Opinion | What Alito Should Have Written

I, along with plenty of mainstream liberal and conservative legal scholars, believe that Roe’s constitutional foundation was always shaky at best. And yet, I found Justice Samuel Alito’s draft opinion unsatisfying and unpersuasive. 

Our political debates focus more on the Supreme Court than at any other time in our country’s history. This phenomenon isn’t entirely, or even mostly, the court’s fault. But the fact remains: The court is inevitably going to be seen — and treated — more and more like a political actor. This is more true now that the court has six justices appointed by Republican presidents. With justices serving decades on the court, accidents of history can mean that one side of the ideological spectrum can believe they have been relegated to “permanent loser” status unless the court does more to educate the public through their opinions on the role of the third branch. 

I have tried to imagine what a majority opinion for Dobbs v. Jackson Women's Health Organization aimed at persuasion — or at least explanation — could look like. In doing so, I’ve tried to address some of the best, good faith arguments I’ve seen from the pro-abortion rights community. How can the court overturn its own precedent after 50 years? What happened to the “settled law” that we heard so often during these confirmation hearings? Why should we care what white men thought about women’s rights in 1790? How can we be sure same-sex marriage isn’t next on the chopping block?

The justices are not partisans in robes. But the future of our experiment in self government may depend on their ability to prove it. They must do more to reassure the country that there are no permanent winners and losers and to protect their own institution from the other branches, which are trying to save themselves by fingering the court for their own failures. What could create more contrast with those branches than if the court showed more humility in their own fallibility and generosity toward opposing viewpoints?     

Here’s what I wish Alito had written: 

In 1890, Louisiana passed a law that required “all railway companies carrying passengers in their coaches [to] provide equal but separate accommodations for the white and colored races.”

A group of citizens decided to challenge this law. They informed the railroad company of their plans to have Homer Plessy — a man of 7/8ths white descent who was fair skinned and born free — ride in the car for white passengers despite the fact that under Louisiana law a person of 1/8 Black was required to ride in the “colored” car.

As the Supreme Court described it, Plessy was “forcibly ejected with the aid of a police officer, and imprisoned in the parish jail to answer a charge of having violated the above act.” Plessy sued, arguing that the law violated his 13th Amendment right to be free from the badges of slavery and his 14th Amendment right to equal protection of the laws.

As we all know, the Supreme Court upheld the Louisiana law 7-1 in the infamous case, Plessy v. Ferguson. The majority of the court held that:

They rejected Plessy’s argument “that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races” holding instead that “if the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other's merits, and a voluntary consent of individuals.”

Only Justice John Marshall Harlan dissented. And in doing so, he wrote one of the most enduring statements on American constitutional liberty that would sit in quiet judgment on this court’s decisions upholding Jim Crow laws for another 60 years.

Having read Harlan’s words, thirteen Topeka parents sued their school district in 1951. Among the children of the plaintiffs was third grader Linda Carol Brown. Every day, Linda walked six blocks to get on a school bus that would take her another mile to Monroe Elementary, a segregated Black school, even though Sumner Elementary, a white school, was only seven blocks from her house. They asked the court to find that the segregation of children in public schools solely on the basis of race deprived the children of equal educational opportunities.

But as the Court considered Brown v. Board of Education, Plessy had been settled law for over 50 years.

The doctrine of stare decisis admonishes courts “to stand by things decided,” adhering to precedent in making their decisions. And there is good reason for it. A court that changes its mind every time there is a new justice or different set of facts undermines the very concept of the rule of law and creates uncertainty for citizens, businesses and elected officials trying to go about their lives while following the laws of the land.

The question, then, is: How did a unanimous Supreme Court come to overturn “separate but equal” 50 years later?

The answer is because stare decisis is not a doctrine written in stone. Or else Plessy would still be the law of the land. So would Bowers v. Hardwick. Miranda rights wouldn’t exist. Gender discrimination wouldn’t be banned. The list is long.

And so in 1954, the Supreme Court ignored its own precedent, holding that separate educational facilities are inherently unequal.

So what are we to make of Roe v. Wade? A decision that has also been settled law — meaning there has been a directive for lower court’s to follow — for 50 years.

The question of whether someone describes themselves as pro-life or pro-choice is not just divisive, but unhelpful in a world where most Americans can understand the difficulty of the question. A person’s opinions on abortion must be divided into three different areas: Is it moral, should it be legal, does the U.S. Constitution recognize it as a right?

Someone who believes watching pornography is immoral may nevertheless believe that we shouldn’t have laws to put people in jail for it. Someone who would advocate for a law to ban cruelty to animals may agree that the Constitution doesn’t protect animal rights. And someone who believes the Constitution protects hate speech may nevertheless find it both immoral and would support a criminal law to ban it but for the constitutional protection.

This Court has not been asked whether we believe abortion is immoral. We have not been asked whether abortion should be protected or prohibited under federal or state laws or in what circumstances.

We are only asked one question today: Should the Supreme Court follow its previous holding that the Constitution protects a right to terminate a pregnancy?

First, very few legal scholars across the ideological spectrum defend Roe on its legal merits. Laurence Tribe, adviser to three Democratic presidents, once said, “One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.” Benjamin Wittes, a noted legal writer who favors permissive abortion laws, has noted, “Since its inception Roe has had a deep legitimacy problem, stemming from its weakness as a legal opinion.” Akhil Amar, a widely respected professor and a self-described “Democrat who supports abortion rights,” described Roe as “ripe for reversal” because it was “not grounded either in what the Constitution says or in the long-standing, widely embraced mores and practices of the country.” Even our former colleague, Ruth Bader Ginsburg, was heavily critical of the decision despite her career long fight for women’s equality.

