Justice Alito’s opinion — his assurances to the contrary notwithstanding — threatens the entire edifice of activist precedents passed during the last century. And that is a very, very good thing.
The primal scream from progressives over Justice Alito’s draft opinion overturning Roe v. Wade is both obscene and justified. It is obscene because what the progressives want — the progressive sacrament of abortion to remain as constitutional law — is an act of unconstitutional judicial activism and has been an affront to the Constitution since the day it was announced. The progressive’s primal scream is justified, though, in the sense that the progressives accurately recognize that the logic of Alito’s decision directly threatens the entire bevy of activist decisions over the past century. This could be a domino that the left can only hope to stop by a top-down coup.
The left has been relying on the Supreme Court to unconstitutionally advance the progressive agenda for over a century. For most of that time, the leftist’s only hope of enacting their radical progressive agenda was to ask a willing Supreme Court to amend the Constitution by judicial fiat. Examples abound. For but a few examples:
- the Supreme Court has been, by judicial fiat, slowly removing the Jewish and Christian religions from the public square;
- the Supreme Court has repeatedly approved of an extraconstitutional regulatory state that nullifies the checks and balances framework of the Constitution;
- the Supreme Court has created “gay rights,” including the right to homosexual marriage, out of whole cloth;
- the Supreme Court has created a new role for the Courts in warfare that has no basis in the Constitution; and of course, in its most destructive act of judicial fiat, (see Alito’s opinion below)
- the Supreme Court created a constitutional right to abortion out of whole cloth.
Bookworm put the highlights of the Alito opinion in the post below. The draft decision is, in many ways, a masterpiece of originalism that refutes all of the substantive arguments in favor of keeping abortion as a right enshrined in federal constitutional law. As Alito painstakingly recounts, there was never a “right” to abortion in pre-1776 English law or American law, when our nation was founded, nor through the time the 14th Amendment was passed after the Civil War, all claims to the contrary being fraudulent. In fact, abortion during those periods was criminally proscribed.
Ultimately, Alito states clearly that the 1973 Supreme Court that approved of abortion as a constitutional right was, in essence, usurping the powers of the people and their legislative representatives. It was an exercise of “raw judicial power,” outside of the Constitutional powers of the Supreme Court.
But Alito is bound and determined to limit the immediate reach of his opinion to abortion and not to use the legal arguments he makes to threaten all of the Supreme Court precedents that are, in reality, unconstitutional acts of judicial activism. He does this by repeatedly saying in his opinion that abortion is unique among the activist precedents in that abortion threatens human life in a way that, say, homosexual marriage does not.
Whether this is a sincere belief on his part, or merely prudential for the moment, it is impossible to say. It is a legal sleight of hand that I do not find convincing. An unconstitutional act of judicial activism is always unconstitutional, irrespective of the precedent it is announcing.
On this, I find myself in agreement with many of the progressives doing their primal screams today. For example, here is Charles Pierce, of Esquire, one of the more odious progressive scum in the media. He understands what is at stake for progressives with this decision and why:
The leak of a draft opinion from the Supreme Court to Politico would have been an earthquake beneath the surface civility of Washington in any case. But to have the first such leak be Justice Samuel Alito’s draft opinion demolishing Roe v. Wade was beyond even that. This was not an earthquake. It was Krakatoa. The reputation of the Supreme Court lies in ruins at the bottom of the sea. The lives of millions of American women have been immiserated. The basic topography of the American republic has been rearranged. Again.
You want to see the part of the leaked draft opinion that is the most vivid demonstration of the majority’s bad faith? It’s a reassurance that I wouldn’t trust as far as I could throw Antonin Scalia, and that’s after digging him up. In this, it’s pure Alito. It’s this passage right here.
“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.”
God above, what a crock.
They’re coming for Griswold, and for Obergefell, and for Lawrence, and for Loving, for all I know. I have read too many conservative essays concerning the illegitimacy of a constitutional right to privacy, all of them emerging from the same thickly manured intellectual garden that produced at least four of the justices, including all four of the justices who were appointed by presidents who were elected with fewer popular votes than their opponents. None of the four give a rip for the concept of unenumerated rights. (Justice Amy Coney Barrett wouldn’t even defend Griswold as legitimate precedent at her confirmation hearing.) And Alito’s fig leaf is shredded by its own self-contradiction. If his logic in this draft opinion regarding Roe is sound, then none of the decisions based on a right to privacy are legitimate either.
Pierce is, I think, right about most of the activist precedents he mentions above, though it should be noted that several of these precedents could easily be upheld on alternative grounds that are firmly grounded in the text of the Constitution. So, for example, the right of people to marry outside of their racial group is easy to establish based on the text and history of the 14th Amendment as being explicitly directed at giving blacks equal rights and legal protections with whites in the aftermath of our Civil War.
But the rest of the things Pierce mentions are indeed unconstitutional acts of legislative policy-making that are an affront to our constitutional system and are a mortal threat to its long-term viability. Let us hope that the Supreme Court adopts the Alito opinion as written. Then, the Progressive screams over the fact that the Supreme Court is returning to its prescribed role in the Constitution should be music to the ears of every American.