Justice Samuel Alito’s draft opinion for the Court in Dobbs v. Jackson Women’s Health Organization, leaked to the press this week, is magnificent. The opinion, which would overrule Roe v. Wade and Planned Parenthood v. Casey, is brilliant — a masterpiece of judicial craft, clarity of analysis, precision of expression, and fidelity to the Constitution. If it or something very much like it emerges as the finished product, this will be the Supreme Court’s finest moment since Brown v. Board of Education overruled Plessy v. Ferguson in May of 1954, 68 years ago next week.
The Dobbs draft is a triumph — a triumph for the Constitution, for the Court, for judicial courage, for principle, and for the rule of law. It does not dodge but instead confronts directly, the essential issue: the constitutional indefensibility of Roe’s creation of a right to abortion. That question is unavoidably presented by the Mississippi law at issue in Dobbs. Mississippi bans abortions that Roe’s framework says must be permitted. To uphold the state’s law is necessarily to overrule Roe and Casey. At the same time, the Dobbs draft decides no more than is necessary: it explicitly distinguishes the constitutional question of abortion from any other; it leaves undisturbed, and preserved, any other holding of the Court; it leaves open broader questions not implicated by the challenge to Mississippi’s law, such as whether the Constitution affirmatively protects the right to life of the unborn as a matter of the “equal protection” of the laws; it does nothing more than return the issue of abortion to the people, acting through elected representatives in Congress and state legislatures.
Justice Alito’s draft brilliantly unites — bridges — the slight variations among the views of the conservative and moderate justices likely forming the majority. It provides a rationale that all can agree on. (There will be three dissenters, of course — the activist-liberal justices who favor abortion rights as a matter of policy and who would insist on reading that policy preference into the Constitution, as Roe did.) Alito’s opinion systematically destroys the “substantive due process” argument for a constitutional right to abortion — the argument on which Roe had relied. To be sure, the entire oxymoronic doctrine (“substantive process”?!) is beyond dubious as a matter of first principle. (Look for one or more possible concurring opinions to make that point.) But even taken on its own questionable terms, the notion that deeply embedded legal “tradition” or “history” has always supported a right to abortion as an essential aspect of liberty is simply insupportable. Alito’s draft is absolutely devastating on this score. Roe is indefensible on any legal theory (even an implausible one). The Alito opinion is direct and forthright on this point. It makes clear that Roe’s result (and Casey’s, following it) is not merely wrong but lies wholly outside the range of plausibly legitimate constitutional interpretation.
This is an important point. It has implications for the question of “stare decisis” — the judicial policy of (sometimes) adhering to precedent where a precedent is dubious but subject to reasonable disagreement. (The draft discusses precedent just a bit later.) Roe is more than arguably wrong. It is categorically wrong — egregiously, extremely, atrociously wrong. Nothing in the Constitution’s text, structural logic, or historical evidence of intent or meaning supports a right to abortion. Roe simply made up a right and read it into constitutional language that in no way supports such a conclusion. (The Alito draft slices an alternative argument for abortion, predicated on “equal protection,” to ribbons in a few swift, deft strokes.)
Planned Parenthood v. Casey in 1992 reaffirmed Roe (in its essence and in the main) largely on the basis of the doctrine of stare decisis. The Court even then was unprepared to say — indeed, appeared to deny — that Roe was correct as a matter of straightforward interpretation of the Constitution. Should the Supreme Court deliberately adhere to a flatly and egregiously wrong constitutional decision just because it decided an issue the way it did in the past? The principal legal argument for abortion as a constitutional right has become that the Court in Roe once said it was, whether defensibly or not, and that the Court should stick to Roe right or wrong as a matter of stare decisis, not constitutional merit.
The problematic notion of stare decisis in constitutional law has long vexed the justices. Justice Alito’s draft handles the issue with extraordinary care and finesse, once again uniting the somewhat different approaches of different justices. His analysis is persuasive: The Court has not hesitated to overrule prior decisions it has come to conclude were wrong and has done so on a great many occasions. Indeed, some of the Court’s most important, magnificent landmark decisions have involved the explicit overruling of long-standing but deeply flawed precedent. (Brown v. Board of Education, repudiating Plessy’s awful and racist invention of “separate but equal” constitutional doctrine, is only one of many memorable examples.) Whatever the proper role of precedent, Alito writes, it is surely relevant — and grounds for overruling such precedent — how deeply and indefensibly wrong the prior decision was; how weak its legal analysis was; how unworkable the constitutional rule it created is; how seriously it disturbs the fabric of the law in other respects; and how weak the argument is for finding that the decision itself has generated legitimate and justifiable reliance beyond the mere expectation or desire that a wrong rule remain the wrong rule. (That last factor was argued as a basis for adhering to Plessy, too.)
