Justice Samuel A. Alito Jr.’s recently leaked draft opinion overruling Roe v. Wade has amplified the loss of credibility the Supreme Court has suffered as its approval rating erodes. It used to run as high as 65 percent, but now stands at just 40 percent, according to a recent Gallup Poll. Some people have observed that the court is not merely political or ideological, but is now partisan. A recent survey concluded that twice as many Americans want Roe to stand as do those who want to see it overruled.
While Alito’s draft has worsened the skepticism, it goes beyond politics, ideology, and partisanship. It begins with the statement that “abortion presents a profound moral issue which Americans hold sharply conflicting views [emphasis added].” He telegraphs that the issue poses less a legal or constitutional question than an ethical one. It is a matter of right and wrong.
If abortion is a fundamental right, he argues, it must be explicitly written into the Constitution or “deeply rooted in this Nation’s history and tradition.” He finds it is neither. Instead, he focuses on morality, not law. “Roe was egregiously wrong [emphasis added] from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences,” which he does not identify, except to say it is a debatable issue. It is time to return the issue to state legislators, he says.
What is this about? The draft opinion says nothing about doctrines of interpretation like originalism and the living Constitution, that is, whether justices should interpret the Constitution’s provisions based on their original meaning or should view them from a contemporary perspective. Instead, it forces us to act as “moral” beings, as decided by elected representatives, to accept right and wrong as they define it.
Harvard Law Professor Adrian Vermeule recently explained this approach in the Atlantic magazine as “common-sense constitutionalism” or “moral constitutionalism.” As Vermeule put it, “it is now possible to imagine a substantive moral constitutionalism” that forces us to be “moral” individuals, as our leaders conceive morality, no matter how we individually feel.
It is, Vermeule says, an “illiberal” approach, which is inherently undemocratic and authoritarian. While Alito does not cite Vermeule, Justice Barrett has apparently bought into Vermeule’s ideas, and Alito’s draft echoes them.
According to this view, we will be forced to live a moral life. Vermeule says this achieves “the common good,” and only elected officials will know how to make us moral beings. We will have “respect for the authority of rule and of rulers; respect for the hierarchies needed for society to function; solidarity within and among families, social groups, and workers’ unions, trade associations, and professions; appropriate subsidiarity, or respect for the legitimate roles of public bodies and associations at all levels of government and society; and a candid willingness to ‘legislate morality.’”
He does not want “to maximize individual autonomy or to minimize the abuse of power (an incoherent goal in any event),” but he sees that this will “ensure that the ruler has the power needed to rule well.” Are we certain our leaders will “rule well”? Look to our history.
State representatives, according to Alito, will create the moral environment for us to live, well, the way they want us to live. This is hardly democratic. Is this what we want?
If, as reported, Alito was joined by four other justices, including the three newest Trump-nominated justices, did any of the three mislead the Senate Judiciary Committee when asked about Roe? All three — Neil M. Gorsuch, Brett M. Kavanaugh, and Amy Coney Barrett — expressed support for precedent, the legal principle of stare decisis, which means that most of the time judges stand by decisions previously made, such as the 1973 Roe decision.
As just one example, and there are several others, in 2017, Gorsuch said, “I would tell you that Roe v. Wade, decided in 1973, is a precedent of the United States Supreme Court. It has been reaffirmed. A good judge will consider it as precedent of the U.S. Supreme Court worthy as treatment of precedent like any other.”
However, these justices clearly signaled their distaste for Roe by their questions when the court discussed the case that may overrule it: Dobbs v. Jackson Women’s Health Organization. Kavanaugh, for example, asked, “Why should this court be the arbiter, rather than Congress, the state legislatures, state supreme courts, the people being able to resolve this?” Gorsuch and Barrett reflected the same sentiment.
They have all now seemingly bought into the ideas underlying moral constitutionalism. No matter that Alito clearly focused only on abortion, and said his decision was narrowly drawn only to deal with it: At stake are all other court-discovered fundamental rights that are not explicitly protected in the Constitution, or are not “deeply rooted in this Nation’s history and tradition.” Alito says that they do not “involve the critical moral question posed by abortion,” namely the killing of a fetus.
But he cited them, which should make us wary about their future: the right of interracial couples to marry (Loving v. Virginia, 1967); the right to privacy (Griswold v. Connecticut, 1965); the rights of parents to raise their children as they please (Pierce v. Society of Sisters, 1925, and Meyer v. Nebraska, 1923); the right to procreate (Skinner v. Oklahoma, 1942); the right of adults to engage in consensual sexual activity in private (Lawrence v. Texas, 2003); and the right of same-sex couples to marry (Obergefell v. Hodges, 2015).
Do we want our state representatives to be some sort of enlightened or benevolent despots to tell us how to live our lives when it comes to these issues? Think about it.
Jack Fruchtman lives in Aquinnah. The second edition of his “American Constitutional History” was published in March.