Roe v. Wade was a constitutionally suspect ruling. It converted an ongoing contentious moral debate into a fixed social policy that a majority of the Supreme Court happened to prefer. One can be a supporter of lenient abortion rules (I am) and still believe the justices in 1973 should have stayed out of the debate (I do). But that’s a wholly different matter than whether the court should now overturn Roe. If the justices do so, as the draft opinion leaked last week suggested they will soon do, the decision will be the most radical product of constitutional law in a hundred years. In that sense, abortion is almost beside the point. The court’s resulting loss of legitimacy will be a catastrophe — far more than whatever harm the leak caused.
The loss has been a long time in coming. For more than two decades now, going back to Bush v. Gore, the court has been altogether too willing to ignore the prerogatives of other branches of government. In Bush v. Gore, it was a state supreme court that the justices chose to snub, as well as commands in federal law and the Constitution itself that disputed presidential elections were for Congress alone to resolve. Why did they gratuitously intervene? Because apparently the justices knew better. Since then, in one key decision after another, it is legislators whom the court has no use for. So, when Justice Samuel Alito’s abortion draft three times conveniently bemoans the exercise of “raw judicial power” and instead three times pays homage to the “people’s elected representatives,” he displays abject hypocrisy. Any professed respect for democracy is a crock.
Let’s take a trip down the memory lane of recent Supreme Court arrogance. In 2008, in the District of Columbia v. Heller ruling, the justices overturned D.C.’s elected representatives’ decision to restrict ownership of handguns. Somehow, the court over the prior two centuries had neglected to read into the Second Amendment anything more than a collective, militia-based right to bear arms. With Alito and Chief Justice John Roberts freshly on the bench, presto, that precedent was tossed aside. In 2010, in Citizens United, the same emboldened justices nullified the judgment of the elected representatives for the entire country to enact campaign-finance regulations. In 2013, the same justices erased the judgment of the people’s elected representatives in Congress to enact the Voting Rights Act 48 years earlier. Alito (who in his application to work for the Reagan administration wrote, “I disagree strenuously with the usurpation by the judiciary of decision-making authority that should be exercised by the branches of government responsible to the electorate”) was part of the 5-to-4 triumphalist majorities in all three cases.
And yet, he now informs us in the draft abortion ruling, the “most important questions in our democracy” should be resolved by “citizens trying to persuade one another and then voting.” Wouldn’t you know that this view suddenly became operative when it’s abortion on the block and after three Trumpian justices — all appointed by a president who had declared that reversing Roe was the key criterion in nominating them — were put on the court?
In extolling democracy, Alito was quoting the late Justice Antonin Scalia, whose vitriolic dissent in the Casey ruling in 1992 that upheld Roe has been a rallying cry for anti-abortion activists. But this was the same Scalia who in the Shelby County case derided the Voting Rights Act and its repeated reauthorizations by Congress. “Whenever a society adopts racial entitlements,” he declared during the oral argument, “it is very difficult to get out of them through the normal political processes.” He even mocked the title of the statute. “The name of it is wonderful — the Voting Rights Act! Who is going to vote against that?” One might have thought that “normal political processes” were democracy by another name. Evidently, democracy is fine, except when it produces results that some judges don’t like. The Shelby County ruling, of course, unleashed waves of state restrictions on minority citizens’ ability to “persuade one another” and then vote.
Yes, Alito is correct that abortion policy ideally should have remained the province of legislators all along. That’s how it works in most other Western nations. It’s what Ruth Bader Ginsburg herself suggested in a law review article the year before she became a justice. But the court isn’t writing on a clean slate. The doctrine of stare decisis exists to promote continuity in the law — and to underscore to the public that, at least in theory, judicial rulings are more than legalistic proxies for partisan judgments. True judicial conservatism means prizing stability, practicing modesty and respecting precedents even when you don’t agree with them. Overturning Roe, which has been upheld over and over by the Supreme Court, simply because you now have the votes helps to give judging a bad name. The court’s continually declining approval ratings will only take a further hit.
Alito has had a bad relationship with stare decisis. In 2015, at a Federalist Society luncheon, his views bordered on the cynical. The Latin phrase “means to leave things decided — when it suits our purposes,” he said. “Stare decisis is like wine. If it’s really new, you don’t want to drink it — it has to age for a while. If it’s really old, it is very valuable, or it has possibly turned to vinegar. … It’s not difficult for a judge to make the stare decisis inquiry come out however the judge wants it to come out.”
Several weeks before, Alito found himself in Shanghai to talk about American democracy and the role of the court in it. In a private session for guests and students, he explained that “the judiciary is indisputably the least dangerous branch” (alluding to what Alexander Hamilton had written in Federalist No. 78). But, Alito added, since the judiciary wasn’t subject to the “checks” placed on the other branches, “that does not mean we are not dangerous.”
Nobody can say we weren’t warned.
David A. Kaplan, the former legal affairs editor of Newsweek, is the author of “The Most Dangerous Branch: Inside the Supreme Court in the Age of Trump.” He teaches at New York University.