The wheels on the bus come off, off, off
Well, the big news story from the U.S. Supreme Court this week, of course, was its unanimous ruling that the City of Boston could not refuse to fly what was described by the lawsuit's plaintiff as the “Christian flag.”
Oh, wait — I guess that there was one other story from the court making news this week.
Yes, unless you've just emerged from a cave, you know that last Monday a draft opinion by Justice Samuel Alito overturning the nearly 50 year-old precedent, Roe v. Wade, as well as its 1992 successor opinion, Planned Parenthood v. Casey, was leaked to the online news site Politico. If anything like Alito's opinion eventually becomes the ruling of the court, it will make abortion illegal in about half the country overnight.
It will also undermine a lot of other seemingly settled precedents based on the right to privacy, so that decisions about same sex marriage, contraception, same sex relationships generally, and even interracial marriage all are in jeopardy. So enormous was news of the leaked opinion that it temporarily drove news about both the war in Ukraine and the latest Covid variant off the front pages.
As I am, oh, about the 870,000th person to comment on this, there's little new I can add. Still, in no particular order, I offer the following observations about the opinion and what it says about the court as an institution:
• First, the current court is the most activist since the 1960s — perhaps ever. The court has gone out of its way to look for hot-button cases to decide — involving gun rights, the power of the federal government, making religious practices take precedent over generally-applicable laws — and, of course, abortion. The five-justice conservative majority (even without Chief Justice John Roberts) that was put in place minutes before Republicans lost the last election, and they only waited one term to start reversing as many liberal precedents as they could find — or even to start coming up with new rights, especially using the Free Exercise Clause of the First Amendment.
• Second, conservatives like to claim that judges appointed by Republican presidents don't “legislate from the bench,” they only “neutrally interpret the law.” That notion is laughable to anyone who has read Alito's opinion. It is the starkest proof ever put to print that the Supreme Court really is just a political body dressed up in black robes. Chief Justice Roberts likes to portray the court as otherwise — that the justices “just call balls and strikes” as he once famously said — but this opinion openly shows just how political it is.
Most telling is that Alito goes out of his way to cite mostly Democrats and liberal writers who have criticized Roe v. Wade at various times. Besides an article written by the late Ruth Bader Ginsburg (cited in just the fourth footnote of his opinion), my favorite such citation — and there are a lot of them — is about halfway through, when he cites a criticism by Archibald Cox, who was the first Watergate Special Prosecutor. Alito takes special pains to note that Cox also “served as Solicitor General under President Kennedy.”
Why bring up that Cox served under Kennedy? Because it's almost like he's pointing and shouting, “See! See! Democrats haven't liked Roe either!”
• A note about this being the handiwork of Justice Alito (aka, “Sour Sam,” for his tendency to roll his eyes and look physically pained when another justice dares to read aloud a dissent to one of his opinions). When the leak first occurred, there was no absolute proof that the document was legitimate. Those of us who have read lots of the court's opinions in what is known as “slip opinion” format, however (i.e., exactly as printed and published by the court), recognized that it checked every box — the distinctive typeface, the huge white margins, etc.
But Charles P. Pierce, who writes for Esquire, summed it up best: “he text is pure Alito. The tone is smug, and condescending, and nobody does smug and condescending better than Alito does . . . . e has a lip-curling hostility to the authors of Roe and Casey, the decisions that his opinion overturns. In this, his opinion reads like a comment on some ridiculous wingnut website.” Yeah, that's Sour Sam, all right. I had wanted to say a few words about how this would have been a completely different process had Chief Justice Roberts been in charge. But at the risk of alienating everyone by making this “first of a series,” I'll have to defer further comment until next time.