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What critics of Justice Alito’s leaked opinion miss

by | May 13, 2022

By Dave Andrusko 

Like most of you, I’ve read a fair amount of the gazillion criticisms of Justice Samuel Alito’s draft opinion which call for Roe and Casey to be overturned. Predictably, for the most part, they are more speed than altitude, more heat than light.

But Jonathan Capehart’s The other scary thing about Alito’s draft ruling on abortionleft me scratching my head. He begins by mocking Justice Alito’s “judicial screed” for including historical references that you actually have to read before poking fun at them. But he also wastes no time getting to the meat of the op-ed. 

So what is “The other scary thing about Alito’s draft ruling on abortion? That he draws extensively from the dissents in prior abortion cases handed down by the Court.

“In their own way, these dissents are just as scary — but they also provide a model for how to weather this dark moment,” Capehart writes. “It’s not unusual for dissents of the past to show up in new rulings. As Neal Katyal, acting solicitor general during the Obama administration, told me recently, ‘”The seeds of a dissent later flower into a majority opinion.’”

The classic example is Brown v. Board of Education (1954) “which stood on the powerful dissent of Justice John Marshall Harlan in the ‘separate but equal’ shame that was the majority opinion in Plessy v. Ferguson in 1896.” He adds, “Maya Wiley, a former federal prosecutor who is now president and CEO of the Leadership Conference on Civil and Human Rights, described dissents as ‘the brief for a future appeal to the Supreme Court from the ghost of Supreme Courts past.’”

So how does Capehart distinguish these dissents from the dissents Justice Alito cited? Justice White’s dissents in Roe (1973) and Thornburgh (1986) and Justice Scalia’s dissent in Casey (1992). Aside from personal attacks, he doesn’t. 

What he does is cite Justice Scalia’s dissent in a case more to Capehart’s liking. But talk about missing the boat. Scalia was forever saying he was not writing his personal preferences into what the Constitution said.

But Capehart’s (long drawn out) point comes in the final two paragraphs:

More directly helpful in the court’s coming era of conservative dominance, though, will be the dissents from its left wing. The three sitting liberals’ progressive yet realistic legal outlooks mean they are excellent mapmakers for future justices. Plus, reinforcements arrive this fall, in the form of Ketanji Brown Jackson; her dissenting voice will be equally vital in laying the groundwork to arrest the overreach of the 6-3 majority.

Janai Nelson, president of the NAACP Legal Defense Fund, told me she believes that Jackson’s dissents will be “prescient as to what law the Supreme Court will eventually produce when it is rebalanced to reflect the will of a majority of Americans.”

What’s that again? The “three sitting liberals’ progressive yet realistic legal outlooks.” 

One would beg to differ but obviously he hopes that pro-abortionists on the Court would lay the ground work for a comeback in years to come. 

But Roe will far more resemble Plessy v. Ferguson than it does Board v. Board of Education. When future historians look back, Roe will be seen as one of the Court’s most egregious mistakes.

Categories: Roe v. Wade