As to the underlying constitutional question, the Roe court itself didn’t take its analysis very seriously. It never even cited the Constitutional text it was purporting to interpret — the 14th Amendment. As Amar has written:

It is fair to wonder why we care what the law was in 1790 or 1860. Women couldn’t even vote, after all. The Constitution’s drafters were closer in time to the days of burning witches than they were to our era. And if the Constitution doesn’t protect a right to an abortion based on their beliefs, how could it possibly protect a right to same-sex marriage or access to birth control pills?

When we think about our American experiment and the unique quality of self-government that stands out in the course of human history, it isn’t the Constitution’s founders whose opinion we care about. The document is impressive, but it isn’t the miracle. What happens next is. The drafters sent it to the states and they put it to a vote. Whether you are descended from people on the Mayflower or you took the oath to become an American citizen yesterday, you are the inheritor of the ratifiers, the people who voted to live under the rules of that document. That is what “we the people” means.

This is why we look to the Constitution. Not because we believe it is an inerrant text, but because those are the rules that our governmental forebearers agreed to play by. And when we find that they have made a mistake — large or small — the solution they provided is the same: amendment. So that whether a right is found in the Constitution’s text or not, if enough people believe that it should be there, we can amend the rules themselves. The Constitution didn’t protect a woman’s right to vote. But enough people in the country believed that women should have that right and that it should be enshrined in the rules. So we amended the Constitution in 1920 to do just that.

We aren’t stuck with the Constitution as it existed in 1790 or 1860 unless we refuse to do the work to amend it, choosing instead to argue that a right was there all along. We can even amend the Constitution to make amending it easier (and as Antonin Scalia said, we should).

And what about same-sex marriage and contraception and interracial marriage? Loving v. Virginia is easy. The 14th Amendment speaks clearly that a state can’t ban marriage on the basis of race for the same reasons that the Brown court held that racially segregated schools are inherently unconstitutional. And in Griswold, the law banning contraception was a historical outlier (and just a dumb, nutty law), which again puts that right on much firmer constitutional ground. But I dissented in Obergefell just 7 years ago. And I haven’t changed my mind on the constitutional question. I don’t believe that the history or text of the Constitution requires states to recognize those marriages. But there are a lot of reasons the question of revisiting same-sex marriage would be different than the one before us if it were challenged today.

Most importantly, there are millions of people who have gotten married, started families, built a life together in reliance on that opinion. In comparison, Roe created a right to end a pregnancy within the first 24 weeks of a pregnancy — any reliance interest ends after that length of time. Lower courts have had no problem following our same-sex marriage decision and we have not needed an opportunity to clarify our holding in that area since. In that same span of time, we have ruled in three cases asking us to clarify the meaning of an “undue burden,” a standard created by the Supreme Court in Planned Parenthood v. Casey in an attempt to make Roe more workable, and lower courts have heard scores more, creating splits about the law throughout the country.

And, of course, political opinion has shifted on same-sex marriage such that it’s hard to imagine a cultural change back in the other direction. Abortion has never experienced any sort of consensus. Seventy percent of Americans still believe that abortion should be legal in some cases and illegal in others. Finally, marriage involves two consenting adults. The very reason that abortion is such a difficult question is because we share a moral intuition that a person’s life begins some time before we are born.

For all of these reasons, regardless of whether I think it was correct constitutionally at the time, the same factors that have eroded the foundations of Roe over the last 50 years have only strengthened Obergefell.

Today, we are only able to answer the very narrow question of whether the ratifiers of the Constitution intended to codify a right to obtain an abortion, and if they did not, whether this court should stick by an incorrect decision for the sake of consistency or whether it should correct its mistake.

In the spring of 1953, the court struggled with how it should rule in Brown v. Board of Education. The outcome was far from obvious or preordained. So torn were the justices that they asked to hear argument in the case for a second time, delaying their decision until May 1954.

Our history is humbling. The Supreme Court has made grievously wrong decisions in its past — a list too long and saddening to repeat here. But that is why a portrait of Justice John Marshall Harlan watches over us in the room where we decide the cases before us. He stood alone when he dissented in Plessy. He knew he would not persuade any of his seven colleagues. He was not writing for them. He was writing for us.

He reminds us that justice doesn’t rely on public opinion polling. He presses us to consider what is the 7-1 issue of our day that future generations will judge us by. He asks us to do our jobs without fear or favor.

We know today’s decision will be met with sadness and anger by many people who have strongly and sincerely held beliefs on this question. To them we say: You may be right. We can only do the job we have been assigned to the best of our ability — with firmness in the right as God gives us to see the right. But that does not mean we are any more infallible than any court which has sat before us. And if you believe we are wrong, use your voices and your vote to say so. Pass an amendment to the Constitution, draft legislation for your state, protest outside this very building. That is the genius of the ratifiers of our Constitution and that is the gift they have given us that so many billions of our fellow humans may never experience.

After Harlan’s dissent in Plessy, Frederick Douglass wrote him a letter saying “one man with God is a majority” by which he meant that truth was not dictated by this court or even by the victories in our own time. Today, we overturn Roe v. Wade even though it is a famous precedent of this court, even though it has stood on the books for 50 years, and even though millions of smart, thoughtful Americans disagree.

We are grateful the Brown Court did so too.