In patient, careful discussion, Justice Alito’s draft demonstrates how all of these factors point decisively toward overruling Roe and Casey. In this respect also, as with its discussion of the merits, the Dobbs draft is a masterpiece.
The Dobbs draft would return the issue of abortion to the democratic process — to state legislatures and in certain respects to Congress — and would go no further. In this respect, it is amusing and ironic that some abortion-rights reactors (“commentators” would probably go too far, as their statements do not reflect any reading or understanding of the draft opinion) have condemned the draft for having been issued by “unelected” and “undemocratic” judges, imposing their “tyranny” on the nation. The New York Times quoted a first-year law student to this effect. (It’s exam time at law schools right now; I hope this student does a little better than this on the final.) The irony is that the Dobbs draft would return the question of abortion to elected branches and the democratic process and remove the issue from courts — it would end undemocratic usurpation of authority by the judiciary.
My reading of the draft is that, in returning the issue to democracy, it would not foreclose the further constitutional legal argument that certain state laws permitting abortion might deny the “equal protection of the laws” to a category of human “person” arguably embraced by the Constitution. Some conservative legal commentators have expressed concerns (or gripes) with the draft on this score, but I think without good justification. The opinion goes as far as necessary to decide the case and no further; it does not deny, but (quite the reverse) seems to affirm, the humanity of the living human embryo or fetus, in the course of its discussion of the precise legal issues it treats; it would provide an excellent grounding for the next stage of the debate, in legislatures and in courts. To my mind, it would strongly support a power of Congress to exercise its power to “enforce” the 14th Amendment’s terms (under Section Five of that amendment) in favor of assuring equal protection of the right to life of unborn, living human beings gestating in their mothers’ wombs. All of this is to the good. At the same time, the opinion — significantly — would not support a congressional power to enact a Roe equivalent by statute on the premise that this would be enforcing “substantive due process” rights to abortion under that amendment. The Dobbs draft, as noted, makes clear that such a reading of the Constitution lies outside the bounds of fair and plausible construction of the document.
And as noted at the outset, by not rejecting “substantive due process” entirely, the draft preserves some other popular decisions under the doctrine. The draft posts a clear “Dobbs Does Not Disturb” sign by any other decisions. It pointedly distinguishes the situation of abortion — in part precisely because abortion, uniquely, involves the destruction of embryonic human life. (Contraception, same-sex marriage, sexual conduct, and family arrangements generally, the subject of other decisions by the Court, present no such issue.)
All of this assumes of course that the draft opinion (probably with the addition of footnotes or passages responding to arguments raised in the expected dissents) becomes, in slightly modified form, the eventual holding of the Court. I believe it will (though I am always hesitant to offer firm predictions). Expressions of left-wing and pro-choice outrage at the draft — why on earth are they acting so surprised? This was long in coming and does not seem at all unexpected — will not cow the Court. The Dobbs draft is an act of constitutional principle, of courage and conviction, and of restoration of democracy. To repeat: This reasons to be the Roberts Court’s finest hour and the most important act of principled judicial interpretation of the Constitution in more than half a century. Criticism and shrieking, by some, should not lead to abandonment of constitutional principle. (Some forget that Brown was not popular in all quarters at the time it was decided. It triggered massive resistance, for decades, by deeply entrenched opposing interests. One can reasonably expect the same with Dobbs. One can reasonably hope for the same firmness in adherence to principle as characterized the Court in the post-Brown years.)
What about the leaker or leakers? The simplest explanation is probably the most likely: a young hothead, on the left, outraged, incensed, desperate, and heedless, leaked the opinion to generate what he or she believed would be similar expressions of outrage by others. (It might be an old hothead, of course.) Take it from a former young hothead — and now a much older hothead! Emotion and anger are almost certainly what drove the leaker to leak. Implausible conspiracy theories — a double-reverse, triple-bank-shot, statue-of-liberty-play, false-flag conservative scheme to forestall feared defections from the draft’s majority! — strike me as far-fetched.
The effort here was to derail a decision on the cusp of its announcement, by bringing political pressure to bear on those in the expected majority. It is likely to be a futile effort. We will know for certain within a few weeks. Until then, the Dobbs draft deserves three cheers — even if the cheering must remain tentative. The decision, if it turns out to resemble the draft, will join the pantheon of greatest Supreme Court decisions of all time.