The Imminent Overruling of Roe v. Wade? A Few Candid Thoughts Regarding Justice Alito’s Leaked Opinion.

Readers of this blog and anyone who knows me in any detail will likely testify that I do not mince words when it comes to the topic of abortion. I believe that it is the intentional, premeditated murder of another human being. I do not believe that moral exceptions exist for circumstances of rape, incest, or the mother’s health. In other words, I am a radical moralist with a big mouth.

I, however, can separate my radical moralism from my ability to conduct a candid legal analysis. Here are a few thoughts regarding Justice Alito’s leaked opinion overruling Roe v. Wade that do not include commentary on the leak itself.

I. There is an underlying constitutional inconsistency in Justice Alito’s opinion.

Justice Alito’s leaked opinion reads a lot like a legal history lecture. That is no accident. For the past fifty years, Supreme Court justices have contended over the proper formula under which to recognize fundamental unenumerated constitutional rights under the Fourteenth Amendment’s Due Process Clause. Most of the justices have agreed that the Due Process Clause guarantees substantive constitutional rights that are not explicitly mentioned in the Constitution – a doctrine known as substantive due process. A very small minority have disagreed – more on that in a moment.

As I have written, the so-called conservative justices had the better of the substantive due process argument until 2015, requiring that claimants demonstrate that the alleged right was “objectively, deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed.” In 2015, the so-called liberal justices cast doubt on this approach by constitutionalizing homosexual marriages under a theory that called for the courts to “exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect.”

With the 2015 liberal victory in mind, Justice Alito undertook to leave no doubt as to the conservative justices’ views on the struggle and their desire to reverse the reasoned judgment test. Thus, he penned an opinion that restored the proper substantive due process test for fundamental unenumerated rights and drove home the point by an exhaustive historical analysis.

As I read Justice Alito’s leaked opinion though, I can’t help but notice a major inconsistency in his approach. Justice Alito insists on faithfulness to history, but he nonetheless ignores the history that very small minority of justices like Clarence Thomas have accurately highlighted for the past 50 years. There is no such thing as substantive due process.

At the time of the Fourteenth Amendment’s drafting and ratification, none of its drafters understood its due process clause to guarantee substantive rights. Instead, they recognized it as guaranteeing procedural rights. The Fourteenth Amendment’s drafters, however, did recognize that its Privileges or Immunities Clause guaranteed unenumerated rights protection against state interference and specifically referenced the ancient case of Corfield v. Coryell to define those rights.

If Justice Alito truly insisted on historical accuracy, he should have joined Justice Thomas’s oft-stated contention that the Supreme Court should overturn its substantive due process jurisprudence and properly apply the Privileges or Immunities Clause. The fact that he failed to is a gaping inconsistency in an opinion otherwise very faithful to our nation’s history.

II. Why Did Justice Alito Pen The Opinion?

There is no question that a Supreme Court decision overruling Roe v. Wade will be the most politically consequential decision in our nation’s history since Roe itself. How did Justice Alito come to write the leaked decision, which will cement his legacy as a justice?

Allocating who writes a Supreme Court decision is a tricky business. If the Chief Justice is not in the majority as it appears that he is not, the final responsibility of assigning an opinion falls to the most senior justice in the majority. In this case, the most senior justice is Clarence Thomas. Justice Thomas could have easily assigned the opinion to himself. Why didn’t he?

Justice Thomas has repeatedly written that he cannot agree with decisions that reach their conclusions under the Supreme Court’s substantive due process doctrine, and he insists on a Privileges or Immunities analysis of unenumerated rights claims. His problem, however, is that he has yet to find other justices who share his steadfast willingness to die on that hill. Since the other justices will not endorse his view of the Fourteenth Amendment, Justice Thomas cannot write an opinion that the other justices will join even though they agree about how to decide the case. Why?

Justice Thomas’s views would almost certainly require the Supreme Court to reverse its protections for homosexual marriage, homosexual sodomy, and other reproductive rights decisions such as the right to contraception or at least find other bases for them. Overruling Roe v. Wade is enough of a risky expenditure of political capital for his fellow justices. Calling into question these other precedents would be a step too far political. Alas, Justice Thomas. Some day, you will not be the only one on the Court who truly does not care about politics.

Thus, the task of writing a decision that the other justices could agree with fell to Justice Alito as the next most senior justice in the majority.

III. If Justice Alito’s leaked opinion does become law, it likely will not open the door to overruling gay marriage.

Many commentators have sounded the alarm that Justice Alito’s leaked opinion will jeopardize gay marriage. I do not share their view for two reasons.

First, Justice Alito’s leaked opinion expressly states that it does not call into question any of the Court’s other substantive due process precedents. Obviously, people are right to be skeptical. The Supreme Court can do what it wants under the restored substantive due process standards, and, like Mississippi, a state will undoubtedly try to bring such a case to the Court where it may or may not find a receptive ear.

Second, Justice Anthony Kennedy went a step too far in Obergefell v. Hodges, the 2015 Supreme Court case recognizing constitutional protections for homosexual marriages. Despite the plaintiffs in Obergefell giving the Court the option to resolve the case on Equal Protection Clause grounds, Justice Kennedy and the majority insisted on resolving the case on substantive due process grounds, which are much shakier than their Equal Protection Clause argument was. Thus, I am of the view that any state seeking to get rid of homosexual marriage at the Supreme Court would fail.

IV. Abortion is back where it belongs.

Both sides of the abortion debate have called for the constitutionalization of extremes despite the United States Constitution providing no basis for either (for a contrary argument, see the fine work of Joshua Craddock). Where human life begins is still an inherently political question because it requires moral, philosophical, and scientific judgments. Courts are ill-suited to make any of those judgments.

Resolving political questions is ultimately our responsibility as a self-governing society. We will do so through our state legislatures. It is time for the United States to put its big boy-big girl pants on and go to work over an extremely contentious and important question. We will likely never find a universal consensus, but we will now be masters of a question that belongs to us as citizens of our respective states.

As misguided and depraved as I think our society’s morals are today, I would rather have the question decided by our elected legislatures than nine people in black robes masquerading their personal views on the subject as ambiguous legal principles. We at least will have a free-wheeling debate.

America can still stand such a debate, I hope.