Dashed-Off Daily Dobbs upDate: 2 May 2022

A leaked (!) majority (!) draft by Alito (!) overturns both Roe (!) and Casey!!

Pictured: a smaller leak than the leak that just leaked out of the Supreme Court.

The second exclamation point in the subhead is justified.

I was actually already gonna write a Dashed-Off Daily Dobbs upDate¹ today. There were some significant developments in Dobbs v. Jackson Women’s Health during the past week! First, we found out last week that Justice Sotomayor and Justice Roberts were not writing the first-draft majority opinion. Second, there was a rumor based on a Wall Street Journal editorial last week that Chief Justice Roberts was lobbying hard to stop one of the other justices from voting to overturn Roe/Casey.²

I was gonna spend, like, six paragraphs explaining how we knew that Sotomayor and Roberts weren’t writing the opinion, who might be writing it instead, and what that likely meant for the outcome.

And now… none of that matters. At all. Because Politico tonight published the first-draft majority opinion. It’s by Justice Samuel Alito, by many measures the most conservative member of the Supreme Court!

I can’t overstate how insane it is that we have this document. No one expected to see a draft opinion in Dobbs v. Jackson for another 30 or 40 years, when the justices had all died and we could start to piece together the puzzle of how the final decision in Dobbs v. Jackson had been reached. The Supreme Court does not leak this kind of material.

There were a couple of minor leaks in 2012 (when someone close to the Court hinted that Chief Justice Roberts had changed his vote in the Obamacare case) and 2020, when Joan Bikuspic at CNN managed to somehow find out (after the fact) how the opinions and votes had been settled in several major decisions (including Bostock v. Clayton County and the DACA case). When Justice Breyer accidentally obliquely hinted at the (totally unsurprising and already imminent) result in Cameron v. EMW Women’s Surgical Center a few weeks ago, it made national headlines and strengthened the argument that Breyer was right to retire. In 1973, Newsweek somehow found out about the outcome in the original abortion decision, Roe v. Wade, a week ahead of time.

These were treated as four-alarm fires. After the Roe leak, Chief Justice Burger tried to force every clerk in the Supreme Court to submit to lie detector tests. A Government Printing Office employee (who denied knowing anything) got reassigned. The Bikuspic leaks were addressed in-house, but the rumor mill says the in-house handling was very grave indeed, because Roberts takes the integrity of the Court Very Seriously and the justices can’t function if they’re paranoid about leaks.

And, those times, the only things that leaked were vote counts.

For an actual leaked draft opinion, I have had to go all the way back to Dred Scott v. Sandford, where Justice Catron allegedly leaked the draft majority to President-Elect James Buchanan. Buchanan then used his knowledge of the outcome to bully Justice Grier, a northerner, into joining the decision so it wouldn’t be a party-line vote. That wasn’t a general leak like this, either. The Supreme Court’s history is long and complex, but it is entirely possible that this has never happened before.

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It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak is the gravest, most unforgivable sin.

But how can I even be talking about the leak when the actual draft majority opinion is right there?

According to Politico, this really is a majority opinion. The Friday after Dobbs, the justices had a private conference and voted on the case:

A person familiar with the court’s deliberations said that four of the other Republican-appointed justices – Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – had voted with Alito in the conference held among the justices after hearing oral arguments in December[.]

Five votes to overturn Roe/Casey meant someone had to write a draft opinion overturning Roe/Casey. The most senior justice in the majority decides who writes. In this case, that was Justice Clarence Thomas. So Thomas asked Alito to write the majority, and Alito agreed.

(Sidebar: this is a little odd. Thomas is a better thinker and writer than Alito, and I think they both know that. So is Gorsuch, for that matter, although Gorsuch can be pretty high-handed. Kavanaugh has a more moderate reputation than any of those three. And Barrett is a woman, which matters not a whit legally, but a great deal politically. Alito seems like the worst person to write this opinion, of the five. Yet the assignment was made.)

We now have that draft opinion from Alito. It’s dated February 10th, three months ago. Definitely out-of-date by now.

