NPI's Cascadia Advocate

Offering commentary and analysis from Washington, Oregon, and Idaho, The Cascadia Advocate is the Northwest Progressive Institute's uplifting perspective on world, national, and local politics.

Wednesday, June 29th, 2022

The dishonesty of the Dobbs majority

Edi­tor’s Note: We are delight­ed to wel­come our friend Cat Williams to NPI’s Cas­ca­dia Advo­cate to dis­cuss the Supreme Court’s hor­rif­ic Dobbs deci­sion, which was pub­lished last Fri­day. Cat holds a J.D. from Berke­ley Law and is a civ­il lit­i­ga­tion attor­ney. She cur­rent­ly focus­es on intel­lec­tu­al prop­er­ty lit­i­ga­tion and has pre­vi­ous­ly rep­re­sent­ed clients in wage theft and domes­tic vio­lence cases. 

“It is time to heed the Con­sti­tu­tion and return the issue of abor­tion to the people’s elect­ed representatives.”

So writes Jus­tice Ali­to in Dobbs v. Jack­son Women’s Health Orga­ni­za­tion, which the Supreme Court’s six con­ser­v­a­tive mem­bers used to strike down Roe v. Wade and deny the long-rec­og­nized right to abortion.

But Jus­tice Ali­to knows that ger­ry­man­der­ing in the vast major­i­ty of the twen­ty-six states that joined Mis­sis­sip­pi in ask­ing him to over­turn Roe has cement­ed unfair Repub­li­can rule in state leg­is­la­tures for decades to come.

Indeed, sev­er­al such state leg­is­la­tures already had “trig­ger laws” out­law­ing abor­tion for any pur­pose the moment Roe was overturned.

Ali­to pats the Court’s shoul­der for cham­pi­oning democ­ra­cy and states’ rights, when in fact Dobbs know­ing­ly throws the repro­duc­tive rights of mil­lions of women to the wolves — ger­ry­man­dered state leg­is­la­tures. And each jus­tice knows this.

The Dobbs major­i­ty jus­ti­fies its unprin­ci­pled deci­sion by claim­ing that “Roe was egre­gious­ly wrong from the start.” But Roe was a 7–2 deci­sion. Planned Par­ent­hood v. Casey, which pre­served the essence of Roe, was a 5 4 plu­ral­i­ty deci­sion. Dobbs was 6–3, count­ing Jus­tice Roberts’ reluc­tant joinder.

Thus, accord­ing to Ali­to, fif­teen of the twen­ty-sev­en votes favor­ing repro­duc­tive rights in the three sem­i­nal cas­es — over half — were “egre­gious­ly wrong”.

This is non­sense, and anti­thet­i­cal to sound prin­ci­ples of stare deci­sis (“like cas­es are treat­ed alike”). Tra­di­tion­al­ly, “egre­gious­ly wrong” cas­es are only over­ruled by a size­able major­i­ty, if not unan­i­mous­ly. For exam­ple, Brown v Board of Edu­ca­tion, which out­lawed school seg­re­ga­tion, was a unan­i­mous decision.

So: Why, exact­ly, was Roe “egre­gious­ly wrong from the start”?

Only because there are now enough right wing votes on the Court to say so.

Dobbs, which applies the Glucks­berg test (which con­tem­plates whether a right is “deeply root­ed in this Nation’s his­to­ry and tra­di­tion,” and which the Court has sub­se­quent­ly held as “incon­sis­tent with the approach this Court has used in dis­cussing fun­da­men­tal rights”), while simul­ta­ne­ous­ly claim­ing that the deci­sion “does not doubt on prece­dents that do not con­cern abor­tion” (appar­ent­ly aban­don­ing the ques­tion of whether those rights are “root­ed in this Nation’s his­to­ry and tra­di­tion”), is not root­ed in sound legal principle.

Rather, it is an exer­cise of Repub­li­cans seiz­ing more pow­er years in the making.

This is not the first time mem­bers of this Court have made what turned out to be emp­ty assur­ances about the future sta­tus of con­sti­tu­tion­al rights.

Each of the three Trump appointees — Jus­tice Kavanaugh, Jus­tice Gor­such, and Jus­tice Bar­rett — assured the Amer­i­can peo­ple dur­ing their con­fir­ma­tion hear­ings that Roe is well-set­tled law. Jus­tice Kavanaugh stat­ed that Roe is “set­tled as prece­dent of the Supreme Court,” and that “one of the impor­tant things to keep in mind about Roe v. Wade is that it has been reaf­firmed many times.”

Roe v. Wade is the law of the land,” Jus­tice Gor­such declared. “I accept the law of the land, Sen­a­tor.” Per­haps most notably, Jus­tice Bar­rett stat­ed: “Judges can’t just wake up one day and say I have an agen­da — I like guns, I hate guns, I like abor­tion, I hate abor­tion — and walk in like a roy­al queen and impose their will on the world. It’s not the law of Amy; it’s the law of the Amer­i­can people.”

Yet each of these three indi­vid­u­als — as soon as they had the oppor­tu­ni­ty to — joined in over­turn­ing what they once referred to as “set­tled prece­dent of the Supreme Court.” The irony was appar­ent­ly lost on Jus­tice Ali­to, who scold­ed the dissent’s con­cern over oth­er sub­stan­tive due process rights as “designed to stoke unfound­ed fear that our deci­sion will imper­il those oth­er rights.”

But that fear is far from unfounded.

More than a gut­ting of repro­duc­tive rights and wom­en’s rights, Dobbs is a breach of trust. Jus­tice Clarence Thomas’s con­cur­ring opin­ion, while alarm­ing, is at least an hon­est admis­sion of the right wing’s agenda.

Unlike his col­leagues, who are pre­tend­ing that Dobbs stops at the right to abor­tion, Thomas dis­closed that abor­tion is mere­ly the first item on the agenda.

“We should recon­sid­er all of this Court’s sub­stan­tive due process prece­dents,” he writes, includ­ing Gris­wold (right to con­tra­cep­tion), Lawrence (right to same sex inti­ma­cy), and Oberge­fell (free­dom to marry).

In oth­er words: those rights should not exist.

Indeed, Jus­tice Thomas declares that sub­stan­tive due process (which allows courts to estab­lish and pro­tect cer­tain fun­da­men­tal rights from gov­ern­ment inter­fer­ence) is a “legal fic­tion” that “has harmed our coun­try in many ways.”

While elect­ed Repub­li­cans take a more covert approach to chip­ping away at fun­da­men­tal rights, Jus­tice Thomas’ con­cur­rence should remind us all of what is at stake. And Dobbs should remind us that elec­tions mat­ter — at the fed­er­al lev­el, they deter­mine who will appoint and con­firm (or not con­firm, in the case of Mer­rick Gar­land!) those trust­ed with uphold­ing our most fun­da­men­tal rights. At the state lev­el, they deter­mine who will be trust­ed to pro­tect those rights when the most pow­er­ful branch­es of the fed­er­al gov­ern­ment refuse to do so.

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