So long 'stare decisis' – we hardly knew ye

The Supreme Court has confirmed that the draft opinion overturning Roe v. Wade and Planned Parenthood v. Casey is authentic, but, like all drafts, might change before it is final. Below are a few observations.

If the final opinion is substantially the same as the draft one, the tone is egregious and full of hubris. Reasonable people can disagree about whether the right to abortion should be protected by the Supreme Court. But the dismissive rhetoric by Justice Samuel Alito of the reasoning in both Roe and Casey is unnecessary and hateful.

There are ways to write an opinion overturning those landmark cases that are sensitive to both sides. The draft is not such an opinion. If unchanged, it will further increase polarization on this difficult issue.

The opinion reads more like a dissent by the late Justice Antonin Scalia or an inflammatory argument of a media pundit than a Supreme Court opinion dealing with the most difficult of topics.

By using “unborn human beings” and similar rhetoric, the court may be laying the groundwork for future courts to strike down abortion protections in blue states, a calamity beyond imagination.

The draft opinion's discussion of the history of abortion law does not accurately reflect our country's real struggles with this issue.

Abortions before quickening were not illegal in America as a general matter before the mid-19th century. So much for serious originalism.

As Mike wrote today in a Verdict column, this draft opinion is likely just the beginning of major changes in constitutional doctrine. He said:

The Alito draft … distinguish[es] the abortion right from the rights recognized in the cases on which Roe and Casey rely. Crucially, Roe and Casey do not rely on Lawrence or Obergefell, as both of those rulings post-date Roe and Casey. The not-so-subtle implication is that the court stands prepared to overrule Lawrence and Obergefell.

What this means, and what I have been saying for a while, is that the court's striking down of state same-sex marriage bans in Obergefell, and federal bans in Windsor, may well be overturned by the court.

Chief Justice Roberts ended his dissent in Obergefell by saying:

If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.

I have always thought Roberts wrote the last two sentences that way so he would feel justified in reversing Obergefell some day.

I fear for the LGBT-plus community in the US, as that case may be coming sooner rather than later either by the Supreme Court or ambitious Donald Trump appointees to the lower federal bench.

Assuming the draft opinion becomes the law of the land, one does not have to be a hardcore legal realist to understand and appreciate its major implications for the role of stare decisis at the Supreme Court.

Throughout the 1980s and up to the Casey decision, the federal government expressly asked the court to overrule Roe altogether.

The court ducked the issue. Then, in Casey, it said it was not going to reverse Roe despite those efforts expressly on the basis of stare decisis.

It was that reasoning that led many to labelCasey a "super-precedent." Alito’s draft opinion throws all that away with language more appropriate to a political campaign than a judicial opinion.

But if the court can reverse a "precedent on precedent" in one of the most important cases, is any precedent meaningful? I think not.

Others will write and comment on the leak itself. I will only say that if it turns out that the leak came from another justice, unlikely but still possible, the Supreme Court might never be the same.

Finally, we are here today solely because Mitch McConnell blocked President Obama from appointing anyone in 2016, which led to the confirmation of Niel Gorsuch, and then he rushed through the nomination of Amy Coney Barrett at the end of Trump's term.

Without those two, Roe and Casey would not be in danger.

That chain of events is excellent fodder for political scientists and legal realists. But what I want to say is that, assuming the draft opinion becomes law, the Constitution had nothing to do with it.