After a draft opinion is written and circulated, the justices can change their votes if they don’t find the draft majority opinion convincing. These vote changes can turn a draft majority opinion into an actual dissenting opinion. This happened in the Obamacare case (Roberts went left) and, most notoriously, in Planned Parenthood v. Casey (Kennedy and O’Connor went left). This is what I was most scared of in this case, what I’ve been praying about every day, because Roberts was obviously, very predictably, lobbying to break the anti-Roe/Casey majority. Worse, the Wall Street Journal story suggested that he was close to succeeding, or perhaps already had.

But Politico reassures us:

…and that line-up remains unchanged as of this week.

CNN’s Joan Bikuspic apparently found a leak of her own, because she has now confirmed the guts of the story (albeit not the document itself) and adds this tidbit:

Chief Justice John Roberts did not want to completely overturn Roe v. Wade, meaning he would have dissented from Alito’s draft opinion, sources tell CNN, likely with the court’s three liberals. Roberts is willing, however, to uphold the Mississippi law that would ban abortion at 15 weeks of pregnancy, CNN has learned. Under current law, government cannot interfere with a women’s choice to terminate a pregnancy before about 23 weeks, when a fetus could live outside the womb.³

So, as of Sunday morning, there were still five votes to overturn Roe/Casey. The draft opinion has certainly changed a lot since February. It’s also possible that Alito’s draft is no longer the “main” opinion; someone else’s concurrence may have become the majority and Alito’s majority reduced to a concurrence.

Or Politico’s reporting could just be wrong. It would be bizarre to assume that a news agency has all the correct details about a very big secret when the same news agency so often struggles to accurately report totally public information!

But, for the moment, assuming the leak is reliable and subsequent lobbying has no effect on the final outcome, it seems most probable that a revised version of the Alito draft opinion will become the law of the land when the decision is handed down.

So what’s that opinion say?

If you know anything about abortion law… nothing very surprising!

I really feel like I have a duty to walk you through this opinion. This, the actual legal analysis, should be the centerpiece of today’s story, not the metastory about the leak.

But here’s the thing: Roe v. Wade was a very stupid decision. Not just wrong, not just evil—aggressively stupid. Planned Parenthood v. Casey was somehow even worse.⁴ Any third-year law student, or indeed any reasonably precocious legal pundit with zero formal lawyer training, could write a thoroughly-researched, analytical annihilation of every atom of Roe/Casey. “We hold that Roe and Casey must be overturned” is the lowest-hanging fruit in the history of landmark constitutional decisions. It requires no genius-level theoretical reasoning about the nature of constitutions, like Marbury v. Madison. It needs no judicial massaging to generate new applications of constitutional principles, like Brown v. Board of Education. It’s an exceptionally straightforward case of “Here is the most egregiously wrong court case a conlaw professor could possibly imagine for his easiest test; write a decision correctly applying the law to overturn this constitutional law precedent, with appropriate citations.” It was a ton of work, I’m certain, to assemble the research from original sources and amicus briefs and old decisions, and to structure it into a good clear piece of writing. It would take me months to write Alito’s draft majority opinion. But it would not be difficult.

The only people who could possibly be surprised by any of this decision are people who have no idea how constitutional rights are identified and no clue what Roe and Casey actually said. Those people⁵ should read this opinion! (Yes, if you find this outcome in any way surprising, I am talking about you.) The opinion is a very gentle education in the rules of judicial reasoning, and cuts through a lot of Arlen Specter bullcrap that gets thrown around in abortion cases (like “super stare decisis”).

I’ll walk you briefly through the structure of it, and I’ll leave you to read the detailed evidence Alito presents if you find anything I say here remotely controversial:

Alito’s opinion starts with a brief summary of the history of American abortion law, (especially Roe and Casey), briefly summarizes the central issue in Dobbs v. Jackson (a Mississippi law that bans abortion after 15 weeks), and briefly summarizes the Court’s conclusions: Roe and Casey must be (and are) overturned. That’s all in the preface and in Section I.

In Section II, the real meat and potatoes begins. Alito starts by observing two things:

1. When evaluating whether an old precedent of the Supreme Court should be upheld, extended, weakened, or overturned, it is critical to start by evaluating whether that precedent was correctly decided on firm legal ground (and, if not, how weak it really is). This analysis happens before evaluating whether stare decisis should protect the decision, and actually plays an important rule in that evaluation. Even if the Court chooses to uphold a shaky precedent (which it does sometimes), it has to first determine whether the precedent is shaky.

