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Just below the surface of the leaked draft Supreme Court abortion decision, much else was happening.
The decision would not only be a victory for anti-abortion activists and many Republicans, but it would take the court well beyond the abortion issue.
Justice Samuel Alito took advantage of his drafting assignment to adopt conservative ideology on originalism and state powers plus reversing what some thought was “settled law.”
Alito wrote that states did not allow abortion when the Fourteenth Amendment was ratified in 1868, so the court cannot rule that the amendment protects the right to abortion. In short, each part of the Constitution should be interpreted according to the conditions prevailing at the time it was adopted.
That’s constitutional originalism. That logic could raise the question of whether the Second Amendment right to own a gun, adopted in 1791, should be limited to protecting only muzzle-loader ownership.
If the only rights the federal government can protect are limited to those expressly listed in the Constitution and then only as they applied when the document was adopted, the U.S. would plunge headlong back to the late 1700s.
There’s no abortion right in the Constitution, Alito says. But it recognizes individual rights beyond those in the Bill of Rights. While states have full power to regulate them, they have gradually ceded many of their powers to the federal government. The draft opinion reflects the GOP intention to restore state authority.
Alito correctly shows that the court moves into lawmaking when Congress is unable to do so. He accepts that once the court enacted Roe v. Wade, it could repeal the law it created because the filibuster had blocked any congressional action.
At Senate confirmation hearings, prospective justices usually promise they will limit themselves to applying the law as it is written. If that were possible, we would not need judges. In fact, justices rely on their interpretation of what laws mean when applied to specific cases. Different justices have different interpretations, and when a majority agrees, the court can make law.
One part of Alito’s interpretation is consistent with the court’s historic view. The court follows a rule prescribing respect for its previous decisions, providing the people reliable consistency. But there is no “settled law” that cannot be reversed. Court rulings on long-standing precedents, like those on segregation or labor rights, have been reversed
So court nominee Brett Kavanaugh could reassure Sen. Susan Collins that he respected settled law, just as the court does. Either Collins chose to ignore legal history or followed bad advice in accepting his assurance that implied that he would not vote to overrule Roe v. Wade. Kavanaugh, an experienced lawyer and judge, must have known just what he was promising.
The Supreme Court process for writing a decision has been the stage for this current controversy. It helps explain both Alito’s strident tone and his opportunity to make a far-reaching decision.
The justices take a preliminary vote on each case. The senior judge in the majority selects the drafter of the court’s opinion. In this case, Justice Clarence Thomas made the choice, and could have picked himself. But he is facing complaints about his partisanship on the court, and maybe that’s why he chose Alito, the next most senior member of the majority.
Alito, perhaps the most conservative justice, produced an aggressive first draft on which other members of the majority can suggest revisions. Because they are not yet bound to their vote, their influence counts. The draft also allows dissenters to begin their own drafts.
Alito’s draft decision leaked, and nobody recalls the last time that happened. There are at least three possible reasons for the leak, made by either a justice’s aide or a court staffer or, most unlikely, a justice.
A dissenter might have thought the draft would raise an outcry leading the majority to back off. An Alito ally might have wanted to lock in the majority, so justices could not retreat to a compromise that Chief Justice John Roberts seemed to favor. Or a draft supporter might have thought the public reaction would induce Alito to moderate his language and legislative ambition.
In exploiting this opportunity, Alito probably goes well beyond where he must to end a federal abortion right. He could push the court to reveal just how far to the right it has moved.
Alito’s draft is a full-scale proclamation that the conservatives control the court and potentially the federal government. Undoubtedly, Roberts could see it as undermining his efforts to restore waning public belief that the court is independent and nonpartisan.
The confrontational and strident draft proclaims a federal retreat in favor of state jurisdiction and extreme originalism, while implying that more major precedents could fall. This decision could be historically significant well beyond the abortion issue.
