Friday, May 6, 2022

In Abortion Case, Trashing Stevens' Legacy

            All nine of the current Supreme Court justices gathered in the Great Hall on Monday (May 2) to join in a memorial service for the late justice John Paul Stevens, who graced the Supreme Court bench for thirty-five years with unfailing courtesy and judicious moderation until his retirement in 2010.

            The hour-long succession of tributes included one from Stevens’ lawyer grand-daughter, Hannah Mullen, who fondly recalled Stevens as a devoted grandfather and a judicial moderate who was neither liberal nor conservative but simply impartial.

            Unbeknownst to those who viewed the live-streamed ceremony, five of the justices in attendance had voted three months earlier to overrule the landmark abortion rights decision, Roe v. Wade (1973) in a case argued in December, Dobbs v. Jackson Women’s Health Organization. The state of Mississippi brought the case to the Court with the specific goal of scrapping the 49-year-old precedent and eliminating for American women the repeatedly reaffirmed right to terminate an unwanted pregnancy.

            Stevens was one of the fourteen justices who had served since 1973 to have voted to reaffirm Roe v. Wade in the face of concerted political and legal campaigns waged by so-called “pro-life” groups to overturn the decision. As the memorial service proceeded, the Court’s overhead camera showed recognizable images of the current justices seated in the front rows, including Justice Samuel A. Alito Jr., author of the 67-page draft opinion in Dobbs circulated from his chambers in early February with apparent support from four of the other current justices.

            From all appearances, Alito seemed to listen attentively and respectfully as several of Stevens’ former law clerks sang his praises as a careful, case-by-case jurist. Also spotted during the memorial was the former justice, Anthony M. Kennedy, who provided a critical vote to reaffirm Roe v. Wade in the later case Planned Parenthood v. Casey (1992). Kennedy retired in 2018 to allow President Donald J. Trump to appoint a Republican judge in his place to solidify the Court’s conservative majority.

            By nightfall on Monday, the Court was rocked by an extraordinary breach of the Court’s all-but-inviolate secrecy of deliberations. An unidentified person “familiar with the Court’s proceedings” – possibly a law clerk-- leaked to the daily newspaper, Politico, the complete text of Alito’s, 67-page draft opinion. The newspaper published the text in the edition posted on-line that night. The scoop made page-one headlines in major newspapers the next morning: the Washington Post headlined the lead story, “Supreme Court Ready to Reverse Roe v. Wade.”

            Politico’s reporters Josh Gerstein and  Alexander Ward aptly described Alito’s draft opinion in their story as “a full-throated, unflinching repudiation of the 1973 decision” and quoted Alito’s description of the decision as “egregiously wrong from the start.” They reported that Alito had tentative votes for his opinion from four of his fellow Republican-appointed conservatives: Thomas and Trump’s three justices, Gorsuch, Kavanaugh, and Barrett. Major newspapers followed the next day in reporting the same line-up, with Chief Justice Roberts conspicuously not on board.

Trump, it needs to be recalled, promised during his 2016 campaign and his one-term presidency to appoint justices who would vote to overrule Roe v. Wade. In their confirmation hearings, however, Gorsuch, Kavanaugh, and Barrett all described Roe v. Wade as settled precedent and disclaimed any interest in reversing the decision. Hardly anyone was fooled. Republican senators all voted in lockstep to confirm all three by narrow, party-line votes; outnumbered Democrats voted against all three.

Alito’s tone in the draft opinion was immoderate to the max, with no trace of Stevens’ admired moderation and judicial modesty. Alito made much of the oft-repeated canard that the Constitution has “no express reference to the right to an abortion” (slip op. at 9), even though the Court in Roe v. Wade held that reproductive rights are part of the “liberty interest” protected by the Due Process Clause and the Ninth Amendment. One legal jokester responded on Twitter by noting that the Constitution similarly says nothing about “aircraft carriers.”

On Twitter, I noted that the Constitution similarly says nothing about marriage, contraception, child-rearing, or sexual intimacy, even though the Court’s twentieth-century precedents have established constitutional protections in all those areas. Two law school professors, Melissa Murray and Leah Litman, warned in an op-ed in the Washington Post that Alito’s logic in overruling Roe could jeopardize some of those decisions.

Within the draft opinion itself, Alito batted away that concern.  “To ensure that our decision is not misunderstood or mischaracterized,” Alito wrote, “we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

Legal scholars with stronger academic credentials than mine have already critiqued Alito’s opinion at length, in the blogosphere and on cable talk programs. There is no need to repeat those criticisms in this space, a full week later. Apart from the substance of the opinion, however, Court watchers were in full hand-wringing mode about the effect of the leak on the Court’s institutional integrity. Three days later, Adam Liptak’s lead story in the New York Times carried this headline: “Leak Intensifies View That Court Is Too Political.”

Stevens' appointment by a Republican president, Gerald Ford, came on the recommendation of Stevens' home-state Republican senator, the moderate Charles Percy. Ford avoided overt partisanship in his post-Watergate effort to assure Americans that the rule of law was on solid ground. By contrast, Trump showed little regard for the rule of law and exalted politics over law in virtually all of his judicial appointments, including the three right-wingers he named to the Supreme Court.


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