2. The court in Casey completely skipped this step.

So Justice Alito and his majority do Casey’s work for it: they walk through the evidence Roe v. Wade presented for the existence of a constitutional right to abortion, and analyze whether it was correct.

Alito notes that abortion is not a written right in the Constitution. Roe claimed that abortion was part of a right to privacy… but this is also not a written right in the Constitution. This means that the right to abortion, if it exists, is an unwritten right.

The Court (and Justice Alito) recognize that some unwritten rights do exist and are protected by the Constitution. For example, Americans have a recognized “right to travel,” that is, to move freely between different states, without border controls or anything of that nature. These rights can come from two sources:

1. Some rights are “deeply rooted” in our nation’s “history and traditions,” and are (according to Supreme Court precedent) implicitly protected by the Fourteenth Amendment’s Privileges and Immunities clause or Due Process clause.

2. Some rights may be an “essential component” of “ordered liberty”.⁶

The “history and traditions” test is also known as the Glucksberg Test, and it is well-established in American case law. The thinking is that one very easy way to determine whether the Fourteenth Amendment implicitly protects something is to consult the nation’s history, especially the prevailing laws and practices around the time the Fourteenth Amendment was proposed and ratified. If the thing has been traditionally protected, it might be a “liberty” protected by the Fourteenth Amendment. However, if the thing was not legally protected in our nation’s history—particularly during the timeframe when the 14A came into force—then it cannot be one of the liberties guaranteed by the Privileges and Immunities Clause. If it had been one of those liberties, then the someone at the time would have at least thought to suggest that the 14A protects it.

Abortion wasn’t just “not legally protected” during the time frame in question. It was actively outlawed in every state in the union, the laws during that time were rapidly tightening, and — importantly — absolutely no one, anywhere, even among opponents of abortion restrictions, even suggested the possibility that these laws were unconstitutional or violated individual rights.

Section II-B runs for 15 full pages, and it systematically and painstakingly dismantles the historical arguments and evidence presented in Roe. Roe claimed, based on the faulty and discredited historical research of Cyril Means, that abortion was once protected under the common law, and only started to get outlawed because evil doctors were trying to stamp out midwives and take control of childbirth. This is total nonsense. Alito shows, in detail, that abortion was always considered a criminal act under the common law, that it was a serious matter even before quickening, and that American states began tightening their abortion laws both before and after the 14th Amendment passed as the quickening standard was discredited for being unscientific and underprotective. Roe’s basic analysis of the early American abortion precedents was not just brief, but completely wrong in every important detail.

In Section II-C, Alito turns to the argument for “ordered liberty,” which comes mainly from Casey, especially the notorious passage in Casey where Justice Kennedy started waxing poetic:

At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.

That is, of course, all well and good, Alito notes, but every single time any legislature passes any law of any kind, the liberty to act in certain ways is constrained. The Court allows this because liberty is not absolute. How do we decide which liberties should be constrained and which ones shouldn’t? Is abortion one of them? Alito walks us through some of the policy arguments different people make for or against abortion rights… then reminds us that the courts have neither the competence nor the authority to resolve questions of public policy. Courts may only apply the law. The Fourteenth Amendment, understood through the lens of our nation’s history and tradition, is law. “Freewheeling judicial policymaking” of the kind seen in the discredited Lochner decision… is not. Casey offered no justification for usurping the ordinary legislative authority to determine the shape of “ordered liberty” in areas where the Constitution is silent. All the Casey Court offered was an appeal to stare decisis, the principle that court decisions, once made, become precedents should generally be upheld in future cases.

So, in Section III, Alito turns to stare decisis. Of course, stare decisis is not an inexorable command. As Alito points out, if we followed stare decisis in every case, forever, we would still have “separate but equal” (Plessy), court rulings that outlawed minimum wages and child labor protections (Lochner), and mandatory participation in the Pledge of Allegiance at school regardless of religion (Barnette). The Court overturned those precedents. In the enormous Footnote 47, Alito cites dozens of times when the Court has overturned a constitutional precedent. The footnotes goes on for two full pages of tiny tiny text. It is not a complete list.

