

As has become increasingly apparent in the intervening years, Casey did not achieve that goal [of finally settling the question] Americans continue to hold passionate and widely divergent views on abortion, and state legislators have acted accordingly.

Alito, of course, elides the fact that these laws are being passed through gerrymandered legislatures and signed by Republican governors, and that their position is a minority one all over the country. But Alito has never cared about the little people affected by his legal genius. Women are going to die. Politics is going to get immeasurably uglier. The reputation of the Supreme Court is going deeper into the dumpster. But Justice Samuel Alito, the sole occupant of his own universe, is the smartest guy in the room, so that’s all that matters.

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