The Leaked Alito Draft Decision

Our Constitution, written by men who owed allegiance to no King, Kaiser, or Emperor, was a marvel in 1781.

But it was written by men. White men. Prosperous white men, mostly Christian, many slaveholders. They did a great service – for white men.

Our history is various jagged lines moving toward equality for all: blacks, tribes, women, Asians, Jews, LGBTQ+, and others the Founders never considered.

The leaked draft decision reviving states’ control over women’s bodies, if issued, will be a major step backward. It could foreshadow more backward leaps, returning many to second-class citizenship or worse.

Symbolic of the Court’s blind arrogance is Alito’s citation of 17^th Century English jurist Sir Matthew Hale, who believed women were subservient beings God had fashioned from Adam’s rib. Married women were property. There was no such thing as marital rape, Hale wrote: a husband owned a wife’s body, and could do as he liked with it. Including beating her.

Alito gleefully asserts that the Constitution never mentions abortion. It never mentions women. It wasn’t written for them. Or by them.

Denying abortions isn’t about “life,” or the backward states would let women abort health-impairing pregnancies, and wouldn’t be denying women a safe procedure, relegating them to backstreets and basements. This isn’t about kids: Justice Barrett at least walks the walk; but most anti-choicers scream about protecting fetuses yet don’t adopt unwanted babies. Conservatives say folks should sink or swim without much government help, and that businesses’ profits shouldn’t be diminished by requirements designed to preserve kids’ health and environment.

Alito and his ilk would force women, no matter the circumstances, to give birth and take full responsibility for “their” children, but vote against measures to help families give the resulting kids a really nurturing childhood. While forcing women to bring unwanted pregnancies to term, Mississippi threatens also to outlaw contraceptives!

The draft mocks stare decisis, a major prop of our Anglo-American judicial system. A final decision along these lines would dissipate public respect for the Court. Alito says “originalism;” but pre-quickening abortion was legal in all states in 1789, as under British common law. Overturning Roe would be without precedential authority or popular support.

Our Constitution and Bill of Rights promised personal freedom. Obviously the Constitution couldn’t name every human problem or eventuality; but it stated clearly that we should live free from unnecessary interference. “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. Powers not specifically delegated to the United States “are reserved to the States, respectively, or to the people.” Whom we love and/or sleep with, whether or not we eat healthy food or get exercise, and (within broad limits) what we do and say in our own homes are in that latter category. So should be our personal health decisions, including pregnancy. Nor did any of the Founders ever suggest otherwise.

Justice Alito, where in the f*ing constitution does it say that the states can legislate such personal matters?

Steve Pearce, how can y’all oppose cities requiring their employees to be vaccinated in a pandemic, yet shout from the rooftops that government can force health choices on women, whose condition isn’t infectious at all?

Peter Goodman, what right do you have to pontificate, when your gender and age guarantee you won’t face this particular health choice?

With all due respect to the Court, women deserve much, much better.

                                – 30 –

 

[The above column appeared this morning, Sunday, 15 May, 2022, in the Las Cruces Sun-News, as well as on the newspaper's website and KRWG's website. A related radio commentary will air during the week on KRWG (90.7 FM) and KTAL-LP. (101.5 FM – http://www.lccommunityradio.org/), and will presently be available on demand on KRWG’s site.]

[One should recall that the leaked decision is a draft. Often when justices take their initial vote on how they are all leaning on a case, the majority votes for a certain result but on varied grounds. The Chief Justice then assigns someone in the majority to write the opinion. A first draft may be the writer’s particular exposition of the reasons, and others in the majority may object to certain language. As they can decide to concur in the result but write their own concurring opinion, possibly without joining in the majority opinion, compromises often occur. (A “majority” opinion in which no one joined, accompanied by four concurrences agreeing on the result but not the rationale, and four dissents, would be problematic not only for Alito’s ego but for other courts trying to decide related but somewhat different cases, since they could be understandably uncertain about how the Supreme Court would rule.) For example, in Brown v. Board of Education (1953), Chief Justice Earl Warren, knowing it flatly overruled the pro-segregation decision in Plessy v. Ferguson (1897), worked hard to adjust the language so that the vote was unanimous, leaving no ground for segregationist state officials to doubt the decision.]

A key paragraph of the Alito’s decision is:

He goes on to write that abortion doesn’t fall within that category. The same argument could apply to integration, despite post-Civil War Constitutional Amendments; until 1965, despite those, many states still had laws forbidding marriage between a white person and a Black person. Certainly integrated schools, let alone marriages, were not “deeply rooted in our country’s history and traditions.”

Even more certainly, conduct that does not conform to the narrow Christian sexual mores is not deeply rooted in our country’s traditions. Thus Alito’s basic rationale could apply to a variety of other Supreme Court decisions over the past century that have recognized rights implicit in our Constitution. He does attempt to distinguish those, by noting that abortion differs in that in also implicates a possible human life; but it would be hard to trust that this court (including recent employees who lied to Republican senators about their view of Roe v Wade as “settled law”) to hold to that distinction if they decided states should still be able to arrest gay folks, or fire gay state employees for being different.]

[One other point.  Someone leaked this.  That's contrary to the U.S. Supreme Court's history and traditions, and either illegal (if someone used illegal means to acquire it) or contrary to the leaker's contract (if a Court employee leaked it).  If an employee leaked this, it's a breach of trust for which someone normally should be fired.  Leaking would not, however, be a crime.  The leaker should be fired, but calls for a criminal investigation are Republican politicians' efforts to control their political damage by distracting from the content of the leak.   

It doesn't matter "which side" the leaker is on, or what his or her intentions were.  S/he should be fired.  My first assumption was that the leaker was opposed to the decision and wanted it our there to galvanize progressive voters.  I'm now hearing that the better-informed speculation is that it was a conservative Alito ally who wanted to make it tougher for a justice to change his or her vote, as the Chief Justice undoubtedly wishes someone would.  Either possibility is plausible.  It doesn't matter.  The leaker should be fired, but to those of us not working for the court the content should be far more important than how it reached us.]