The Court traditionally applies five factors when considering whether a wrong decision should be upheld under stare decisis or overturned: the nature of the error, the quality of the reasoning supporting the error, the workability of the rules the decision imposed, the disruption and inconsistency the case caused in other areas of the law, and finally the “reliance interest”—whether anyone depends on the court’s wrong ruling and made long-term planning decisions based on the ruling. Stare decisis is weakest in constitutional cases, because, if the Court gets it wrong, it is nearly impossible for the rest of the country to fix the mistake. (It can only be done via constitutional amendment.)

Again, workmanlike, Alito walks through all five factors and simply, efficiently, cold-bloodedly razes the defenders of abortion rights to the ground. There are no surprises here, unless you are, I don’t know, really confused by what counts as a “reliance interest.” (Justices O’Connor and Kennedy sure were in Casey!) There is not one sliver of justification for upholding Roe/Casey under stare decisis, and Alito proves the case. Not a hard case to prove, I admit, but still very pleasant to see it all laid out clearly. The workability section is particularly devastating, for all the obvious reasons, but hey it’s still nice to see them bulleted like this. Section III is quite long.

Section IV is short. Alito presents us with Casey’s argument that we should leave erroneous abortion precedents in place because it would damage the Court to reverse such a widely known precedent—even if the precedent were wrong, hugely controversial, and widely hated. Alito does not need much time to (politely) point out how insane that is. People respect the Court insofar as it can be counted on to do law instead of playing politics, and playing politics is exactly and only what the Casey plurality commanded the Court to do. Alito then shows how Roe/Casey’s vain, crazed hope that a judicial ruling would “settle” the abortion question once and for all, bringing about peace in our country, has completely backfired and actually inflamed the issue far more than it ever needed to be.

Sometimes the only thing the Court can do after a horrible error is to backtrack. The best time to do that would have been 30 years ago, when Casey came down and there was far less institutional prestige invested in the albatross of a manufactured abortion right. The second-best time to do it is today. The worst time to do it would be 30 years from now, when things are even more inflamed and the Court’s integrity has been fatally compromised. (Alito absolutely does not say any of that so bluntly. This paragraph is me talking.)

Section V is an analysis of the actual Mississippi law at issue in this case. Since Roe and Casey are wrong and there is no constitutional right to an abortion, is the Mississippi law constitutional? Alito reviews the law according to the very forgiving “rational basis” standard that applies when no constitutional rights are involved, and, no surprise, concludes that the law meets that standard. He declares that it should be upheld. He concludes:

We end this opinion where we began. Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.

The judgment of the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

Not the most stirring close in the history of the Court, but, unlike Justice Kennedy, Alito isn’t here to pleasure himself to the sound of his own voice. This is one of the most consequential closings in history, and we can only pray and fast in hopes of seeing those words or something quite like them made official in coming months.

A few things I noted while reading the opinion:

Alito has a well-deserved reputation as a bomb-thrower. His opinions are often loud-mouthed, and he routinely stakes out the most extreme right-wing position that can reasonably be called “mainstream.”

This opinion is not like that, at all. Alito has one or two quips in here (“There was no support. Zero. None.”), but they are gentle and serve his argument. More than once, he goes out of his way to note that he isn’t casting aspersions on the motives of either side. He treats Casey with a respect I find almost difficult to stomach.

Moreover, Alito avoids all the more extreme conservative positions, and even expressly disclaims several. This opinion clearly weakens the legal underpinnings of a whole lot of substantive due process cases, from Griswold (birth control) to Obergefell (same-sex marriage), but Alito repeatedly and clearly insists that, no, this opinion does not touch any other precedent besides our abortion precedents. He insists specifically that Griswold stands unmolested after Dobbs. The difference, Alito argues, is that abortion kills what many people consider a human life, while the other cases don’t deal with issues that even approach that level of moral and social gravity. While this is true, I can’t help noticing that it isn’t really relevant, legally speaking. Alito is deliberately (and not very convincingly) trying to keep his opinion narrow, presumably to keep from scaring off any members of his majority and/or making the inevitable press freakout any worse than it has to be.

