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.