There is also not one single solitary mention of “personhood” rights for fetuses, which is currently the cutting edge of conservative legal thought about abortion. I noticed several passages where Alito seemed to carefully leave the door open for personhood theories in the future. (For example, in the conclusion, Alito affirms states’ right to restrict abortion, but interestingly not their right to allow it.) Yet he never actually talks about it. Personhood would recognize fetuses as persons protected by the 14th Amendment, which would make allowing abortion untenable in every state. But it looks like all we can hope for in Dobbs is (no surprise here) the right of each state to restrict abortion if it wants, while other states can do their own thing.

There’s a spot at the bottom of page 64 where Alito was talking about precedents that presumed to try to settle questions judicially that needed to be left to democracy. I was 100% certain I was about to see a citation of Dred Scott v. Sandford, which would have been appropriate for lots of reasons. (Dred Scott tried to do the same “forced judicial settlement” thing that Casey did.) Alito often goes so far out on a right-wing limb that I cringe, but, in this case, even I couldn’t have resisted the jab. Alito did!

This is the behavior of a justice who is pulling out all the stops (relative to his baseline writing) to hold on to a (possibly fragile) majority.

Robert George and John Finnis’s legal brief on the common-law definition of quickening (which may have applied much earlier in pregnancy than is generally believed) gets a shoutout here, although Alito quickly sets it aside by observing that the question need not be settled for his larger point about common law to be sustained. None of George & Finnis’s other, more radical stuff gets mentioned.

No citation of Judge Friendly’s abortion decision, which I was really expecting. Plenty of other Roe critics, especially critics from the left like John Hart Ely, get cited, but not Friendly.

The brief my mom signed gets a citation, which is pretty exciting: if this opinion becomes substantially the final opinion, my mother (who taught me everything I know about the importance of fighting for the unborn) will have been cited in the decision that ended Roe/Casey! Even more credit, of course, would go to the brief’s organizer, the brilliant and winning Prof. Teresa Collett.

…and that’s all I wrote! There's really not that much in this draft opinion to unpack! Like I said, this was not a difficult assignment. The gun rights case being decided this very term would be twice as hard to write.

I was planning to turn, at this point, to an analysis of the leak and what it tells us. Frankly, I’m pretty worried about the leak. (I was also going to address the possibility that this whole thing is fake.)

However, it has taken me a long time to read the opinion and write this reaction. It is now very late at night and I need to turn in. So… I will return to my keyboard tomorrow, hopefully with another Dashed-Off Daily Dobbs upDate in your inboxes before tomorrow becomes Wednesday!

1. An exciting feature where I react to the latest news in American abortion law real fast, without (many) links or footnotes.

2. If you’re just tuning in, I refer to Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) together as Roe/Casey. Roe is the case everyone recognizes, but Roe was actually gutted by Casey. Casey, not Roe, is the actual source of abortion rights in American law today.

3. Chief Justice John Roberts deserves your contempt. His transparently political decisionmaking violates his oath, damages the Court, wastes the political legitimacy he always claims to care about, and, above all, enacts injustice on huge swaths of America, all so John Roberts can tell himself, falsely, that he helped America’s divisive politics when he goes to bed at night. There is no more devoted enemy than a former devotee, and that kinda makes me Eric Bana’s Nero to John Roberts’ Spock.

4. “Of course it was worse! Kennedy wrote it!” Yeah, the voices in my head are right about that.

5. …which, unfortunately, includes the majority of Americans, as I discussed in footnote 1 back in January.

6. Alito pauses briefly to address the theory advanced by some theorists—supported by neither Roe nor Casey—that abortion is guaranteed under the Equal Protection Clause, because only women can get abortions and so it inherently violates the Equal Protection Clause because restrictions on abortion don’t affect men. There is a whollllle lot wrong with this view, starting with its whole understanding of the Equal Protection Clause as providing something more than neutral and fair enforcement of generally applicable laws, but Alito only touches on the most obvious problem: this theory flies in the face of several of the Court’s other Equal Protection precedents—precedents that nobody has asked to overturn and which nobody generally seems to think were bad precedents in the first place.